Jayme Fiscus vs. Floyd'S 99 Growth Vi, LLC

Reply to Motion

Cal. Super. - 4th Dist.October 21, 2016

N N n n BR W N 10 11 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 AEGIS LAW FIRM, PC SAMUEL A. WONG, State Bar No. 217104 KASHIF HAQUE, State Bar No. 218672 JESSICA L. CAMPBELL, State Bar No. 280626 ALIS. CARLSEN, State Bar No. 289964 9811 Irvine Center Drive, Suite 100 Irvine, California 92618 Telephone: (949) 379-6250 Facsimile: (949) 379-6251 Attorneys for Plaintiff Jayme Fiscus, ELECTRONICALLY FILED Superior Court of California, County of Orange 03/29/2018 at 04:26:00 PM Clerk of the Superior Court By Sarah Loose Deputy Clerk individually and on behalf of all others similarly situated SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE JAYME FISCUS, individually and on behalf of all others similarly situated, Plaintiffs, vs. FLOYD'S 99 GROWTH VI, LLC; FLOYD'S 99-CALIFORNIA LLC, and DOES 1 through 20, inclusive, Defendants. Case No. 30-2016-00882967-CU-OE-CXC Assigned for all purposes to: Hon. Glenda Sanders Dept. CX101 PLAINTIFF’S REPLY IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET ONE FROM DEFENDANT FLOYD’S 99 GROWTH VI, LLC AND REQUEST FOR SANCTIONS Date: April 6,2018 Time: 1:30pm Dept.: CX101 REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET ONE FROM FLOYD'S 99 GROWTH VI, LLC S w o o n = E E ~. 10 11 15 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 L INTRODUCTION Defendant Floyd's 99 Growth VI, LLC (“99 Growth”) never served a single substantive response or produced a single responsive document until affer Plaintiff filed her motions to compel-nearly 8 months after the requests were served. Clearly, it was Plaintiff’s motions that were the catalyst for 99 Growth finally providing supplemental responses, and thus, Plaintiff should be awarded sanctions to compensate her for the time and expense she was forced to incur due to 99 Growth’s misconduct. II. PLAINTIFF IS ENTITLED TO SANCTIONS DUE TO 99 GROWTH’S MISUSE OF THE DISCOVERY PROCESS The Discovery Act allows this Court to impose sanctions against any party who has engaged in misuse of the discovery process. See Cal. Code Civ. Proc. § 2023.030. Misuse includes failing to respond to discovery, making unmeritorious objections to discovery, or failing to confer with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery. See Cal. Code Civ. Proc. §§ 2023.010(d), (¢), (i) and 2023.030. While 99 Growth asserts that Plaintiff’s Motion is moot, this Court is anibiized to award sanctions to “any party who files a motion to compel discovery, even though...the requested discovery was provided to the moving party after the motion was filed.” See Cal. Rules of Court, Rule 3.1348. 99 Growth’s conduct is nothing short of misuse. Primarily, 99 Growth concedes that Plaintiff has been entitled to supplemental responses since at least September 29, 2017. Instead, it tries to minimize the nearly 8-month delay simply as “a period of delay between the discovery propounded and the date it supplemented its responses”. See Opposition at p. 7. In reality, during the eight months between the time the requests were served and the supplemental responses were provided, 99 Growth was given five extensions; of] those five deadlines, on two of them, 99 Growth outright failed provide anything or request additional time until after Plaintiff’s counsel followed up. See Declaration of Ali S. Carlsen in Support of Plaintiff’s Motion to Compel Further Responses to Special Interrogatories, Set One from Defendant Floyd's 99 Growth VI, LLC (“Carlsen Decl.”), qf 10- 23. When 99 Growth failed to -1- REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET ONE FROM FLOYD'S 99 GROWTH VI, LLC wn o R W N Oo 0 N N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 provide supplemental responses by the fifth and last deadline, Plaintiff was forced to file her motions to compel, which were clearly the catalyst for the supplemental responses finally being provided. Moreover, while 99 Growth provided supplemental responses on March 9, 2018, responsive documents were not received until a week later (March 16, 2018). See Supplemental Declaration of Ali S. Carlsen (“Supp. Decl.”), 19 4-5. 99 Growth wants this Court to believe that it was participating in the discovery process in good faith and was simply affected by delays outside of its, and its counsel’s control. However, after Plaintiff filed her motions, and prior to 99 Growth providing its supplemental responses, 99 Growth’s counsel sent Plaintiff’s counsel an email proposing that Plaintiff take her motions off- calendar while telling her “[i]n short, if you want a fight, you got one. At this point, I personally would prefer that.” See Supp. Decl., § 3, Ex. 1 (emphasis added). This is not the statement of a party that is engaging in the discovery process in good faith. Based on these grounds, Plaintiff respectfully requests monetary sanctions in the amount of $1,810.00 to compensate her for the time and expense associated with preparing and filing the instant motion. See Carlsen Decl. 9 25-27. Dated: March 29,2018 AEGIS LAW FIRM, PC By UA [- ~ Ali S. Carlsen i for Plaintiff <3 REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET ONE FROM FLOYD’S 99 GROWTH VI, LLC vo oo 3 O N n o s W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE I, the undersigned, am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action; am employed with Aegis Law Firm PC and my business address is 9811 Irvine Center Drive, Suite 100, Irvine, California 92618. On March 29, 2018, 1 served the foregoing document entitled: eo PLAINTIFF'S REPLY IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET ONE FROM DEFENDANT FLOYD’S 99 GROWTH VI, LLC AND REQUEST FOR SANCTIONS on all the appearing and/or interested parties in this action by placing [ | the original [X] a true copy thereof enclosed in sealed envelope(s) addressed as follows: OGLETREE DEAKINS NASH SMOAK & STEWART, P.C. Spencer C. Skeen spencer.skeen@ogletree.com Tim L. Johnson tim.johnson(@ogletree.com Nick Djordjevski Nikolas.djordjevski@ogleetree.com Attorneys for Defendants: Floyd's 99 Growth VI LLC; Floyd's 99 - California LLC [1] (BY MAIL) I am readily familiar with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Irvine, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postage cancellation date or postage meter date is more than one day after date of deposit for mailing this affidavit. (Cal Code Civ. Proc. § 1013(a); Fed. R. Civ. Proc. 5(a); Fed. R. Civ. Proc. 5(c).) [1 (BY OVERNIGHT MAIL) I am personally and readily familiar with the business practice of Aegis Law Firm PC for collection and processing correspondence for overnight delivery, and I caused such document(s) described herein to be deposited for delivery to a facility regularly maintained Federal Express for overnight delivery. (Cal Code Civ. Proc. § 1013(c); Fed. R. Civ. Proc. 5(c).) X (BY ELECTRONIC TRANSMISSION) I caused said document(s) to be served via electronic transmission to the addressee(s) listed above on the date below. (Cal. Code Civ. Proc. § 1010.6(6); Fed. R. Civ. Proc. 5(b)(2)(E); Fed. R. Civ. Proc. 5(b)(3).) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on March 29, 2018, at Irvine, California. Grethel « & 5 CERTIFICATE OF SERVICE