Meryem Nelson vs. Broadway By Amar Santana, LLC

Reply Other

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

OO 0 3 O&O Wn HH W N N O N N N N N N N N = o m e m p m pe e m mm k d pe cw ~ 1 ON Un B R A W N = O O N N Rs W N R D AEGIS LAW FIRM, PC KASHIF HAQUE, State Bar No. 218672 SAMUEL A. WONG, State Bar No. 217104 JESSICA L. CAMPBELL, State Bar No. 280626 ALI S. 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 Meryem Nelson, ELECTRONICALLY FILED Superior Court of California, County of Orange 104172017 at 05:55:00 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 MERYEM NELSON, individually and on behalf of all others similarly situated Plaintiffs, Vs. BROADWAY BY AMAR SANTANA, LLC, a California corporation; and DOES 1 through 20, inclusive, Defendants. Case No. 30-2016-00888538 Assigned for all purposes to Hon. Kim G. Dunning, Dept. CX104 REPLY IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE AND REQUEST FOR SANCTIONS Date: October 18, 2017 Time: 1:30pm Dept.: CX104 REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR DOCUMENTS o e N N nn B R A W N e e R O N N N N N N N N m e e m e m e m em p m md e d 0 N A A N Wn RR W N mR, O N R W N e , L INTRODUCTION Defendant’s Opposition does not dispute that it applied the same wage and hour policies, timekeeping systems, and payroll systems for its non-exempt employees during the relevant time period. Instead, while relying on evidence in its sole possession, Defendant’s Opposition misapplies pre-certification discovery standards and concludes that because “this [case] is not a class action,” Defendant should not be compelled to provide further responses containing information about the class - Defendant cannot have its cake and eat it too. Defendant’s continued refusal to produce class-wide responses is prejudicial to Plaintiff's ability to investigate and prepare her case for class certification. Whether this case is amenable for class treatment should be determined at the class certification stage, not based on objections to discovery requests or on a motion to compel further responses. Plaintiff respectfully requests that this Court grant Plaintiff access to the information she seeks in her discovery requests before deciding whether Defendant’s policies resulted in a class- wide underpayment to its employees under California law. IL. ARGUMENT A. Plaintiff Is Entitled To Discovery About The Class Before Class Certification. Defendant applies the wrong standard for a discovery dispute. The gravamen of Defendant’s Opposition is that Plaintiff must meet class certification requirements before she is entitled to class- wide discovery. Binding state court decisions, however, have made clear that Plaintiff is entitled to seek evidence related to class certification requirements, such as commonality, typicality, and adequacy, as well as the general wage and hour issues before class certification. See Bartold v. Glendale Federal Bank, 81 Cal. App. 4th 816, 836 (2000). Defendant inappropriately argues that since Plaintiff “will not be able to meet class certification,” she should not be entitled to her requested discovery on a class-wide basis. Opposition at 3:14-15. But that is the very purpose of Plaintiff’s requests - to ascertain information necessary to determine issues related to class certification. Defendant also raises other arguments, which Plaintiff will address below. 1 -1- REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR DOCUMENTS Oo 0 N N n k W N BRN O N N N N N N N N mm e m e m mm m m p m e m e m ea d 0 NN S N n t BA W N = O Y e N N N D R E W e S B. Plaintiff’s Requests Are Not Overbroad Defendant claims Plaintiff's requests are overbroad, based upon the representation that Plaintiff’s job duties are different from other putative class members. Besides the fact that Defendant is asking Plaintiff and the Court to take them at their word, Defendant does not deny nor dispute that its common wage and hour policies, such as timekeeping, meal and rest period, wage statement, and final pay policies, applied to all its non-exempt employees. Defendant further fails to recognize that the Labor Code sets forth the same requirements for providing meal and rest periods to Defendant’s non-exempt employees regardless of job duties. Defendant further claims that Plaintiff “ignored Broadway’s attempts to meet and confer regarding ‘Non-Exempt Employee’ (Opposition at 3:19-24), but other than claiming other positions have different job duties, Defendant offers no other compelling reason why Plaintiff’ should be precluded from obtaining class certification discovery about Defendant’s non-exempt employees so that Plaintiff can confirm whether these differing job duties prevent class certification, or that Plaintiff’s class definition should be limited at this stage in the litigation. Defendant’s Opposition admits that these employees, despite having different job duties, are non- exempt employees, and thus, are entitled to the same meal and rest periods as Plaintiff and other putative class members in Plaintiff’s same position. Plaintiff requires adequate, code-compliant responses to her Requests and the opportunity to objectively review relevant information to determine for herself, to better educate the parties of the claims and defenses, and to better educate the Court at class certification. C. Plaintiff’s Requests Seek Relevant, Discoverable Documents And Information Plaintiff is entitled to any discovery that “might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof.” Gonzalez v. Super. Ct., 33 Cal. App. 4th 1539, 1546 (1955). In class actions, Plaintiff is entitled to seek evidence related to class certification requirements, such as commonality, typicality, and adequacy, as well as the general wage and hour issues in this matter “before the class is certified, not after.” Bartold v. Glendale Federal Bank, 81 Cal. App. 4th 816, 836 (2000) (emphasis added). The information sought by Plaintiff’s requests Ji REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR DOCUMENTS DO 0 N N N n t RA W N N O N O N O N O N N N O N O N m m m m em mm ed a em em 0 ~~ NN Wn hs W N = D o N R A W N e , seeks information about the putative class, Defendant’s policies and practices, and how those policies and practices were applied to the putative class. Defendant argues that Plaintiff's PAGA claim, as alleged in the Complaint, First Amended Complaint, and the Second Amended Complaint are vague and sparse with information. Opposition at 2:11-17 (citing Labor Code § 2699.3, subd. (a)(1)(A). Primarily, Defendant’s argument convolutes the administrative exhaustion notice requirement with the pleading requirements. Indeed, the California Supreme Court has rejected this very argument: “Nothing in Labor Code section 2699.3, subdivision (a)(1)(A), indicates the ‘facts and theories’ provided in support of ‘alleged’ violations must satisfy a particular threshold of weightiness, beyond the requirements of nonfrivolousness generally applicable to any civil filing.” Williams v. Superior Court, 3 Cal. 5th 531, 545 (2017). Further, if Defendant is challenging the pleadings, then an opposition to a motion to compel further discovery responses is not the appropriate vehicle to do so. Therefore, the Court should reject arguments on this basis. D. Defendant’s Privacy & Safety Concerns Are Exaggerated Defendant argues that it should not be compelled to produce class member contact information (which is not at issue in this Motion) out of fear for the class members’ safety is exaggerated. Defendant clearly did not take an employee’s banter as a credible threat-it did not fire Plaintiff for those statements’, did not file a police report, attempt to obtain a restraining order against Plaintiff, or even raise the issue during the meet and confer process. Clearly, this is nothing more than a red herring designed to distract the Court from Defendant’s conduct. Indeed, the information and documents Plaintiff secks, such as timekeeping records, policy documents, exemplars of wage statements, exemplars of meal period waiver forms, and prior lawsuits, would not implicate any privacy concerns. Any privacy concerns arising from the production of other documents such as time records, wage statements, communications with non- exempt employees, and/or surveys, can be mitigated through redaction and the use of unique I Plaintiff was told that she was being laid off due to a reduction in forced as the reason for her termination. See Supplemental Declaration of Ali S. Carlsen in Support of Plaintiff’s Reply to Motion to Compel Further Responses to Requests for Production (“Supp. Decl.”), § 3, Exhibit A. REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR DOCUMENTS o w N N Bh W N N O N N RN N N N N N r e e m e m e m e m p d p d md e d ce ~~ A N nn RA W N =, O O Y Y R W = o identifiers-which Plaintiff proposed in her meet and confer letter. See Declaration of Ali S. Carlsen in Support of Motion to Compel Further Responses to Requests for Production of] Documents (“Carlsen Decl.”), Exhibit C at p. 7. E. Defendant Was (Or Should Have Been) Well Aware That A Privilege Log Is|. Required Defendant claims that Plaintiff surprised Defendant about the requirement of providing a privilege log when information subject to the work product doctrine or attorney-client privilege is implicated. Opposition at 5:20-23. Defendant misstates the truth. Defendant need look no further than Paragraph 3 of Plaintiff’s instruction in its Request for Production of Documents, which specifically asks Defendant to provide specific items of information regarding any documents being withheld on the basis of a privilege - otherwise known as a privilege log. See Carlsen Decl., Exhibit A at p. 4. Moreover, in light of Defendant’s unsubstantiated attorney-client privilege objections, Plaintiff specifically requested a privilege log in her first meet and confer letter to Defendant. See Carlsen Decl., Exhibit C at p. 2 (“While none of Plaintiffs requests specifically request attorney client communications or attorney work- product, to the extent that Defendant is withholding the production of documents on the basis of attorney-client privilege, Plaintiff requests that Defendant provide a supplemental response that substantiates that objection and produce a privilege log.” [emphasis added]). The requirement of providing a privilege log is also codified by statute and case law. “If an objection is based on a claim that the information sought is protected by work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.” Code Civ. Proc. §2031.240(c)(1). As to these objections, case law has provided that simply asserting a boilerplate objection without any substantiating facts or qualifications is grounds for compelling a further response. See Best Products, Inc. v. Superior Court, 119 Cal. App. 4th 1181 (2004). F. Request No. 26 (past administrative or civil claims) Is Not Equally Available Defendant claims that documents responsive to Request No. 26 (seeking administrative or civil complaints filed against Defendant for the same claims) are equally available, and thus, it l= REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR DOCUMENTS Oo 0 NN S N wn RA W N = R O N RN N N N O N N N mm m e mm e m mR ee me em pe a3 O N nn BA O W N = O YO O e a N D R A W N Rk, should not be compelled to produce any responsive documents, let alone, supply a code-compliant response. Opposition at 6:4-5. Defendant simply has no justification for its refusal to provide such information. Primarily, Defendant narrows the scope of the request. Certainly, Plaintiff’s request seeks documents relating to prior lawsuits, but Plaintiff’s request also seeks other administrative claims such as those filed with the Labor Commissioner. This information could show, among other things, whether Defendant knowingly and intentionally committed certain Labor Code violations (see e.g., Labor Code § 226(e)(1)), and whether any prior settlements could affect the scope of Plaintiff's claims here. Defendant, as the employer, would have been a party to past administrative or civil claims against it, and therefore, its owners, directors, managers, and/or agents, would have possession, custody, or control over some or all of the requested information. Further, unlike civil lawsuits, administrative complaints, like those filed with the Labor Commissioner, are not accessible through an online, paid search. The unjustified nature of Defendant’s position is further highlighted by the fact that Defendant also refuses to provide written response to Plaintiff's Special Interrogatory No. 11 (discussed in Plaintiff's concurrently-filed Motion to Compel Further Responses to Special Interrogatories) which seeks the information that would enable Plaintiff to avoid paying a fee to search like the case number and court location. G. Defendant Must Move For A Protective Order Defendant’s Opposition requests that the Court enter a protective order “regarding any and all information divulged in this litigation.” Opposition at 6:7-8. Notwithstanding the fact that Plaintiff has offered compromises that would protect the privacy rights of any putative class member, Defendant’s request for a protective order is procedurally improper. A party who seeks the entry of a protective order must promptly move via a noticed motion and show good cause for the issuance of a protective order. See C.C.P. § 2031.060(a); Stadish v. Superior Court (Southern Calif. Gas Co.), 71 Cal. App. 4th 1130, 1145 (1999). Defendant has not done that, nor has it presented the Court with any good cause as to why it’s request should be granted. 5. REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR DOCUMENTS © ® N N Wn A W O N N N N N N RN N N DN mm mm e m = em ee e m em md 0 N N N LL A W N P , D Y NN YY RR W N = o III. MONETARY SANCTIONS AGAINST DEFENDANT ARE JUSTIFIED Defendant contends that Plaintiff's request for sanction should be denied, in part, because it contends that “the amount of sanctions Plaintiff seeks is unreasonable and unsupported.” Opposition at 7:14. For a request for sanctions, California Code of Civil Procedure § 2023.040 simply requires that Plaintiff submit a “declaration setting forth facts support the amount of any monetary sanction sought.” Indeed, despite Defendant’s suggestions otherwise, Plaintiff’s counsel’s declaration breaks down the time spent on each part of this Motion; it states that Plaintiff’s counsel spent six (6) hours preparing the moving papers, will spend one (1) hour reviewing Defendant’s Opposition and preparing the reply (a conservative estimate), and one (1) hour attending the hearing on this Motion. Carlsen Decl. § 9. Defendant cites to no authority to support its suggestion that time sheets are required. Defendant further asserts that Plaintiff is not entitled to sanctions because it acted with substantial justification in refusing to provide the discovery sought by this Motion because it sought Defendant’s employees’ contact information. Opposition at 7:9-12. However, contact information is not at issue in this Motion”. Plaintiff agreed to allow Defendant to redact identifying information and replace with a unique identifier. See Carlsen Decl., Exhibits C & E. All compromises were rejected by Defendant. Finally, Defendant suggests that Plaintiff failed to adequately meet and confer, and thus, is not entitled to sanctions. This is wholly misleading. Defendant’s first meet and confer correspondence suggested little room for negotiation or compromise. See Carlsen Decl., Exhibit D. Indeed, Defendant wholly failed to meet and confer on Requests No. 32 and 33. Prior to filing this Motion, Plaintiff's counsel sent another meet and confer letter “[i]n the hopes of avoiding a motion to compel.” See Carlsen Decl., Exhibit E, p. 1. However, instead of continuing to engage in the meet and confer process, or even indicate that it was still interested in continuing in the meet and confer process on the requests at issue in this Motion, Defendant simply stated that this “case is 2 Class member contact information is, however, at issue in the concurrently filed Motion to Compe] Further Responses to Special Interrogatories. -6- REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR DOCUMENTS Oo 0 0 N N nn BR W N N O N N D N N N N N N = mm e m e m e m e m kd e d p d Kw N N nn BE W N = C O R N R W N = nothing more than a nuisance matter.” Seeing that the parties had reached an impasse on these requests, Plaintiff was forced to file the instant Motion. Defendant’s Opposition is indicative of the gamesmanship it has engaged in to limit Plaintiff access to relevant, discoverable information. Defendant continues to ignore the purpose of and permissible scope of discovery at this pre-certification stage of litigation. Its objections and the arguments it sets forth are too general, without merit, frivolous, and intended to impede the discovery process. “Limiting discovery would grant the defendant a monopoly on access to its customers or employees and their experiences and artificially tilt the scales in the ensuing litigation. See Pioneer Electronics (USA), Inc. v. Superior Court, 40 Cal. 4th 360, 374 (2007). Accordingly, Plaintiff respectfully requests monetary sanctions in the amount of $2,860 to compensate her for the time and expense associated with preparing the instant motion. See Carlsen Decl., 49 - 11. IV. CONCLUSION For all the foregoing reasons, Plaintiff requests that her Motion to Compel Further Responses to Plaintiff’s Requests for Production of Documents be granted in its entirety, and that the Court order Defendant to produce supplemental responses and produce documents without “objections and pay sanctions within 10 days. Dated: October 11,2017 AEGIS LAW FIRM, PC Cc ~_ By // / A - ~~ Ali S. Carlsen Attorneys for Plaintiff - REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR DOCUMENTS oO 0 N N n n BR W N ) e e BN N N N N N N N N e m e m e m e m e m e m em a c o NN O N nn A W N = O W 0 N S N W N = 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 October 11, 2017, I served the foregoing document entitled: e REPLY IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE AND REQUEST FOR SANCTIONS on all the appearing and/or interested parties in this action by placing [X] the original [| a true copy thereof enclosed in sealed envelope(s) addressed as follows: FORD & DIULIO PC Kristopher P. Diulio kdiulio@forddiulio.com Brendan M. Ford bford@forddiulio.com Jessica A. Diulio Jdiulio@forddiulio.com Tyler E. Sanchez Tsanchez@forddiulio.com Eric V. Ta Eta@forddiulio.com Attorneys for Defendant: Broadway by Amar Santana, LLC [] (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).) ] (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 October 11, 2017, at Irvine, California. z Grethel Gonzalez CERTIFICATE OF SERVICE