Meryem Nelson vs. Broadway By Amar Santana, LLC

Reply Other

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

oO 0 J AN Un Bh W N N O N O N N N N N O N O N e m mm e m e m e a e m e d e d Ww N N Un BR W N = O Y R N N N R W = O AEGIS LAW FIRM, PC KASHIF HAQUIE, 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 05:32:00 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 SPECIAL INTERROGATORIES, SET ONE, AND REQUEST FOR SANCTIONS Date: October 18, 2017 Time: 1:30pm Dept.: CX104 REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES O e 1 NN Wn O R W O N N O N N N N N N N N m e mm e m e m e m e d p t mm e d LW N N Wn RA W N =, O Y N N R W N e L INTRODUCTION Only two special interrogatories are at issue in this Motion, each seek routinely discoverable information: (1) contact information for Plaintiff's fellow non-exempt employees; and (2) information concerning other lawsuits, claims, or demands made against Defendant within the last five years for wage and hour violations. Defendant’s arguments against the production of such information are without merit, and many of which are being raised for the first time as a last-ditch attempt to prevent Plaintiff from prosecuting her case. The overarching theme in Defendant’s reasoning is circular-Defendant claims that Plaintiff cannot meet class certification requirements, and thus, Defendant refuses to produce the information Plaintiff is entitled to for her eventual class certification motion. The California Supreme Court in Williams v. Superior Court, 3 Cal. 5th 531, 544 (2017) (“Williams”) has reiterated a plaintiff's broad discovery rights in class and representative actions, holding that contact information for other employees the plaintiff seeks to represent “is within the proper scope of discovery” and “an essential first step to prosecution of any representative action.” Williams, at 544 (emphasis added). Defendant also argues, unconvincingly, that Plaintiff should not be entitled to class contact information because Defendant alleges that Plaintiff threatened other employees. Defendant never considered this banter a serious or credible threat to employee safety. Defendant never raised this argument until it’s Opposition, and in fact, did not terminate Plaintiff for allegedly making these remarks; instead, it told Plaintiff that she was being laid off due to a reduction in force. In reality, this argument is nothing more than a red herring designed to distract from the fact that that this information is routinely produced pre-certification. Defendant cannot maintain its monopoly over the class members to Plaintiff’s detriment. As with prior administrative or civil claims or demands, Defendant, on the one hand, contends that the request is overbroad, and yet also contends that the information is equally available, and thus, does not have to respond. What Defendant fails to recognize is that prior administrative claims or demands, like those filed with the Labor Commissioner, are not publicly available in the same way that a civil lawsuit is available. Plaintiff cannot pay a fee to search for -1- REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR DOCUMENTS OO 0 Nu ON wh A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 prior administrative complaints. However, Defendant, as a party to any prior claims or demands, has all of the information in its possession. Based on this Reply and the accompanying papers on file with the Court, Plaintiff respectfully requests that this Court compel Defendant to provide further responses to the special interrogatories in question, and grant Plaintiff's request for monetary sanctions. IL ARGUMENT A. Plaintiff is Entitled to the Requested Information Before Class Certification “[Dliscovery is the means by which proof of allegations is developed.” Williams, at p. 545 (citing C.C.P. § 2017.010). Contrary to this principle, Defendant’s Opposition urges this Court to deny Plaintiff access to information that is solely within Defendant’s possession on the grounds that Plaintiff has not met some pre-certification burden entitling her to such information. 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). Plaintiff seeks the contact information for Plaintiff’s fellow California employees during the relevant time period, which Plaintiff defined as four years prior to the filing of the instant action and through the date of Defendant’s response(s). “Access to contact information will often be warranted even before the adequacy of the named plaintiff and counsel’s representation has been vetted, a class certified, absent putative members made parties, and heightened duties imposed.” William, at 547 (citing Crab Addison, Inc. v. Superior Court, 169 Cal. App. 4th 958, 962, 969-975 (2008); Lee v. Dynamex, Inc., 166 Cal. App. 4th 1325, 1337-1338 (2008); Belaire-West Landscape, Inc. v. Superior Court, 149 Cal. App. 4th 554, 556, 562 (2007)). “In a class action, fellow class members are potential percipient witnesses to alleged illegalities, and it is on that basis their contact information becomes relevant.” Williams, at p. 547-548 (citing Pioneer Electronics (USA), Inc. v. 2. REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR DOCUMENTS Oo 0 N N N n n Re W N = RN N N N N N N N N e m e m ee e m p m mm e a e m o C ~J aN Wn NS Ww No - fa \O oo ~ (= ) wh + w No -_ OD Superior Court, 40 Cal. 4th 360, 374 (2007); Crab Addison, Inc. v. Superior Court, supra, 169 Cal. App. 4th at p. 969; Puerto v. Superior Court, 158 Cal. App. 4th 1242, 1254 (2008)). Plaintiff also seeks to compel Defendant to provide information concerning similar prior claims or lawsuits against Defendant during the relevant time period. This information will aid Plaintiff’s investigation into whether there are other pending cases, releases of claims, or settlements that would affect the numerosity inquiry at class certification, and therefore relevant. Accordingly, Plaintiff urges this Court to compel further responses from Defendant. B. Plaintiffs Discovery Seeks Relevant, Discoverable Information Defendant argues that Plaintiff's discovery is irrelevant, in part, because Plaintiffs 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. 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. As discussed throughout Plaintiff's moving papers, the information sought by Plaintiff is relevant to class certification requirements such as the identity of witnesses, and prior lawsuits which could tend to show whether any claims have been previously settled or whether Defendant knowingly committed certain violations. | C. Plaintiff’s Request for Class Contact Information is Not Overbroad Defendant claims Plaintiff's Special Interrogatory seeking class contact information is overbroad primarily because “she will not be able to meet class certification.” (Opposition at 3:14- 15.) This is not the test. 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). Contact information is routinely “warranted even before the adequacy of the named plaintiff and counsel's representation has been vetted, a class certified, absent putative class members made parties, and heightened duties imposed.” Williams, at p. 547 (citations omitted). Moreover, the “eventual proper scope of a putative -3- REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR DOCUMENTS oO 0 N N n n RAR W N = RN O N RN N N N N N N m m e e em ee e m e a em KW N N nn BR W N e m O N D 0 O N s w N e o representative action is as yet uncertain is no obstacle to discovery; a party may proceed with interrogatories and other discovery methods precisely in order to ascertain that scope.” Williams, at p. 551 (citing Union Mut. Life Ins. Co. v. Superior Court, 80 Cal. App. 3d 1, 9-12 (1978) (emphasis added)). In the same vein, Defendant argues against the production of the class contact information on the grounds that the class is not ascertainable because there are only 12 servers. Opposition at 3:14-18. Despite the fact that this argument is nonsensical and unavailing, Plaintiff need not prove ascertainability in order to obtain this information. See Crab Addison, Inc. v. Superior Court, 169 Cal. App. 4th 958, 962, 969-975 (2008); Lee v. Dynamex, Inc., 166 Cal. App. 4th 1325, 1337-1338 (2008); Belaire-West Landscape, Inc. v. Superior Court, 149 Cal. App.4th 554, 556, 562 (2007). Defendant further argues that the request for contact information for all class members (defined as all non-exempt employees) is overbroad because other putative class members have different positions and job duties. Opposition at 3:19-4:2. This argument is also unavailing. 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. Plaintiff is entitled to discover whether other class members had similar experiences as Plaintiff. D. Defendant’s Purported Safety Concerns are a Red Herring For the first time in its Opposition, Defendant argues that it cannot produce the class contact information due to safety concerns. Opposition at 4:4-12. 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, or attempt to obtain a restraining order against Plaintiff. Clearly, this is nothing more than a red herring designed to distract the Court from Defendant’s conduct. 1 1 ! 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 Special Interrogatories (“Supp. Decl.”), § 3, Exhibit A. REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR DOCUMENTS NO 0 N N Wn BR W N N N O N N O N O N N O N O N = mm em mm a e m e m em e d p m NR N N N nn BA W N N = O D N S N nn RE W N = o E. Any Privacy Concerns in the Putative Class Members’ Contact Information Can be Adequately Managed Through the Use of an Opt-Out Notice Defendant also argues that the production of class contact information invades class members’ rights to privacy. Opposition at p. 5:2-17. The identity and contact information for members of a putative class is routinely discoverable. See Williams, at p. 538. Where there are no serious invasions of privacy, as here, the opt-out notice procedure offered by Plaintiff is more than sufficient to protect the limited privacy interests that the putative class members have in their contact information. See Williams, at p. 552-555 (collecting cases). F. Information Responsive to Interrogatory No. 11 (Past Administrative or Civil Claims or Demands) is Not Equally Available Defendant simply has no justification for its refusal to provide information about any past administrative, civil claims or demands filed against in involving the same claims. Primarily, Defendant narrows the scope of the request to prior lawsuits, claiming they are publicly available, and thus, it is relieved of the duty of responding fully to the request. Certainly, Plaintiff's request seeks information 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 Request for Production No. 26 (discussed in Plaintiff's concurrently-filed Motion to Compel Further Responses to Requests for Production). -5- REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR DOCUMENTS Oo 0 N N N B R A W N NN N N N N N O N N O N m m em em e m pm s e d e m em p d «© N N RA W N = O e N O R W N ER Defendant further contends that the request is overbroad, but fails to articulate its reasoning behind this position. Opposition at p. 5:18-25. Nothing about this request is overbroad-it is limited in time and limited in scope and designed to discover information that is relevant to this matter (as discussed above). 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 6:2-3. 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. 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 7:10. 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 Plaintiffs counsel spent five (5) 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 contends that because this Motion and the concurrently filed Motion to Compel Further Responses to Request for Production of Documents are similar, that Plaintiff's counsel is double billing. Opposition at 7:15-18. This argument is without merit. Plaintiff's counsel submitted a declaration setting forth the time spent on this Motion in compliance with C.C.P. § -6- REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR DOCUMENTS NO 0 N N Wn Re W N = N O N O N N N N N N N =m mm E s em e m e m e d p d a 0 NN A N Wn BR W N = O O N N BR W N = Oo 2023.040, and tailored the motions to the discovery issues at hand. Any similarity in the argument is due to the similarity in Defendant’s untenable positions regarding the scope of discovery in class actions. Defendant also argues that Plaintiff is not entitled to sanctions because it acted with substantial justification in refusing to provide the discovery sought by this Motion because Plaintiff’s “Motion seeks information that is overbroad.” Opposition at 6:14. Nothing about Plaintiff’s special interrogatories is overbroad. As discussed herein, they are narrowly tailored to discover information related to class certification issues. However, Plaintiff sought to limit the private intrusion through allowing Defendant to redact identifying information, and, while not at issue in this Motion, utilize a privacy notice. 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. Among other things, Plaintiff proposed the use of a Belaire Notice regarding the class list, and offered ways to reduce the privacy intrusion through redactions. Instead, Defendant’s first meet and confer correspondence suggested little room for negotiation or compromise, nor did it assert that a protective order is a better vehicle for protecting privacy interests. Despite this, 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. 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 sent a response arguing that this “case is 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. 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., 99 - 11. 7 1 i" JT REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR DOCUMENTS NO 00 N N n t B R A W N N N N N N N O N DN DN N = em e m e m ee ee e m e m e a © ~ N N n BR W N = O O e N N N R W N = © IV. CONCLUSION For all the foregoing reasons, Plaintiff requests that her Motion to Compel Further Responses to Special Interrogatories be granted in its entirety, and that the Court order Defendant to produce supplemental responses without objections and pay sanctions within 10 days. Dated: October 11,2017 AEGIS LAW FIRM, 0 By [0 1 C ( Ali S. Carlsen Attorneys for Plaintiff -8- REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR DOCUMENTS OO 0 J ON WU RA W O N em N N N N N N NN OD N O N mm r m m i md mk p m p m p m e m p a c e ~ ~ ] O N Ln bh W N = O DO N N S W N e e © 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 fa my business address is 9811 Irvine Center Drive, Suite 100, Irvine, California 18. On October 11, 2017, I served the foregoing document entitled: e REPLY IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, 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 1 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).) (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. Grethel Gonzalez CERTIFICATE OF SERVICE