Jennifer Avalos vs. Wsp Group Corporation

Motion to Compel Answers to Interrogatories

Cal. Super. - 4th Dist.February 3, 2017

N O 0 N N n n B A W N = N S N N N N N N N N e e e d e e e e e m e s e s e s Ww W ~ N 1 A N R A W N = C O N N R W N Y O AEGIS LAW FIRM, PC KASHIF HAQUE, State Bar No. 218672 SAMUEL A. WONG, State Bar No. 217104 JESSICA LL. 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 PlaintiffJENNIFER AVALOS, individually and on behalf of all others similarly situated SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE JENNIFER AVALOS,individually and on Case No. 30-2017-00901303-CU-OE-CXC behalf of all others similarly situated Assignedfor allpurposes to Hon. William Plaintiffs, Claster, Dept. CX102 VS. PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES FROM WSP GROUP CORPORATION, dba DEFENDANT WSP GROUP WIENERSCHNITZEL #452, a California CORPORATION, dba WIENERSCHNITZEL corporation; and DOES 1 through 20, #452 TO PLAINTIFF’S SPECIAL inclusive, INTERROGATORIES, SET ONE AND REQUEST FOR SANCTIONS; Defendants. MEMORANDUM OF POINTS AND AUTHORITIES [Filed concurrently with Declaration ofAli S. Carlsen and [Proposed] Order] Hearing Date: October 27, 2017 Hearing Time: 9:00 a.m. Department: CX102 Reservation No.: + 72667764 PLAINTIFF'S MOTION TO COMPEL RESPONSES TO SPECIAL INTERROGATORIES, SET ONE oO o 0 N N U n R s W N N O N O N N N N N O N O N m m oe m me m e m e m e m e m p e p m C w ~ ~ O N W n B R W N = D N O 0 N n R W N = , TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICEthat at 9:00 a.m. on October 27, 2017, or as soon thereafter as the matter can be heard, in Department CX102 ofthe above-entitled Court, located at 751 W. Santa Ana Blvd, Santa Ana, California 92701. Plaintiff Jennifer Avalos (“Plaintiff”) will, and hereby does, move the Court for an order requiring Defendant WSP Group Corporation, dba Wienerschnitzel #452 (“Defendant”) to provide responses to Plaintiff’s Special Interrogatories, Set One (“Motion”). This motion is made pursuant to Cal. Code Civ. Proc., § 2030.290. The Motion is made on the grounds that Plaintiff served her Requests on May 1, 2017 and, after granting numerous extensions, as ofthe date ofthe filing ofthis Motion, Defendant has failed to serve responses or produce documents. As such, Plaintiffhas no choice but to proceed with this Motion. PLEASE TAKE FURTHER NOTICE that Plaintiff will, and hereby does, move the Court for an order pursuant Cal. Code Civ. Proc., §§2023.010, 2023.030 and 2030.290(b), awarding Plaintiff sanctions in the amount of $1,460.00 against Defendant and/or its counsel for its failure to engage in the discovery process and serve responses in a timely manner. This motion is based on this Notice of Motion and Motion, Memorandum of Points and Authorities, Declaration of Ali S. Carlsen, all exhibits attached thereto, and on other documents, arguments or evidence as may be presented at the hearing ofthe motion. Dated: September 22, 2017 AEGIS LAWre, PC o | By: (|Li 8S. Carlsen Attorneys for Plaintiff j- PLAINTIFF'S MOTION TO COMPEL RESPONSES TO SPECIAL INTERROGATORIES, SET ONE N O 0 N Y i B R A W N D D N N N R N N N N = m m e e e m e m h m e m e m e d W W N N n n RA R W N = O D N S R W N Y e e MEMORANDUM OF POINTS AND AUTHORITIES L INTRODUCTION By this Motion, Plaintiff Jennifer Avalos (“Plaintiff”) seeks an order from this Court compelling Defendant WSP Group Corporation, dba Wienerschnitzel #452 (“Defendant™) to respond to Plaintiff's Special Interrogatories, Set One. The discovery requests at issue in this Motion are necessary, basic class certification requests. Plaintiff mail-served these discovery requests on Defendant on May 1, 2017. Plaintiff] agreed to an informal discovery hold in light of the parties’ agreement to attend private mediation so long as Defendant was willing to provide the necessary information for mediation to be fruitful. After three months, multiple extensions, and nothing but delay, by August 2017, Plaintiff still did not even have the basic information about the class such as the class size, average rate ofpay, and Plaintiff’s time records. Accordingly, on August 9, 2017, Plaintiff was forced to cancel the mediation and proceed with formal discovery, making Defendant’s discovery responses due on August 25, 2017. However, to date, Defendant still has not responded to Plaintiff's Special Interrogatories. Therefore, Plaintiffrespectfully requests that the Court issue an order compelling Defendant to respond to Plaintiff’s Special Interrogatories, without objections. Plaintiff also seeks an order imposing sanctions on Defendant and/or its counsel for the failure to respond to discovery. IL STATEMENT OF RELEVANT FACTS Plaintiff filed the Complaint in this case against Defendant on February 3, 2017 alleging: (1) Failure to Pay Overtime Compensation; (2) Failure to Provide Meal Periods; (3) Failure to Permit Rest Breaks; (4) Failure to Provide Accurate Itemized Wage Statements; (5) Failure to Pay All Wages Due Upon Separation ofEmployment; (6) Violation of Business and Professions Code §§ 17200,ef seq.; and (7) Enforcement of Labor Code §§ 2698, ef seq. See Declaration of Ali S. Carlsen in Support ofPlaintiff’s Motion to Compel Responses to Plaintiff’s Special Interrogatories, Set One (“Carlsen Decl.) { 3. On May1, 2017, Plaintiffpropounded herfirst ofdiscovery requests to Defendant including Plaintiff’s Requests for Production of Documents and Special Interrogatories, Set One. Carlsen -1- PLAINTIFF'S MOTION TO COMPEL RESPONSES TO SPECIAL INTERROGATORIES, SET ONE N O 0 N N W n R W = N N N O N O N N O N N N m m e m e m e m e d e m p d e a e m p e 2 8 8 B 8 R E I R E I S & 3 2 & 3 2 0 8 2 5 Decl., § 4, Exhibit A. The purpose of Plaintiff's Discovery Requests were to obtain information directly related to Plaintiff’s claims and Defendant’s defenses. In or about May 2017, the parties agreed to attend private mediation. Carlsen Decl., 5. On May 19, 2017, Plaintiff agreed to an informal hold on the written discovery pending mediation so long as Defendant provided Plaintiffwith certain data points about the class and the claimsin order for Plaintiff to analyze Defendant’s exposure. Id. at 6. Between May 2017 and August 2017, Plaintiff’s counsel followed up with Defendant’s counsel regarding the data points, but ultimately was not provided with a scintilla of information about the class, and was forced to cancel the mediation. /d. at § 7. On August 9, 2017, Plaintiff’s counsel informed Defendant’s counsel that Defendant's discovery responses would be due on August 25, 2017, which accounted for the time remaining on Defendant’s discovery responses at the time Plaintiff agreed to the informal hold. Id. at § 8, Exhibit B. On August 30, 2017, after the deadline for Defendantto respond to the written discovery (and thusafter its objections had been waived), and after Plaintiff's counsel raised the discovery responses with the Court at the August 29, 2017 Status Conference, Defendant’s counsel emailed Plaintiff's counsel requesting “a few days to respond”. Id. at § 9, Exhibit C. Plaintiffs counsel responded, giving Defendant until September 7, 2017 to provide responses to the outstanding discovery, without objection. Id On September 12, 2017, having not received Defendant’s discovery responses, Plaintiff’s counsel emailed Defendant’s counsel asking about the responses and requesting courtesy copies of the responses, if served. Id. at § 10, Exhibit D. On September 13, 2017, Defendant’s counsel responded to Plaintiff's counsel’s email stating that Defendant would serve the responses and documents by email “tomorrow afternoon” (September 14,2017). Id. As of the date of this Motion, Defendant still has not served responses or produced documents. Id. at § 11. Between August 9, 2017 and August 25, 2017, Defendant did not request an extension of time to respond to the discovery. Id. at 12. Hn 1 I 2- PLAINTIFFS MOTION TO COMPEL RESPONSES TO SPECIAL INTERROGATORIES, SET ONE 0 0 N N n h B R W N e e N N N N N N N N N m m m m m m e m e m 0 ~ ~ O N h h k r W N = O N D N N i B R W N e e O o III. ARGUMENT A. No Attempt to Informally Resolve is Required. The moving party is not required to show a “reasonable and good faith attempt” to resolve the matter informally with opposing counsel before filing the motion. CCP § 2030.290; Sinaiko Healthcare Consulting, Inc. v Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411; see also Leach v. Superior Court (1980) 11 Cal.App.3d 902, 906. The failure to timely respond waives all objections to the interrogatories; so there are no issues left to “resolve” with opposing counsel. See Leach v. Sup.Ct. (Markum), supra. Here, despite having no obligation to do so, Plaintiff’s counsel contacted Defendant’s counsel’s office twice in an attempt to avoid filing the Motion. However, having received no such responses nearly a month after they were due, Plaintiff was therefore forced to file the Motion. B. This Court Should Compel Defendant to Respond Immediately to Plaintiffs Special Interrogatories, Set One. Code of Civil Procedure section 2030.290(b) provides that “[i]f a party to whom interrogatories are directed fails to serve a timely response . . . [tlhe party propounding the interrogatories may move for an order compelling response to the interrogatories.” Cal. Code Civ. Proc. § 2030.290(b). Plaintiff mail-served her Special Interrogatories, Set One on Defendant on May 1, 2017. Carlsen Decl, § 4, Exhibit A. After numerous extensions, Defendant’s responses would have been due on August 25,2017. Id. at §5-12, Exhibits A through D. Nearly a month has passed since Defendant’s responses were due, and yet, Defendant still has not provided any response to these special interrogatories. Id. atJ 8-12. Therefore, this Court should grant an order compelling Defendant to immediately respond to Plaintiff’s Special Interrogatories, Set One. C. Defendant has Waived All Objections to Plaintiff's Special Interrogatories, Set One. Where a party fails to respond to interrogatories within the time allotted by statute, the party waives “any objection to the interrogatories, including based on privilege or on the protection for work product . . ..” Cal. Code Civ. Proc. § 2030.290(a). Plaintiff's Special Interrogatories, Set One were mail-served on May 1,2017. On May 19, 2017, nineteen (19) dayslater, when Plaintiff -3- PLAINTIFF’S MOTION TO COMPEL RESPONSES TO SPECIAL INTERROGATORIES, SET ONE O O 1 YN Wn bh W N = N O N N N N N N N N = e m e m e m e m p m ee d p d e d 0 N N W R W N = D O N A N R W = D agreed to the informal discovery hold, Defendant had sixteen (16) days left on its time, after the email on the 19th, (30 days + 5 days from the date of mail service) to respond to Plaintiff's discovery. See Cal. Code Civ. Proc. §§ 1013(a), 2030.260(a). Thus, Defendant’s discovery responses were due sixteen (16) days after the informal discovery hold was no longer in place, August 9, 2017, making Defendant’s discovery responses due August 25, 2017. Defendant has not served any responses, much less within the time allowed by the Code of’ Civil Procedure. All objections to the interrogatories are therefore waived under section 2030.290(a). Plaintiff requests that the Court order Defendant’s responses to her Special Interrogatories, Set One be made without objection. | D. This Court Should Order Defendant and/or its Counsel to Pay Monetary Sanctions. Pursuant to Cal. Code Civ. Proc. § 2030.290(c), the court “shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition ofthe sanction unjust.” | Here, Defendant failed to serve any responses to Plaintiff's Special Interrogatories. Defendant has absolutely no substantial justification for failing and refusing to provide any responses whatsoever to Plaintiff's Special Interrogatories served on May 1, 2017. Plaintiffs counsel spent two hours preparing this Motion. Plaintiff's counsel further anticipates spending an additional two hours reviewing Defendant’s opposition, preparing a reply brief, and attending the hearing on this Motion. Based the time allotted to this Motion, Plaintiff respectfully requests that this Court grant her request for sanctions in the amount of $1,460.00 on this Motion. See Carlsen Decl., 99 13-15. 1 1" I -4- PLAINTIFF'S MOTION TO COMPEL RESPONSES TO SPECIAL INTERROGATORIES, SET ONE a N O 0 N O N W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. CONCLUSION Defendant has abused the discovery process by refusing to provide responses to discovery requests. For all the foregoing reasons, Plaintiff respectfully requests that its Motion to Compel Responses to Special Interrogatories, Set One, and for sanctions, be granted. Dated: September 22, 2017 AEGIS LAW FIRM,PC oC Ali S. Carlsen Attorneys for Plaintiff -5- PLAINTIFF’S MOTION TO COMPEL RESPONSES TO SPECIAL INTERROGATORIES, SET ONE © 0 1 S N Wn BA W N = N N D N D N N N N N N N m m e k e m e m e m e m e m e e e a c e N N O N i n B A R W O N = O O N N R W N = o o 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 September 22, 2017, I served the foregoing documententitled: e PLAINTIFF'S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES FROM DEFENDANT WSP GROUP CORPORATION, DBA WIENERSCHNITZEL #452 TO PLAINTIFE’S SPECIAL INTERROGATORIES, SET ONE AND REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS AND AUTHORITIES 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: S. David Kozich James H. Goldman LEGIS LAW, PC 2101 E. 4Street, Suite 120A Santa Ana, CA 92705 Attorneyfor Defendant: WSP Group Corporation dba WIENERSCHITZEL #452 x (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 ofAegis 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).) [1] (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 September 22, 2017,at Irvine, California. [EE Kathyan Alvarez CERTIFICATE OF SERVICE