Motion_to_compel

Motion

Cal. Super. - 4th Dist.January 31, 2019

Electronically Filed by Superior Court of California, County of Orange, 06/01/2020 11:56:00 AM. 30-2019-01048056-CU-WT-NJ C - ROA #78 - DAVID H. YAMASAKI, Clerk of the Court By Brook Israel, Deputy Clerk. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 SHIRAZI LAW FIRM 1875 CENTURY PARK E., LOS ANGELES, CA Ld TEL: (310) 400-58 Fax: (888) 908-7359 Emanuel S. Shirazi (SBN 228909) Emanuel@shirazilawfirm.com Gloria Tumanyan (SBN 304028) Tumanyanlaw(@gmail.com SHIRAZI LAW FIRM 1875 Century Park East, Suite 1025 Los Angeles, California 90067 Tel: (310) 400-5891 Fax: (888) 908-7359 Attorneys for Plaintiff, TAMI CARNES SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE TAMI CARNES, an individual; CASE NO: 30-2019-01048056-CU-WT- NJC Plaintiff, [Assigned to The Hon. Craig Griffin, Vs. Department N-05] AMERICAN ADVISORS GROUP, a California corporation; and Does 1 through 10, inclusive, PLAINTIFF TAMI CARNES’ MOTION TO COMPEL DEFENDANT AAG TO PROVIDE FURTHER RESPONSES TO REQUESTS FOR PRODUCTION AND DOCUMENTS; DECLARATION OF EMANUEL SHIRAZI: EXHIBITS; REQUEST FOR SANCTIONS AGAINST DEFENDANT AMERICAN ADVISORS GROUP AND ITS ATTORNEYS OF RECORD Defendants. [Filed Concurrently with Declaration of Emanuel Shirazi and Exhibits, Separate Statement, Proposed Order] DATE: JHXXIXX028 09/14/2020 TIME: 2:00 p.m. DEPT.: N-05 Reservation #: 73308255 N r ’ N r ’ N r ’ N r ’ N r ’ N r N r N r N r N r N r N r N r N r N r N r N a N a N a N a N a N N N e ’ Trial: April 12, 2021 Action Filed: January 31, 2019 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD 09/14/2020 PLEASE TAKE NOTICE THAT on Juw XZ X02§ at 2:00 p.m. or as soon thereafter as thg matter may be heard, in Department NO5 of the above entitled court located at 1275 North -1- | Plaintiff’s Motion To Compel RFP2 Responses and Document Prodution BI 1 Berkeley Avenue, Fullerton, California, plaintiff, Tami Carnes (“plaintiff”) will move for an ordet 2 to compel defendant AMERICAN ADVISORS GROUP (“Defendant” or “AAG”) to respond td 3 Plaintiff’s Request for Production of Documents, Set Two, and to produce responsive documents 4 within ten days from the date the Court grants this Motion. 5 As will be discussed below, Plaintiff was forced to file this Motion to Compel because 6 Defendant failed and refused to provide substantive responses to Plaintiff's Request for 7 Production even though it waived all objections by responding 40 days late and failed to produce 8 all responsive documents, despite Plaintiff’s best efforts to meet and confer with Defendant. As 9 such, Plaintiff requests that the court orders Defendant to serve responses, without objections, to 10 Plaintiff’s Request for Production within ten days of the hearing on this Motion. 11 Additionally, Plaintiff seeks sanctions against defendant AMERICAN ADVISORS 12 GROUP and its counsel of record for forcing Plaintiff to seek court intervention in order to 13 obtain documents necessary to prosecute her complaint in this matter. 14 This motion is based on this Notice, the attached supporting memorandum, the 15 declaration of Emanuel Shirazi and exhibits, memorandum of points and authorities, all 16 pleadings, papers, and records in this action, and all other and further evidence presented at the 17 hearing on this Motion. 18 19 Dated: June 1, 2020 SHIRAZI LAW FIRM 20 21 _ : Cy = 22 By: Emanuel Shirazi, 23 Attorneys for Plaintiff, TAMI CARNES 24 25 26 27 SHIRAZI LAW FIRM 1875 CENTURY PARK E., LOS ANGELES, CA Ld TEL: (310) 400-58 Fax: (888) 908-7359 _ Di Plaintiff’s Motion To Compel RFP2 Responses and Document Prodution 1 MEMORANDUM OF POINTS & AUTHORITIES 2 I. INTRODUCTION 3 After this past year of Defendant AAG’s constant and bad faith delay tactics against 4 every discovery request propounded by Plaintiff, Defendant has left Plaintiff with no other 5 choice but to seek court intervention simply to get responses to her Request For Production of 6 Documents, Set Two. This request was made over four months ago on January 31, 2020 by 7 regular U.S mail. 8 Defendant did not respond to Plaintiff’s RFP 2 until 40 days after the due date and thus 9 waived its objections under the CCP. Yet, Defendant not only lists frivolous objections, but 10 refuses to provide the clearly discoverable documents and refused to meet and confer in good 11 faith. Thus, Plaintiff asks the Court to grant her motion to compel against Defendant and that 12 Defendant be ordered to respond without objections to the RFP requests and produce all 13 documents within 10 calendar days. 14 II. CASE BACKGROUND 15 This is a wrongful termination case where the temporarily disabled Plaintiff was suddenly 16 fired by mail with a letter stating the expiration of her 12 weeks of FMLA leave and 30 days of 17 personal leave mandated her termination. Plaintiff also alleges she was retaliated against for 18 making complaints of loan fraud by Defendant. Plaintiff also has claims for unpaid overtime. 19 III. THE COURT SHOULD GRANT PLAINTIFF'S MOTION TO COMPEL 20 DEFENDANT TO RESPOND TO PLAINTIFF'S REQUEST FOR PRODUCTION, 21 ORDER DEFENDANT TO SERVE RESPONSES WITHOUT OBJECTIONS, 22 AND ORDER DEFENDANT TO PRODUCE RESPONSIVE DOCUMENTS 23 Although Defendant waived its objections by missing the deadline to respond, it refuses 24 to provide clearly discoverable documents in discovery. 25 1 26 11 27 1 SHIRAZI LAW FIRM 1875 CENTURY PARK E., LOS ANGELES, CA Ld TEL: (310) 400-58 Fax: (888) 908-7359 “3. Plaintiff’s Motion To Compel RFP2 Responses and Document Prodution 1 A. Plaintiff Tried to Meet and Confer Extensively with Defendant, but Defendant 2 Acted in Bad Faith 3 1. Defendant AAG Waived Its Objections to RFP Set 2 by 4 Answering 40 Days Late 5 Plaintiff served her Request for Production of Documents and Things, Set Two 6 (“Request”) via U.S. mail on Defendant on January 31, 2020. Defendant’s responses to these 7 were due March 7, 2020. (See Declaration of Emanuel Shirazi 42; Exh 1.) 8 After not receiving responses for 10 days after they were due, Plaintiff’s counsel sent 9 Defendant a meet and confer letter on March 17, 2020 stating that Defendant missed the deadline 10 to respond and had waived its objections. (Shirazi Decl. 43; Exh 2.) 11 Under CCP §2031.30 Defendant waived its objections by responding 40 days late. 12 2 Plaintiff Continued to Meet and Confer With Defendant 13 Before It Responded to RFP 2 14 From March 17, 2020 to April 10, 2020, Plaintiff’s counsel had additional meet and 15 confer emails with defense counsel regarding their failure to respond to Plaintiffs RFP 2. 16 Defendant refused to abide by the CCP and stated it would make objections when it finally 17 would serve a response. (Shirazi Decl. 94; Exh 3.) 18 Finally, Defendant AAG provided its RFP 2 responses 40 DAYS LATE, on April 19 17,2020. These responses were in bad faith, rife with after-the-fact and meritless objections and 20 an outright refusal to provide relevant and discoverable documents. (Shirazi Decl. 45; Exh 4.) 21 3. Plaintiff Continued to Meet and Confer from April-May 2020 22 Regarding Defendants RFP 2 Response Refusing to Provide 23 Relevant Documents 24 On April 24, 2020, counsel for Plaintiff sent a meet and confer letter via e-mail in 25 an attempt to resolve this issue. This requested a response by May 1, 2020. (Shirazi Decl. 46; 26 Exh 5.) 27 SHIRAZI LAW FIRM 1875 CENTURY PARK E., LOS ANGELES, CA Ld TEL: (310) 400-58 Fax: (888) 908-7359 -4- Plaintiff’s Motion To Compel RFP2 Responses and Document Prodution 1 It was not until 3 weeks later at 9:00 p.m. on May 13, 2020 that Defendant’s counsel 2 finally responded to Plaintiff’s April 24, 2020 meet and confer letter. In that letter, Defendant 3 refused to provide the documents except for perhaps a log re RFP 90-91. (Shirazi Decl. 47; Exh 4 6.) 5 From April 24 to May 22, 2020 Plaintiff continued to meet and confer with defense 6 counsel via email. During this time, Defendant: 7 1) refused to meet and confer by telephone (it even cancelled and refused to 8 reschedule a meet and confer call); 9 2) refused to attend an Informal Discovery Conference; 10 3) refused to provide substantive responses; 11 4) refused to discuss tor give detail on the potential log re RFP’s 90-91; and 12 5) refused to extend Plaintiff’s Motion To Compel deadline. 13 This left Plaintiff with no other avenue but to file this Motion. (Shirazi Decl. 48; Exh. 7.) 14 Despite months of persistent and good faith efforts by Plaintiff to resolve this issue, 15 Defendant refuses to comply with the CCP or meet and confer in good faith. (Shirazi Decl. 8.) 16 B. Plaintiff’s Requests for Production are for Clearly Discoverable Documents 17 1. Plaintiff’s Request for Production of Documents No. 85-89 (sic 90) 18 regarding Similar Complaints Are Discoverable 19 These requests simply seek copies of publicly filed lawsuits alleging the same causes of 20 action as Plaintiff. Yet, Defendant still refuses in bad faith. 21 This information is directly relevant to Plaintiff’s claim that Defendant has a policy and 22 practice of terminating employees while on disability leave or who make complaints of loan 23 fraud. 24 Aside from these requests being relevant to Plaintiff’s case, they also seek to discovery 25 admissible “me-too” evidence, which Plaintiff is entitled to know about. The employer's 26 treatment of similarly situated employees may be relevant to show a 'discriminatory atmosphere’ 27 or corporate mindset against persons in a protected category. Hawkins v. Hennepin Technical SHIRAZI LAW FIRM 1875 CENTURY PARK E., LOS ANGELES, CA Ld TEL: (310) 400-58 Fax: (888) 908-7359 -5- Plaintiff’s Motion To Compel RFP2 Responses and Document Prodution 1 Ctr. (8th Cir. 1990) 900 F.2d 153, 155--employer's hostile treatment of other women admissible 2 to prove plaintiff's claims of gender discrimination and retaliatory discharge; Josephs v. Pacific 3 Bell (9th Cir. 2006) 443 F.3d 1050, 1064-1065--carlier grievance proceedings involving 4 similarly situated employees admissible in disability discrimination action; Johnson v. United 5 Cerebral Palsy/Spastic Children's Found. of L.A. & Ventura Counties (2009) 173 Cal. App.4th 6 740, 759, 93 Cal.Rptr.3d 198, 212--in pregnancy discrimination action, declarations by other 7 women employees that they had been fired due to their pregnancies were relevant to show 8 employer's reason for plaintiff's termination was pretextual; Pantoja v. Anton (2011) 198 9 Cal.App.4th 87, 109-110, 129 Cal.Rptr.3d 384, 402-403--in action alleging discrimination and 10 harassment, 'me too' evidence was relevant to prove gender bias and to rebut defense evidence 11 that employer had a policy of not tolerating harassment and a practice of not directing profanity 12 at individual employees. 13 Documents related to RFP 90 (misnumbered as 89) must also be produced as Plaintiff 14 alleges she was fired for making complaints of loan fraud. There is no valid objection to produce 15 these documents. They are clearly discoverable and Defendant waived its objections anyways. 16 2 Request for Production of Documents No. 90-91 For Plaintiff’s 17 After Horus Emails are Clearly Discoverable 18 Plaintiff has an overtime cause of action and is entitled to copies of Aer emails, not only 19 to show her hours worked, but because they directly relate to her and no privilege could possibly 20 apply. 21 Defendant offered to possibly look into providing a log instead of the underlying emails. 22 When Plaintiff tried to discuss details with Defendant, it then refused to meet and confer to 23 provide further detail or confirm any log would be provided. 24 There is no valid objection to produce these documents. They are clearly discoverable 25 and Defendant waived its objections anyways. 26 11 27 11 SHIRAZI LAW FIRM 1875 CENTURY PARK E., LOS ANGELES, CA Ld TEL: (310) 400-58 Fax: (888) 908-7359 -6- Plaintiff’s Motion To Compel RFP2 Responses and Document Prodution 1 IV. THE COURT SHOULD AWARD SANCTIONS TO PLAINTIFF AGAINST 2 DEFENDANT AMERICAN ADVISORS GROUP AND ITS ATTORNEYS OF 3 RECORD 4 California Code of Civil Procedure §2031.300 states in pertinent part: 5 (c) Except as provided in subdivision (d), the court shall impose a monetary 6 sanction under Chapter 7 (commencing with Section 2023.010) against any party, 7 person, or attorney who unsuccessfully makes or opposes a motion to compel a 8 response to a demand for inspection, copying, testing, or sampling, unless it finds 9 that the one subject to the sanction acted with substantial justification or that other 10 circumstances make the imposition of the sanction unjust. ... 11 As set forth in Declaration of Emanuel Shirazi, Plaintiff’s reasonable attorney fees in 12 connection with Defendants’ failure to provide responses and having to file this motion exceeds 13 $6,750.00 (Shirazi Decl., 99). Plaintiff requests that the court impose sanctions on defendant 14 AMERICAN ADVISORS GROUP and its attorneys of record in the amount of $6,750.00. 15 V. CONCLUSION 16 Based on the foregoing, Plaintiff requests that the court order Defendant to serve 17 amended responses and responsive documents, without objections, to Plaintiff’s Request for 18 Production within ten days of the hearing on this Motion. Additionally, Plaintiff requests that 19 the court impose sanctions on defendant AMERICAN ADVISORS GROUP and its attorneys of 20 record in the amount of $6,750.00 for forcing Plaintiff to bring this Motion. 21 22 DATED: June 1, 2020 SHIRAZI LAW FIRM 23 24 By: Cy == 25 Emanuel S. Shirazi Attorneys for Plaintiff, TAMI CARNES 26 27 SHIRAZI LAW FIRM 1875 CENTURY PARK E., LOS ANGELES, CA Ld TEL: (310) 400-58 Fax: (888) 908-7359 -7- Plaintiff’s Motion To Compel RFP2 Responses and Document Prodution 27 28 SHIRAZI LAw FIR 1875 CENTURY PARK|E., SUITE 1025 LOS ANGELES, CA 900) 7 TEL: (310) 400-58 4 bl1 FAX: (888) 908-7359 PROOF OF SERVICE CASE NO: 30-2019-01048056-CU-WT-NJC I declare that: I am employed in the County of Los Angeles, California. Iam over the age of eighteen years and not a party to the within cause; my business address is 1875 Century Park East Suite 1025, Los Angeles, CA 90067. On the date listed below I served the foregoing document described as: 1. PLAINTIFF TAMI CARNES’ MOTION TO COMPEL DEFENDANT AAG TO PROVIDE FURTHER RESPONSES TO REQUESTS FOR PRODUCTION AND DOCUMENTS; DECLARATION OF EMANUEL SHIRAZI: EXHIBITS; REQUEST FOR SANCTIONS AGAINST DEFENDANT AMERICAN ADVISORS GROUP AND ITS ATTORNEYS OF RECORD 2. PLAINTIFF TAMI CARNES’ SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL DEFENDANT AMERICAN ADVISORS GROUP TO RESPOND TO REQUEST FOR PRODUCTION OF DOCUMENTS SET TWO 3. [PROPOSED] ORDER GRANTING PLAINTIFF TAMI CARNES’ MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION AND DOCUMENTS by placing [ ] the original [X] true copies thereof enclosed in a sealed envelope addressed as follows: Melissa T. Daugherty Lewis Brisbois Bisgaard & Smith LLP 633 W. 5th Street, Suite 4000 Los Angeles, California 90071 Attorney for Defendants, American Advisors Group [X] (By Email) By transmitting a true and correct copy thereof via electronic transmission per the parties written agreement to: Melissa T. Daugherty Melissa.daugherty(@lewisbrisbois.com Ja’Mesha Morgan JaMesha.Morgan@lewisbrisbois.com Tammye Laster Tammye.Laster@lewisbrisbois.com [] (By Fax) By transmitting a true and correct copy thereof via facsimile transmission. o1- PROOF OF SERVICE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SHIRAZI LAw FIR [1 [] [ X] (By U.S. 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 U.S. postal service on that same day with postage thereon fully prepaid at Los Angeles, California, in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. (By Personal Service) [1] By sending to Oncall Legal to personally deliver such envelope to the addressee. [] By causing such envelope to be delivered by messenger to the office of the addressee. (By Next-Day Delivery Service) By causing such envelope to be delivered to the office of the addressee by Next Business Day delivery via FedEx or by other similar delivery service. [X] (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on June 1, 2020 at Los Angeles, California. Cd NE Emanuel Shirazi 1875 CENTURY PARK|E., SUITE 1025 LOS ANGELES, CA 900) TEL: (310) 400-58 4 bl1 Type or Print Name Signature = 7 FAX: (888) 908-7359 PROOF OF SERVICE