SECRETARY’S OPPOSITION TO DEFENDANTS’ MOTION TO CROSS-EXAMINE WORKERS
Case No. 16-CV-00363-CJC-KES Page 1
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JANET M. HEROLD
Regional Solicitor
MARC A. PILOTIN
Counsel for Wage and Hour Litigation
CHARLES SONG (CSBN 204497)
Senior Trial Attorney
JESSICA M. FLORES
JENNIFER L. STA.ANA
Trial Attorneys
UNITED STATES DEPARTMENT OF LABOR
350 S. Figueroa Street, Suite 370
Los Angeles, CA 90071-1202
Telephone: (213) 894-5365
Fax: (213) 894-2064
Song.Charles@dol.gov
Attorneys for Plaintiff R. Alexander Acosta
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
CENTRAL DIVISION
R. ALEXANDER ACOSTA,
Secretary of Labor,
United States Department of Labor,
Plaintiff,
v.
NUZON CORPORATION; a corporation;
MARGARET’S VILLA, INC., a corporation;
GERALDO ORTIZ, an individual; LILIBETH
ORTIZ, an individual; FIL-LYD
INVESTMENTS, LLC, a California Foreign
Limited Liability Company; JUANJO
INVESTMENTS, LLC, a California Foreign
Limited Liability Company,
Defendants.
Case No. 16-CV-00363-CJC-KES
SECRETARY’S OPPOSITION TO
DEFENDANTS’ MOTION TO
CROSS-EXAMINE WORKERS
WHO SUBMITTED
DECLARATIONS IN SUPPORT
OF PLAINTIFF’S OPPOSITION
TO MOTION FOR PARTIAL
SUMMARY JUDGMENT
Date: February 25, 2019
Time: 1:30 p.m.
Judge: Hon. Cormac J. Carney
Case 8:16-cv-00363-CJC-KES Document 212 Filed 02/11/19 Page 1 of 4 Page ID #:6429
SECRETARY’S OPPOSITION TO DEFENDANTS’ MOTION TO CROSS-EXAMINE WORKERS
Case No. 16-CV-00363-CJC-KES Page 2
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INTRODUCTION
Defendants’ request to have workers testify at the summary judgment hearing
should be denied as an improper vehicle to reopen discovery. Defendants could have, but
simply failed to, take fact discovery during the period the Court allotted for it. Now,
without citing any case law, Defendants essentially ask the Court to permit them to take
out-of-time depositions, including perhaps one that is Court-supervised, even though
they failed to pursue workers depositions during discovery.
The purpose of summary judgment is to identify the evidence available and
determine whether there are triable issues of fact. Defendants’ request is not only
procedurally improper, but will result in a mini-trial that does not save any resources
when the Court must still try the Secretary’s retaliation claim at trial. Defendants’
request should thus be denied.
ARGUMENT
A. Defendants’ Request for Worker Testimony Should be Denied Because
of Defendants’ Pattern of Dilatory Conduct, Including Their Failure to
Depose More Than One Employee in Three Years.
Defendants had the opportunity to take the discovery they seek now, but simply
failed to do so. Defendants improperly request to reopen discovery a fourth time,1 two
months before trial because of—once again—their own lack of diligence, without
1 The Court denied Defendants first request to extend discovery, stating that despite
having a year to do so, Defendants were “not . . . diligent in their own discovery
efforts—they have not propounded a single discovery request or noticed any
depositions.” (Dkt. 44.) The Court also did not afford Defendants ten months of
additional discovery after the Secretary filed the First Amended Complaint. (See Dkts.
65, 68, 69.) During the second period of discovery, the Court found that Defendants
“have not met their burden of demonstrating that their failure to fully respond to the
Secretary’s RFPs concerning Defendant’s expert was substantially justified” and “failed
to conduct a good faith investigation” into the existence of documents or “failed to
reveal material facts to the Court.” (Dkt. 85.) The Court ordered Defendants to pay the
Secretary attorneys’ fees for bringing the motion to compel discovery. (Id.)
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noticing the Secretary or filing a proper motion. See Beneficial Standard Life Ins. Co. v.
Madariaga, 851 F.2d 271, 277 (9th Cir. 1988) (informal requests to the court for more
discovery fell short of compliance). “A movant cannot complain if it fails to pursue
discovery diligently before summary judgment.” Id. (citations omitted).
This is not about having “undisclosed” witnesses testify. Given that Defendants
were the ones who perpetuated the retaliation, Defendants know all sixteen employee-
witnesses related to the Secretary’s retaliation claim.2 Indeed, Defendants had a specific
opportunity to depose these employees regarding the Secretary’s retaliation claims, but
simply failed to do so. (Song Decl. ¶ 2.) Defendants simply lacked diligence in taking
retaliation discovery. Defendants waited until the last ten business days of fact discovery
on the Secretary’s retaliation claims to subpoena, and unilaterally schedule, workers for
their deposition. (Song Decl. ¶ 3.) The Secretary immediately and repeatedly requested
to Defendants that the parties use the Court’s informal discovery procedures to resolve
the Secretary’s issues with Defendants’ unilaterally set depositions. But, Defendants
delayed and only pursued one of the three depositions they subpoenaed. (Song Decl. ¶
7.)
Further demonstrating Defendants’ lack of diligence is that Defendants never
followed up on the Secretary’s interrogatory responses and, accordingly, never objected
to the Secretary’s assertion of the informer’s privilege. (Song Decl. ¶ 2.) Defendants
could have challenged the Secretary’s assertion during discovery, but chose not to.
As in past instances where Defendants sought to extend discovery (e.g. Dkts. 44,
65, 68, 69), Defendants’ lack of diligence and their bad faith conduct cannot support
their request to cross-examine employee witnesses or reopen discovery to depose
disclosed witnesses. Like previous discovery periods, Defendants again wasted
everyone’s resources and, again, expect to be rewarded for their lack of diligence.
2 Indeed, because the parties have already exchanged pretrial disclosures for the wage
claims in this case, Defendants have had the Secretary’s potential witnesses since
December 2017. (Song Decl. ¶ 2)
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Having forgone depositions during discovery, Defendants will now have an opportunity
to cross-examine our witnesses, but it will have to be at trial.
B. Defendants Request for a Mini-Trial and to Reopen Discovery Should
be Denied.
Defendants are essentially requesting a court supervised deposition or to reopen
discovery to conduct the depositions they failed to take – both of which are untimely.
Summary judgment is granted when, “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. Pro. 56(a). Defendants provide no legal support for their end-around way of using a
summary judgment motion to conduct discovery about material facts that are in dispute.
Defendants are improperly attempting to make factual findings by examining
witnesses at a summary judgment hearing or in a deposition. As a matter of judicial
efficiency, an evidentiary hearing of the parties’ witnesses results in a mini-trial that
does not save any resources when the Court must still try the Secretary’s retaliation
claim at trial. (Dkt. 204 p. 12)
CONCLUSION
Defendants’ request to depose the Secretary’s declarants should be denied.
Defendants request constitutes an untimely request to reopen discovery, which should be
rejected given their lack of diligence in pursuing discovery. Insofar as they seek to cross-
examine the witnesses, such a request should be rejected as it will result in a mini-trial,
which is inappropriate in deciding summary judgment.
Respectfully submitted,
KATE S. O’SCANNLAIN
Solicitor of Labor
JANET M. HEROLD
Regional Solicitor
MARC A. PILOTIN
Counsel for Wage and Hour
Litigation
/s/ Charles Song
CHARLES C. SONG
Senior Trial Attorney
JESSICA M. FLORES
JENNIFER L. STA.ANA
Trial Attorneys
Attorneys for the Secretary,
U.S. Department of Labor
Case 8:16-cv-00363-CJC-KES Document 212 Filed 02/11/19 Page 4 of 4 Page ID #:6432
