Case Number: BC576979 Hearing Date: May 05, 2016 Dept: 73

5/5/16
Dept. 73
Rafael Ongkeko, Judge presiding

Jeffrey Thoreson v. MCL Fresh, Inc., et al. (BC576979)

Counsel for plaintiff: Carney Shegerian
Counsel for defendant: Mona Hanna, et al. (Michelman, etc.)

Defendant 4 Earth Farms, Inc.’s motion for terminating sanctions, etc.

TENTATIVE RULING

The motion for terminating or, in the alternative, evidentiary sanctions is GRANTED as to evidentiary sanctions only; no monetary sanctions are awarded. Plaintiff will be prohibited from introducing any evidence that should have been produced in response to the discovery requests at issue unless that evidence appears from the face of Plaintiff’s discovery responses to-date.

Monetary sanctions are denied as unjust in light of any reasonable attempt by moving party to avoid motion practice, as more fully set forth in plaintiff’s opposition.

DISCUSSION

SUMMARY OF CASE

This is an employment whistleblower case. Plaintiff Jeffrey Thoreson (“Plaintiff”) alleges that his salary and benefits were reduced and that he was ultimately fired after he complained about a number of regulatory violations occurring at Defendant, 4 Earth Farms, Inc., formerly MCL Fresh, Inc. (“Defendant”).

Plaintiff’s operative Second Amended Complaint (“SAC”), filed on October 15, 2015, alleges the following three causes of action against Defendant:

(1) Violation of Lab. Code, § 1102.5;
(2) Wrongful Termination in Violation of Public Policy (Lab. Code, § 1102.5); and
(3) Violation of the Private Attorney General Act (Lab. Code, § 2698 et seq.).

On April 24, 2015, Defendant served its first set of discovery on Plaintiff, which included Form Interrogatories (General and Employment), Requests for Production, and Requests for Admissions. On May 29, 2015, plaintiff served allegedly defective responses to the first round of discovery, which included boilerplate objections and incomplete compliance statements. Plaintiff also failed to produce any documents. Motions to compel were filed.
Eventually, the court issued a discovery order on Jan. 19, 2016.

In this discovery order, the Court ordered Defendant to provide supplemental responses to form interrogatories 2.11, 6.6, 8.8, 14.1 and 17.1; employment form interrogatories numbers 202.1, 202.2, 203.1, 205.1, 207.2, 210.3 and 210.5; and requests for production numbers 1-26, 29 and 32-33.

The order included specific instructions as to how Plaintiff was required to respond to the discovery requests. Plaintiff’s supplemental responses to the form and employment interrogatories were ordered to “be substantive, directly responsive to the specific interrogatory and include details as to each alleged incident and dates.” With respect to the form interrogatories, the Court ordered:

“a. All documents identified by plaintiff in his general form interrogatory responses must be produced.

b. All documents identified by plaintiff in his general form interrogatory responses must be identified by date and Bates number.

c. Because the RFAs concern different topics, the 17.1 responses should not include the same general narrative over and over. They must address the specific RFA at issue.”

Regarding the employment form interrogatories, the Court ordered:

“a. All documents identified by plaintiff in his employment form interrogatory responses must be produced.

b. All documents identified by plaintiff in his employment form interrogatory responses must be identified by date and Bates number.

c. 205.1: More specificity is required than ‘California Labor Code (Labor Code § 1-6400, 1102.5, 2698 et seq.); Various California Civil Code sections, the United States Constitution, the Fair Labor Standards Act (29 U.S.C. § 215, et seq.).’ Plaintiff failed to identify any specific health and safety codes, sections, regulations or laws that were violated that he allegedly complained about.

d. 207.2: It is not sufficient to refer to 17.1. Plaintiff must answer the specific interrogatory with specific details about each incident alleged.”

Further responses to the requests for production were to be provided in compliance with CCP 2031.230. The Court also awarded Defendant sanctions in the amount of $7,255.00.

Plaintiff served supplemental responses on February 4, 2016. Precluded from obtaining an earlier hearing date on an ex parte basis, Defendant filed the instant motion for terminating or, in the alternative, evidence sanctions on March 3, 2016, arguing that these supplemental responses fail to comply with the discovery order.

Plaintiff attempted to meet and confer with Defendant after this motion was filed. To that end, Plaintiff provided further supplemental responses on April 14, 20 and 22, 2016.

Motion for Terminating or Evidence Sanctions

The Court has reviewed the discovery responses that Plaintiff served following the Discovery Order and is satisfied that its initial responses, served February 4, 2016, fail to comply with that order. The Discovery Order directed Plaintiff to respond to the outstanding discovery requests directly and with details. Instead of complying with the Court’s order, Plaintiff served supplemental responses on February 4, 2016, that, on the whole, provide no more information than the original responses that the Court found inadequate. This was clearly improper.

For example, Form Employment Interrogatory number 207.2 asked Plaintiff if he ever complained to his employer about the unlawful conduct alleged in the pleadings and, if so, to provide details about the complaint including when it was made, to whom, and so on. Since this is a whistleblower action, the response to this interrogatory has clear relevance to the subject matter of the complaint. But Plaintiff’s initial responses (on May 29, 2015) did not contain any factual information whatsoever. Accordingly, the discovery order directed Plaintiff to respond to this interrogatory “directly” and “include details as to each alleged incident and dates.” Plaintiff was also instructed to produce responsive documents and identify them by Bates number. The supplemental responses served on February 4, 2016 also failed to reference any specific complaints or the dates they were made, and claims that they were directed only to David Lake. Not until April 20, 2016—after this motion was filed—did Plaintiff finally provide specific dates for his complaints and identify their substance. Curiously, these further supplemental responses list eight persons to whom complaints were made, rather than one.

Defendant should not have to waste pre-trial time to file a motion to enforce the discovery order to finally get adequate responses to its basic discovery requests. These requests were served in April, 2015, and Plaintiff failed to serve anything approaching satisfactory responses for the following year. Plaintiff’s initial responses, in particular, are so devoid of detail that they were practically worthless. Even Plaintiff’s supplemental responses following the discovery order were mostly inadequate. Only after the instant motion to enforce the discovery order did Plaintiff finally serve responses that appear to include all of the available information.

Plaintiff claims that he did not “willfully” violate the discovery order, but he failed to provide a complete response until Defendant made at least one informal (at the IDC) and two formal (the motion to compel and Discovery Order) attempts to obtain adequate responses. Plaintiff’s continued intransigence undermines any claim that he did not willfully violate the Court’s orders.

Moreover, some of Plaintiff’s discovery responses are still inadequate to fully respond to Defendant’s requests. Form Employment Interrogatory number 203.1 underscores the issue. That interrogatory asked Plaintiff to identify who harassed him, to describe the harassment, to identify the characteristic on which the harassment claim is based, the facts underlying the harassment and the name of each person with information regarding the harassment. Plaintiff responded with broadly worded allegations of harassment by David Lake and listed 52 persons with information about the harassment. The responses do not indicate which of these 52 persons were witnesses to any specific incident of harassment. Despite a long meet and confer process and the discovery order, Plaintiff never revised the substance of his initial response, nor did he provide enough specificity to make his response useful for any conceivable purpose in this litigation.

In light of the foregoing, the Court is satisfied that Plaintiff willfully failed to fully comply with the discovery order until this motion to enforce was filed. Terminating sanctions, however, are too severe. See Liberty Mut. Fire Ins. Co. v. LcL Adm’rs, Inc. (2008) 163 Cal.App.4th 1093, 1102 (court has broad discretion in selecting sanctions for failure to comply with discovery order). Plaintiff eventually complied with the bulk of the discovery requests and Defendant now has virtually all of the responses that it seeks, such as they are.

Evidentiary sanctions barring Plaintiff from introducing evidence that should have been produced in response to these discovery requests at a later date is a sufficient remedy for his abuse of the discovery process. Plaintiff appears to concede that this sanction is proper. See Opposition, pp. 12, lines 7-11 (“Plaintiff did everything he could to supplement all outstanding discovery requests fully, and, to the extent that the Court finds that any information was withheld, plaintiff requests that such information (if produced at a later date) be excluded from evidence during the summary judgment phase of this litigation.”).

To be clear, Plaintiff may not introduce evidence regarding any of the discovery requests which are the subject of the court’s discovery order that has not previously been provided to-date.

Sanctions

Defendant requests a total of $11,025.00. Even if the court were to find this amount reasonable, which the court does not, both in amount and in hours expended, the court declines to award any monetary sanctions in the interest of justice. The discovery act does not appear to require another meet and confer before this type of motion to enforce a court order is filed. However, while plaintiff’s counsel has engaged in a pattern of willful abuse in this case and has already been sanctioned, moving party should have given plaintiff earlier notice of his inadequate responses in a good faith attempt to avoid motion practice, rather than filing a motion on one or two days’ notice. While this motion might have been inevitable, moving party would have been on sounder footing for a monetary sanction award.

Unless waived, notice of ruling by moving party.