Case Number: BC559883 Hearing Date: July 21, 2016 Dept: 49

BC559883 (companion case BC560531)
Kyson K. Lee v. Farmers Group, Inc., et al.

TO BE HEARD BY JUDGE HAMMOCK IN DEPT 93 AT 3:00 PM.

(1) Plaintiff Lee’s Motion to Compel Further Responses to Special Interrogatories (Set One), filed on 10/16/15 in BC559883
(2) Plaintiff Lor’s Motion to Compel Further Responses to Form Interrogatories (Set Two), filed on 8/20/15 in BC560531
(3) Plaintiff Lor’s Motion to Compel Further Responses to RFAs (Set One), filed on 8/20/15 in BC560531

TENTATIVE RULINGS:

Motion (1) was untimely filed and DENIED in its entirety. However, if this court finds that the motion was actually timely filed, Plaintiff has not adequately met and conferred prior to the filing of the motion. As such, this Court would order the parties to meet and confer and narrow down the issues that are currently outstanding. Once that has been done, the court will consider conducting an informal discovery conference to address the special interrogatories still at issue after the meet and confer.

Motion (2). The court has read and considered all pleadings in connection with this motion. No tentative is issued at this time. Counsel to appear and argue.

Motion (3), is not accompanied by a sufficient meet and confer showing, and it is entirely unclear what specific RFAs are still at issue. The parties must meet and confer and narrow down any remaining issues for the Court. Once that has been done, the court will consider conducting an informal discovery conference to address the RFAs still at issue after the meet and confer.

BACKGROUND

This is an action for various Labor Code violations and violations of the Fair Employment and Housing Act (“FEHA”). Plaintiff Kyson K. Lee is of the ethnic Hmong descent, and began employment with Defendants Farmers Group, Inc., Farmers Insurance Exchange, Fire Insurance Exchange, Truck Insurance Exchange, Mid-Century Insurance Company, and Farmers New World Life Insurance Company as a “Farmers Reserve Agent” in 2011. (Third Amended Complaint (“TAC”), ¶¶ 4, 26.) Plaintiff alleges that in early October 2013, Defendants “unilaterally kicked him out of the office, ended their relationship with him, told him he had to provide a resignation letter, failed to contract with him and blackballed him, converted his policies, commissions, clients, and actually charged him money for having worked for them, along with having been required to purchase Farmers Insurance products for his home and car, and a Farmers bond in order to work for them. He also was paid a salary in addition to commissions which was taxed as income, but which Farmers called a ‘loan’ and which they seek to collect from him along with interest.” (TAC, ¶ 4.) Plaintiff further claims Defendants began retaliating against Plaintiff in 2013 when Plaintiff took time off to care for a relative and informed Defendants that he was unable to work on the computer for long periods of time due to an eye problem. (TAC, ¶¶ 33-36.) Plaintiff also alleges Defendants harassed and took adverse actions against other Hmong employees during this same time period. (TAC, ¶¶ 28, 36.)

The operative Third Amended Complaint (“TAC”) asserts causes of action for:
1. Fraud
2. Wrongful termination in violation of public policy
3. Wrongful constructive termination in violation of public policy
4. Violation of FEHA (discrimination)
5. Violation of FEHA (failure to provide reasonable accommodation)
6. Violation of FEHA (failure to enter into the interactive process)
7. Violation of FEHA (failure to prevent discrimination)
8. Violation of FEHA (retaliation)
9. Harassment in violation of VEHA
10. Failure to pay wages (Labor Code § 200 et seq.)
11. Failure to indemnify (Labor Code § 2802)
12. Withholding of part of wage (violation of Labor Code § 221)
13. Failure to provide accurate itemized paystubs, keep accurate records, or permit copying and inspection of those records (Labor Code § 226)
14. Aiding and abetting
15. Breach of contract
16. Unfair business practices (B&P Code § 17200)

Plaintiff Ka K. Lor, who is also of the ethnic Hmong descent, has filed a similar action against Defendants (BC560531), claiming that she was wrongfully terminated on April 22, 2014 based on her ethnicity/national origin in violation of FEHA. Plaintiff Lor complains of numerous unlawful activities during the course of employment, including imprisonment in her own office, illegal wage garnishments, and underpayment of wages.

It appears the parties have had a contentious relationship throughout discovery, with all parties filing numerous motions to compel responses and further responses to discovery. As the arguments asserted in the discovery motions are substantively similar between the two cases, the Court will address the discovery motions filed in each case together, to the extent possible.

DISCUSSION

Motion (1): Plaintiff Lee’s Motion to Compel Further Responses to Special Interrogatories (Set One), filed on 10/16/15 in BC559883

Plaintiff Lee moves for an Order compelling Defendant Truck Insurance Exchange to provide further responses to Plaintiff’s special interrogatories (set one), on the grounds that Defendant’s responses are evasive, incomplete, and consist nearly entirely of boilerplate objections, as set forth in the Separate Statement. Plaintiff additionally argues Defendant’s “Preliminary Statement” is improper in that Defendant purportedly reserves the right to introduce unproduced evidence at trial, and contends Defendant has failed to provide the contact information for any of the witnesses it identified in its responses. Plaintiff moves for sanctions against Defendant and its attorney of record in the amount of $11,265.00, contending defense counsel has engaged in gamesmanship with its discovery responses and purported attempts to meet and confer.

As a preliminary, yet fundamental matter, the Court notes that Plaintiff’s motion appears to be fatally defective for one simple reason: Plaintiff’s motion was filed over two months after supplemental responses were received on 8/15/15 (Anfanger Decl., ¶ 6). As such it is untimely under CCP § 2030.300(c), which provides for a 45-day limitation to file a motion to compel further unless the parties agree in writing to extend the time. This requirement is jurisdictional.

In other words, unless there was an actual agreement between the parties which was, in fact, codified in writing, to extend the 45 day period, this court simply lacks the jurisdiction to hear this particular motion, other than to deny it.

Plaintiff’s counsel claims that defense counsel agreed to an extension and then “reneged” on that request in order to make Plaintiff’s motion untimely, but no written communications are provided which support Plaintiff’s counsel’s claim that defense counsel provided an extension to file a motion. (See Anfanger Decl., ¶¶ 7-13, Exs. 3-5 [Exhibit 4 is missing].)

In opposition as to this specific issue, Defendant argues the motion is untimely, and it includes emails that were omitted from Plaintiff’s motion, which demonstrates that the parties had a back-and-forth “argument” or discussion regarding the terms upon which to grant an extension to file a motion, with Plaintiff’s counsel ultimately not responding to defense counsel’s last proposal and the deadline passing on 9/28/15. (Huerta Decl., ¶¶ 5-14, Exs. D-L.). These correspondences appear to contradict Plaintiff’s position that defense counsel reneged on any extensions and/or failed to meet and confer in good faith, as it appears defense counsel was willing to extend the motion deadline on several occasions but Plaintiff’s counsel, fearful of gamesmanship by defense counsel, was unresponsive and not agreeable to allowing any meet and confer letters from defense counsel. (Id.)

Be that as it may, even if there had been an oral agreement by defense counsel to allow an extension of the 45-day rule, and subsequently the defense counsel “reneged” or withdrew that oral agreement, the simple fact remains that since such an agreement was never “in writing,” then the 45-day rule cannot be extended, as a matter of law. CCP § 2030.300(c).

Accordingly, this court has no choice but to summarily DENY Motion (1).

Motion (2): Plaintiff Lor’s Motion to Compel Further Responses to Form Interrogatories (Set Two), filed on 8/20/15 in BC560531

Plaintiff Lor moves for an Order compelling Defendant Farmers Group to provide further responses to Plaintiff’s form interrogatories (set two), on the grounds that Defendant failed to provide the contact information for the persons identified in form interrogatories 12.6(d), 16.2, and 17.1, Defendant has not correctly accounted for Plaintiff’s evidence concerning her “injuries” in form interrogatory 16.2, and Plaintiff is entitled to a further response to 17.1 if a further response to the RFAs is ordered. Plaintiff moves for sanctions against Defendant and its attorney of record in the amount of $4,210.00.

In opposition, Defendant argues Plaintiff did not adequately meet and confer prior to filing this motion. Defendant validly notes that Plaintiff’s meet and confer letter did not raise any issues with respect to form interrogatory 12.6(d). (Anfanger Decl., Ex. 1.) However, Defendant’s contentions otherwise as to this issue have no merit. Although Plaintiff’s counsel sent a late meet and confer letter on 8/18/15, only two days before the deadline and two days before this motion was filed, counsel also requested an extension of time to meet and confer in regards to the subject discovery, which defense counsel denied for no apparent reason. (Anfanger Decl., ¶¶ 4-13, Exs. 1-3.) Defense counsel contends he was preoccupied with other cases and could not respond to counsel’s 24-hour deadline (Siegel Decl., ¶¶ 7-8), but there is no reason why defense counsel refused to grant an extension to Plaintiff. (See also Siegel Decl., ¶ 12 [Plaintiff’s counsel requested “at least 4 voice mail messages” seeking to schedule a meet and confer conference, which defense counsel apparently ignored].) Defense counsel’s unwillingness to cooperate with Plaintiff’s counsel or to grant an extension violates LASC’s civility guidelines and is sanctionable conduct, as counsel’s conduct necessitated this motion.

In regards to the specific form interrogatories in dispute:

• Form interrogatory 12.6(d) (no meet and confer for this interrogatory) – Plaintiff contends that Defendant must disclose the actual addresses or contact information for the witnesses identified, and that Defendant disclosed a non-California address for Keith Gockel. If these witnesses are current employees, as Defendant contends, Defendant should clarify which witnesses are current employees and Plaintiff may arrange to contact them through defense counsel. Contact information for former employees should otherwise be disclosed. Defense counsel should also provide a correct California address for Gockel if it has one, as Plaintiff claims Defendant provided Gockel’s daughter’s address in Texas. This Court will hear oral argument as to these issues.

• Form interrogatory 16.2 – This interrogatory asks Defendant whether it believes Plaintiff was not injured in the “incident”, and asks Defendant to disclose the facts, witnesses, and documents supporting Defendant’s contention that Plaintiff was not injured. Defendant responded that it does not agree there was any discrimination against Plaintiff or injury to Plaintiff, and that Plaintiff has refused to provide information or evidence regarding her “injuries.” Plaintiff claims Defendant has incorrectly stated that Plaintiff has not provided evidence of her injuries, and that the response is evasive since it doesn’t identify any witnesses or documents. It appears this interrogatory is not really applicable to an employment discrimination case, but Plaintiff validly argues that Defendant’s response is evasive, in that a majority of Defendant’s response focuses on Plaintiff’s allegedly deficient discovery responses. This Court will hear oral argument as to these issues.

• Form interrogatory 17.1 – Defendant notes in Opposition that it has provided a further response to form interrogatory 17.1, which only discusses RFA 93. (Siegel Decl., ¶ 11, Ex. B.) Plaintiff contends a further response is warranted to the extent that the Court grants the motion to compel further responses to RFAs (discussed below). This Court will hear oral argument as to these issues.

Motion (3): Plaintiff Lor’s Motion to Compel Further Responses to RFAs (Set One), filed on 8/20/15 in BC560531

Plaintiff Lor moves for an Order compelling Defendant Farmers Group to provide further responses to Plaintiff’s requests for admission (“RFAs”) (set one), on the grounds that Defendant unreasonably objected to the terms “Farmers Insurance Agent” and “Farmers District Manager” as vague and ambiguous, and Defendant has made conclusory statements about its purportedly reasonable inquiry into RFAs in order to avoid responding to RFAs. Plaintiff moves for sanctions against Defendant and its attorney of record in the amount of $6,285.00.

Defendant makes the same meet and confer argument discussed above. Although defense counsel unreasonably refused to provide an extension, as mentioned earlier, the Court should note that the meet and confer letter sent by Plaintiff two days before the motion deadline hardly discusses the RFAs at all, other than one paragraph on page 3. (See Anfanger Decl., Ex. 1, p. 3.) This meet and confer letter is insufficient, and fails to discuss any specific issues with particular RFAs. Defendant also contends Plaintiff’s Separate Statement fails to set forth Defendant’s responses to RFAs 14, 15, 22, 23, 42, and 87 verbatim. Defendant argues it has adequately responded to the 140 RFAs. (Opposition, pp. 6-12.)

It is entirely unclear which specific RFAs are at issue, and the meet and confer letter from Plaintiff fails to establish that any of the specific RFAs or issues have been discussed. Rather than go through 140 RFAs, the Court orders counsel to meet and confer personally and to narrow down which RFAs and general issues are still at issue, particularly since it has been nearly a year since this motion was filed. The Court may continue the hearing and request that the parties submit a Joint Statement outlining which specific RFAs are still at issue and the general dispute between the parties.

Requests for Sanctions

Any and all requests for monetary sanctions will be heard at the conclusion of the hearing on each specific motion.

The critical issue will be whether the non-prevailing party has acted with “substantial justification” or not.