Lawzilla Additional Information:
Per the Los Angeles court records defendant is represented by attorney Michael Murphy who is being sanctioned by the court.

Case Number: EC066733 Hearing Date: April 13, 2018 Dept: B

# 11

hugo vargas,

Plaintiff,

v.

MIKE MCMILLAN, et al.,

Defendants.

Case No.: EC066733 (related to EC066729)

Hearing Date: April 13, 2018

[TENTATIVE] order RE:

motions to compel Further

BACKGROUND

Plaintiff Hugo Vargas commenced this wage-and-hour lawsuit against Defendants Michael Russell McMillan, M&M Custom Flooring, and M&M Custom Floors, Inc. on May 12, 2017. The Second Amended Complaint (“SAC”), filed February 7, 2018, alleges causes of action for: (1) failure to provide meal periods; (2) failure to provide rest periods; (3) failure to provide overtime wages; (4) failure to pay wages upon termination; (5) failure to provide accurate itemized wage statements; (6) unfair business practices; (7) hostile work environment – harassment; (8) NIED; and (9) IIED.

Defendant Mike McMillan (“McMillan”) filed two motions to compel further responses against Plaintiff for: (1) Supplemental Request for Production of Documents, set one (“Supplemental RPD”); and (2) Supplemental Interrogatories, set one, in connection with his Form Interrogatories, set one (“Supplemental FROG”). Plaintiff opposes.

motion to compel further responses to SUPPLEMENTAL rpd

A. Timeliness

Motions to compel further responses must be brought within 45 days of receiving the verified or supplemental verified responses, or as otherwise agreed upon between the parties in writing. (CCP §2031.310(c); see CCP §1013 [additional 5 days by mail].)

On August 24, 2017, McMillan propounded on Plaintiff the RPD, set one. (Murphy Decl., ¶4, Ex. 2.) On November 13, 2017, Plaintiff responded to McMillan’s FROG requests, stating that he had filed a claim with a governmental agency. (Id., ¶7, Ex. 5.) That same day, Plaintiff responded to McMillan’s RPD, but did not produce the DFEH complaint or right-to-sue letters. (Id., ¶8, Ex. 6.) Thereafter, on December 11, 2017, McMillan propounded on Plaintiff the Supplemental RPD, requesting Plaintiff to produce supplemental documents to all previous document requests. (Id., ¶13, Ex. 11.) This motion was then filed on February 13, 2018.

While this motion is timely to compel a further responses from Plaintiff as to the Supplemental RPD, the Court notes that this motion is not timely as to the RPD, set one, propounded on August 24, 2017.

B. Discussion

McMillan moves to compel further response to the Supplemental RPD, which seeks any later acquired or discovered documents to supplement any prior requests for production. At issue in this motion is RPD no. 2, which seeks all documents that support Plaintiff’s responses to the Employment FROG, set one. Superficially, McMillan seeks the production of Plaintiff’s DFEH right-to-sue letters and the DFEH complaint.

In his initial response to RPD no. 2, Plaintiff raised several objections, but stated he would respond by producing documents with Bates Stamp VARAS 000001 to VARGAS 000027.

In his response to the Supplemental RPD, Plaintiff stated there was no changes to the previously provided responses.

McMillian argues that the DFEH letters and complaint are highly relevant to the subject matter of the lawsuit and are reasonable calculated to lead to the discovery of admissible evidence. McMillan’s counsel establishes good cause for these documents because he believes the FEHA claim is barred by the statute of limitations and these documents would tend to prove or disprove this fact. (Murphy Decl., ¶3.) McMillan argues that Plaintiff answered “yes” on his Employment FROG No. 208.1, which asked if Plaintiff filed any complaints or claims with any governmental agency. McMillan argues that despite this answer, Plaintiff has not produced any letters or complaint to DFEH regarding his FEHA claims.

However, McMillan should have filed a motion to compel further to RPD, set one, no. 2. The 45-day limitation to bring a motion to compel further cannot be circumvented by propounding the same discovery again. (See Prof. Career Colleges etc. v. Superior Court (1989) 207 Cal.App.3d 490, 492.) Thus, if McMillan was unsatisfied with Plaintiff’s response to the RPD, set one, he should have filed a motion to compel further as to the RPD, set one.

Because McMillan failed to file a motion to compel further as to the RPD, set one’s responses and objections, at issue is Plaintiff’s response to the Supplemental RPD only.

Here, Plaintiff’s response to the Supplemental RPD is sufficient since he states that he has nothing else to produce that is responsive to the Supplemental RPD. In the opposition, he states that he is not in receipt of any later acquired or discovered documents. Thus, Plaintiff’s response is proper as Plaintiff has stated he has no further documents to produce following the RPD, set one.

In reply, McMillan argues that he served the Supplemental RPD on Plaintiff after Plaintiff had answered in his Employment FROG, set one, that he had received a DFEH right-to-sue letter. However, this does not necessarily mean that the DFEH documents were later acquired or discovered documents.

Accordingly, the motion to compel further responses to the Supplemental RPD is denied.

motion to compel further responses to SUPPLEMENTAL frog

McMillan moves to compel further responses to the Supplemental FROG in order to seek further, full, and complete responses to FROG, set one, nos. 2.6, 2.11, 6.5, 8.4, 8.5, 8.7, 8.8, 14.1, 17.1, and 50.1-50.5.

This motion runs into the same problems as the motion to compel further responses to the Supplemental RPD.

A. Timeliness

Motions to compel further responses must be brought within 45 days of receiving the verified or supplemental verified responses, or as otherwise agreed upon between the parties in writing. (CCP §2030.300(c); see CCP §1013 [additional 5 days by mail].)

On August 24, 2017, McMillan propounded on Plaintiff the FROG, set one. (Murphy Decl., ¶12, Ex. 10.) On November 13, 2017, Plaintiff responded to McMillan’s FROG requests. (Id., ¶14, Ex. 12.) Thereafter, on December 11, 2017, McMillan propounded on Plaintiff the Supplemental FROG, requesting Plaintiff to produce supplemental interrogatory answers with any later acquired information bearing on all answers previously made by Plaintiff in response to any interrogatory previously propounded. (Id., ¶20, Ex. 18.) On January 24, 2018, Plaintiff served responses to the Supplemental FROG, stating there was no further information as to any of the previously propounded interrogatories. (Id., ¶23, Ex. 21.) This motion was then filed on February 13, 2018.

While this motion is timely to compel a further responses from Plaintiff as to the Supplemental FROG, the Court notes that this motion is not timely as to the FROG, set one, propounded on August 24, 2017.

B. Discussion

For the same reasons as above with regard to the Supplemental RPD, the motion to compel further responses to the Supplemental FROG is denied.

By way of this motion, McMillan seeks to compel further responses to Plaintiff’s FROG, set one, responses. However, the time for this passed. McMillan cannot, by propounding the Supplemental FROG requests, circumvent the 45-day limitation to file a motion to compel further responses. (See Prof. Career Colleges etc. v. Superior Court (1989) 207 Cal.App.3d 490, 492.)

Accordingly, because McMillan failed to file a motion to compel further as to the FROG, set one’s responses and objections, the remaining issue is Plaintiff’s response to the Supplemental FROG only.

Here, Plaintiff’s response to the Supplemental FROG is sufficient since he states that he stated he had not further changes to this previously provided responses. In the opposition, he states that he does not have any later acquired or discovered information in order to supplement his responses from the time he provided his initial responses. Thus, Plaintiff’s response is proper as Plaintiff has stated he has not further information or responses following the FROG, set one.

CONCLUSION AND ORDER

The motions to compel further responses to the Supplemental RPD and Supplemental FROG are denied.

McMillan’s request for sanctions is denied.

Plaintiff’s request for sanctions is granted. McMillon and his counsel of record, jointly and severally, are ordered to pay monetary sanctions in the amount of $1,960.00 to Plaintiff, by and through counsel, within twenty (20) days of notice of this order.

McMillan is ordered to provide notice of this ruling.