Case Name: Santos, et al. v. El Guapos Tacos LLC, et al.
Case No.: 2015-1-CV-285065

Motions to Compel Further Responses to Request for Production of Documents and Request for Admissions and Request for Monetary Sanctions by Defendant El Guapos Tacos, LLC

Factual and Procedural Background

This is a wage loss action initiated by Lourdes Santos and Carolina Chavez-Cortez (collectively “Plaintiffs”) against defendants Anthony Richard Beers, James Roberts Beers, John Henry Conway, Esq., David Richard Powell, Jorge Sanchez (“Sanchez”), Sam Ramirez d.b.a. Chacho’s Tacos, and El Guapos Tacos, LLC (“EGT”).

According to the allegations of the third amended complaint, Plaintiffs were employed by EGT as cooks. During their employment, Plaintiffs were not provided required meal and rest periods, earning statements, or wages.

Plaintiffs allege seven causes of action for: (1) violations of the Private Attorneys General Act; (2) failure to provide lawful meal breaks; (3) failure to authorize and permit rest breaks; (4) failure to provide and maintain earnings statement information; (5) failure to pay all wages due timely; (6) unfair competition; and (7) failure to pay wages.

On November 16, 2017, Plaintiffs dismissed defendant Sanchez from this action.

On January 30, 2018, EGT separately served Plaintiffs with request for production of documents (set two) (“RPD”) and request for admissions (set two) (“RFA”). (Declaration of Justin D. Brown at ¶ 2, Exhibits A and B ISO Motions to Compel.) The discovery requested information and documents concerning defendant Sanchez. (Ibid.)

On March 1, 2018, Plaintiffs served discovery responses interposing objections with factual responses. (Declaration of Justin D. Brown at ¶ 3, Exhibits C and D ISO Motions to Compel.) Plaintiffs did not serve verifications with their responses. (Ibid.)

On March 20, 2018, counsel for EGT prepared a meet and confer letter concerning some of Plaintiffs’ RPD and RFA responses. (Declaration of Justin D. Brown at ¶ 4, Exhibits E ISO Motions to Compel.) The letter addressed Plaintiffs’ responses to RPD Nos. 20, 25, 26, 27, 28, 29, 30, 31, 32, and 33 and RFA Nos. 11, 12, 13, 14, 15, 18, 20, 21, 22, and 23. In doing so, EGT argued the objections raised were meritless and requested supplemental responses and documents along with a privilege log no later than March 30, 2018. (Ibid.)

On March 29, 2018, Plaintiffs’ attorney responded by letter stating that all non-privileged responsive documents had been produced. (Declaration of Justin D. Brown at ¶ 5, Exhibits F ISO Motions to Compel.) Counsel also produced a privilege log with the letter and produced one additional document. (Ibid.) Despite this response, EGT contends there are outstanding documents that need to be produced. In addition, Plaintiffs’ letter did not address any of the objections raised to the RFA. Since the parties were not able to informally resolve the matter, EGT now seeks intervention from the Court.

Currently before the Court are EGT’s motions to compel further responses to RPD and RFA because the objections raised are without merit. (See Code Civ. Proc., §§ 2031.310, subd. (a), 2033.290, subd. (a).) EGT also seeks an award of monetary sanctions in conjunction with the motions. Plaintiffs filed written opposition. EGT filed reply papers. No trial date has been set.

Motions to Compel Further Responses to RPD

EGT moves to compel a further response to RPD Nos. 20, 25, 26, 27, 28, 29, 30, 31, 32, and 33 because the objections lack merit.

Oversized Memorandum

As a procedural matter, EGT argues that Plaintiffs filed an oversized memorandum in violation of California Rules of Court, rule 3.1113(d). (See Reply at p. 1:14-23.) This rule provides that a responding memorandum may not exceed 15 pages. A memorandum that exceeds the page limits of these rules must be filed and considered in the same manner as a late-filed paper. (See Cal. Rules of Court, rule 3.1113(g).)

Here, Plaintiffs filed a single opposition brief in excess of 15 pages. The court file does not reflect that Plaintiffs made an application to the Court to file a longer memorandum in compliance with California Rules of Court, rule 3.1113(e). At best, there appears to be only minimal prejudice as the substance of Plaintiffs’ opposition is approximately 17 pages in length. Nor does EGT articulate how it was prejudiced by the lengthy opposition in its reply papers. The Court therefore will overlook this procedural violation and address the merits of the opposition. Plaintiffs are directed to comply with all applicable statutes and rules with respect to future filings.

Meet and Confer

In opposition, Plaintiffs argue the motions should be denied as EGT failed to adequately meet and confer before filing the motions.

A motion to compel further responses must be accompanied by a meet and confer declaration under Code of Civil Procedure section 2016.040. (Code Civ. Proc., §§ 2030.310, subd. (b), 2033.290, subd. (b).) Section 2016.040 requires that a moving party make a “reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” A determination of whether an attempt at informal resolution was adequate depends upon the particular circumstances and involves the exercise of discretion. (Obregon v. Super. Ct. (1998) 67 Cal.App.4th 424, 431; see Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1016 [meet and confer rule is designed to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order].)

Here, EGT sent a 28-page meet and confer letter to Plaintiffs addressing the objections to discovery and requesting supplemental responses. Plaintiffs thereafter responded with a privilege log and letter addressing only objections based on the common interest doctrine and attorney work product doctrine. Plaintiffs did not attempt to justify their other objections or even address the RFA. Thus, there is some question as to whether Plaintiffs were in fact acting in good faith during the meet and confer process. Moreover, Plaintiffs fail to cite any legal authority for the proposition that a motion to compel further responses should be denied for failing to meet and confer on the date set for the motion. There is no doubt that both sides could have benefitted from additional meet and confer efforts. And while the meet and confer process was not ideal in this case, the Court is nevertheless satisfied that EGT made efforts to informally resolve the matter before filing the motions.

Legal Standard

A responding party to an inspection demand must respond separately to each item in the demand by stating one of the following: (1) an agreement to comply; (2) a representation of inability to comply, or (3) objections. (Code Civ. Proc., § 2031.210.) If a party demanding a response to an inspection demand deems: (1) a statement of compliance with the demand is incomplete; (2) a representation of inability to comply is inadequate, incomplete, or evasive; or (3) an objection in the response is without merit or too general, that party may move for an order compelling further response to the demand. (Code Civ. Proc., § 2031.310-320; Weil & Brown, California Practice Guide: Civil Procedure Before Trial (Rutter Group 2017) at § 8:1495.)

Good Cause Requirement

A motion to compel further responses to RPD must “set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) The moving party establishes good cause by showing: (1) relevance to the subject matter of the case; and (2) specific facts justifying discovery. (Kirkland v. Super. Ct. (2002) 95 Cal.App.4th 92, 98 (Kirkland) [the party who seeks to compel production has met his burden of showing good cause simply by a fact-specific showing of relevance].) Discovery is allowed for any matters that are not privileged and relevant to the subject matter, and a matter is relevant if it appears reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.) Moreover, for discovery purposes, information is “relevant to the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof. (Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546 (Gonzalez).)

Here, the subject RPD seek production of documents regarding Plaintiffs’ communications with former defendant Sanchez (RPD Nos. 20, 25, 26, 27, 28, 29, 30, 31, 32, and 33). “Communications” are defined as including but not limited to, conversations in person, telephone conversations, telegrams, letters, email, blog entries, statements and press releases. (Declaration of Justin D. Brown at Exhibit A ISO Motions to Compel.) This includes communications made with respect to allegations in the operative pleading (RPD Nos. 27-28) as well as those made in connection with the depositions of other defendants (RPD Nos. 29-32). With these requests, EGT seeks information related to Plaintiffs’ dismissal of Sanchez from this case which occurred on November 16, 2017. EGT thus argues there is good cause for production as the requested information is relevant on the issues of bias and credibility with respect to Sanchez and Plaintiffs. Courts have found that evidence establishing a witness’s credibility is relevant and discoverable. (See Gonzalez, supra, 33 Cal.App.4th at p. 1546 [information regarding credibility, including bias and other grounds for impeachment must be disclosed]; see also Ragge v. MCA/Universal Studios (C.D. Cal. 1995) 165 F.R.D. 601, 604 [ordering production of personnel files in part where information contained within could be relevant to witness’s credibility].) Having established good cause, the burden shifts to Plaintiffs to justify any objections to document disclosure. (See Kirkland, supra, 95 Cal.App.4th at p. 98.)

Validity of Objections

Plaintiffs object to these RPD on the following grounds: (1) request is not relevant or calculated to lead to the discovery of admissible evidence; (2) request is vague and ambiguous; (3) request is overbroad; (4) request is protected by the attorney-client privilege, attorney work product doctrine, and common interest doctrine.

Overbroad and Attorney-Client Privilege

To the extent that Plaintiffs object on grounds that the RPD are overbroad and violate the attorney-client privilege, the Court notes Plaintiffs did not address these objections during the parties’ meet and confer efforts. Nor do Plaintiffs justify these objections in their opposition. The objections are therefore overruled. (See Coy v. Super. Ct. (1962) 58 Cal.2d 210, 220-221 [if a timely motion to compel has been filed, the burden is on responding party to justify any objection].)

Relevance

In opposition, Plaintiffs argue that EGT fails to demonstrate how the requested documents are relevant to this case. This is not the standard however as discovery is also permitted when reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.) Additionally, Plaintiffs did not address this objection during the parties’ meet and confer efforts. In any case, EGT has established good cause for production and therefore made a proper showing for relevance. Accordingly, the objection is overruled.

Vague and Ambiguous

Plaintiffs also argue that certain terms within each RPD (for example, “related to”) are vague and ambiguous thus making it difficult for them to respond. Again, Plaintiffs did not address any such objection during the parties’ meet and confer efforts. In addition, a vagueness and ambiguity objection will only be sustained if the request is unintelligible. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783.) This is not the case as the Court finds the RPD to be intelligible. Furthermore, such an objection appears disingenuous as Plaintiffs admitted during meet and confer that they produced all non-privileged information. (Declaration of Justin D. Brown at ¶ 5, Exhibits F ISO Motions to Compel.) This would suggest that Plaintiffs were able to sufficiently understand the requests and therefore respond to them. Thus, the vague and ambiguous objections are overruled.

Attorney Work Product Doctrine

To the extent that EGT is seeking communications regarding witness interviews and declarations, Plaintiffs argue that such documents are protected under the attorney-work product doctrine.

“The attorney work product doctrine absolutely protects from discovery writings that contain an attorney’s impressions, conclusions, opinions, or legal research or theories.” (League of California Cities v. Super. Ct. (2015) 241 Cal.App.4th 976, 993 [internal quotation marks omitted].) “The purpose of the attorney work product doctrine is to preserve the rights of attorneys in the preparation of their cases and to prevent attorneys from taking advantage of the industry and creativity of opposing counsel.” (Ibid.) “The person claiming protection under the attorney work product doctrine bears the burden of proving the preliminary facts to show the doctrine applies.” (Ibid.)

Here, the privilege log served by Plaintiffs during meet and confer refers to various witness interviews and declarations being withheld on the basis of the attorney work product doctrine. (Declaration of Justin D. Brown at Exhibit F ISO Motions to Compel.) In support of the privilege, Plaintiffs rely on Coito v. Super. Ct. (2012) 54 Cal.4th 480 (Coito). (See OPP at p. 14:12-13.) This case however provides that if the party resisting discovery alleges that a witness statement is absolutely protected because it reflects an attorney’s impressions, conclusions, or opinions, that party must make a preliminary or foundational showing in support of its claim. (Coito, supra, at pp. 499-500.) Plaintiffs have not made any preliminary or foundational showing that the alleged witness interviews and declarations fall within the scope of the attorney work product doctrine. Without this showing, there is no basis to withhold producing such documents in response to a discovery request. Consequently, the objection on this ground is overruled.

Common Interest Doctrine

Finally, Plaintiffs object on the ground that the documents are protected under the common interest doctrine.

The common interest doctrine is not in fact a recognized statutory privilege in California; instead, it is “a nonwaiver doctrine, analyzed under standard waiver principles applicable to the attorney-client privilege and the work product doctrine.” (Meza v. H. Muehlstein & Co. (2009) 176 Cal.App.4th 969, 981.) “Under the common interest doctrine, an attorney can disclose work product to an attorney representing a separate client without waiving the attorney work product privilege if (1) the disclosure relates to a common interest of the attorneys’ respective clients; (2) the disclosing attorney has a reasonable expectation that the other attorney will preserve confidentiality; and (3) the disclosure is reasonably necessary for the accomplishment of the purpose for which the disclosing attorney was consulted.” (Ibid.) The party seeking to invoke the doctrine must first establish that the communicated information would otherwise be protected from disclosure by a claim of privilege. (See Oxy Resources California, LLC v. Super. Ct. (2004) 115 Cal.App.4th 874, 890 (Oxy Resources).)

In opposition, Plaintiffs contend the common interest doctrine is applicable as the requested documents (witness interviews and declarations identified in the privilege log) are being withheld on the basis of the attorney work product doctrine. However, as stated above, Plaintiffs did not establish the proper foundational showing for the work product doctrine to apply. Nor do Plaintiffs attempt to support the common interest doctrine with the attorney-client privilege. Without a claim of privilege, the common interest doctrine is inapplicable. (See Oxy Resources, supra, 115 Cal.App.4th at p. 890.) Therefore, the objection on this ground is overruled.

Disposition

The motions to compel a further response to RPD Nos. 20, 25, 26, 27, 28, 29, 30, 31, 32, and 33 are GRANTED. Plaintiffs shall serve EGT with verified code-compliant further responses, without objections, and produce all responsive documents within 20 calendar days of EGT’s service and filing of notice of entry of this Order signed by the Court.

Motions to Compel Further Responses to RFA

EGT moves to compel a further response to RFA Nos. 11, 12, 13, 14, 15, 18, 20, 21, 22, and 23 because the objections raised lack merit.

Legal Standard

On receipt of a response to requests for admissions, the party requesting admissions may move for an order compelling a further response if that party deems that either or both of the following apply: (1) An answer to a particular request is evasive or incomplete; (2) An objection to a particular request is without merit or too general. (Code Civ. Proc., § 2033.290, subd. (a).)

RFA Nos. 11, 12, 13, 14, 15, 18, 20, 21, 22, and 23

The subject RFA ask Plaintiffs to admit or deny certain statements related to former defendant Sanchez. This includes statements on whether Plaintiffs received communications from Sanchez related to other defendants (RFA Nos. 11, 12, 13, 14, 15). There are also RFA addressing the employer-employee relationship between Plaintiffs and Sanchez at the restaurant (RFA Nos. 18, 20, 21, 22, 23.) Plaintiffs object to each RFA on the ground that certain terms (“received communication” and “Chacho’s Tacos”) are vague, ambiguous, and unintelligible and thus impossible to respond to without speculation.

As stated above, Plaintiffs did not even address the RFA in their response to EGT’s meet and confer letter. Additionally, Plaintiffs did not object to the RFA on the ground that the requests are not relevant to issues that need to be proved at trial, and, thus, such an objection raised for the first time in opposition to this motion is waived. (See Scottsdale Ins. Co. v. Super. Ct. (1997) 59 Cal.App.4th 263, 273 [waiver occurs where the responding party fails to timely raise an objection in its initial response].) Finally, the subject RFA do not appear to be unreasonably vague or ambiguous and thus Plaintiffs should be compelled to provide a code compliant further response.

Disposition

The motions to compel a further response to RFA Nos. 11, 12, 13, 14, 15, 18, 20, 21, 22, and 23 are GRANTED. Plaintiffs shall serve EGT with verified code-compliant further responses, without objections, within 20 calendar days of EGT’s service and filing of notice of entry of this Order signed by the Court.

Request for Monetary Sanctions

Counsel for EGT is requesting an award of monetary sanctions in conjunction with the motions to compel. The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further responses to inspection demands or request for admissions, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., §§ 2031.310, subd. (h), 2033.290, subd. (d).)

EGT makes a code compliant request for monetary sanctions against Plaintiffs and their counsel. In addition, Plaintiffs were not substantially justified in opposing the motions. Nor are there are circumstances which make imposing a sanction to be unjust. Between the two motions, EGT is requesting a total of $7,580.50 in monetary sanctions. The total amount is based on the work of several counsel from EGT given the amount of time spent preparing the motions and the reply papers. The Court however finds the requested amount to be excessive and will instead award $3,000 in monetary sanctions.

Therefore, the request for monetary sanctions is GRANTED IN PART. Plaintiffs’ counsel shall pay $3,000 in monetary sanctions to EGT within 20 calendar days of EGT’s service and filing of notice of entry of this Order signed by the Court.

The Court will prepare the Order.