Superior Court of California

County of Los Angeles

Department 26

MICHAEL SPEZIALI,

Plaintiff,

v.

THE VIPER ROOM, L.P., et al.,

Defendants.

Case No.: BC692932

Hearing Date: November 13, 2019

[TENTATIVE] order RE:

PLAINTIFF’S motion to compel FURTHER RESPONSES TO SPECIAL INTERROGATORIES; REQUEST FOR MONETARY SANCTIONS

BACKGROUND

On July 17, 2019, Plaintiff Michael Speziali (“Plaintiff”) filed the instant motion to compel further responses to special interrogatories from defendant Viper Room Sunset, LLC (“Defendant”). Plaintiff also requests sanctions against Defendant and Defendant’s counsel in the amount of $4,882.00.

Plaintiff moves for an order compelling Defendant’s further responses to Special Interrogatory Nos. 2, 4-7, 11, 13-15, 23, 27, and 34-35 on the grounds that despite counsel’s best efforts to meet and confer on these discovery issues, Defendant’s responses are incomplete and evasive. Further, Plaintiff argues that Defendant waived objections to all of Plaintiff’s written discovery, including to the specially prepared interrogatories, when Defendant failed to serve timely responses. Defendant filed an opposition on October 30, 2019. Plaintiff filed a reply on November 5, 2019.

PROCEDURAL ISSUE

A moving party generally may not rely on additional evidence or arguments that are not responsive to the opposition filed with its reply papers. (See San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316.) Thus, evidence and exhibits presented in support of a reply are not generally allowed. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 249.) As such, the Court will not consider Plaintiff’s supplemental declaration and attachments filed in reply.

EVIDENTIARY OBJECTIONS

Plaintiff’s objections to Paragraph 2, lines 1:8-10, of the Stelmach Declaration are OVERRULED.

LEGAL STANDARD

Motions to compel further responses must be served within 45 days after service of the responses in question (extended if served by mail, overnight delivery, or fax). (Code Civ. Proc. §§ 2030.300, 1013.) Otherwise, the demanding party waives the right to compel any further responses. (Id., §§ 2030.300, subd. (c), 2016.050; see Sperber v. Robinson (1994) 26 Cal.App.4th 736, 745.) The 45-day limit is mandatory and jurisdictional. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) However, the parties can also agree in writing on a specific later date by which to file the motion to compel further. (Code Civ. Proc. § 2030.300, subd. (c).)

Code of Civil Procedure section 2030.300 provides, in pertinent part, as follows:

(a) On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply:

(1) An answer to a particular interrogatory is evasive or incomplete.

(2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate.

(3) An objection to an interrogatory is without merit or too general.

(b) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040.

Additionally, a party moving to compel further responses must file and serve with the motion a separate statement that includes the information required by California Rules of Court, rule 3.1345. (See Cal. Rules of Court, rule 3.1345(a)(2).)

Finally, Code of Civil Procedure section 2030.300(d) provides that “[t]he court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, 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.”

DISCUSSION

On November 26, 2018, Plaintiff served his first set of written discovery requests on Defendant, which included Special Interrogatories. (Madison Decl., ¶ 3.) Plaintiff afforded Defendant two extensions to provide responses. (Id., ¶¶ 6-7.) After two extensions, Defendant responded to Plaintiff’s discovery on February 8, 2019, which Plaintiff contends consisted of boilerplate objections, and incomplete, evasive, and unverified responses. (Id., ¶ 8.) Plaintiff did not actually receive the responses for several days after February 8, 2019. (Id.)

On April 24, 2019, the parties attended an informal discovery conference (“IDC”) where Defendant’s counsel stipulated to provide supplemental responses to all of the discovery that had been disputed. (Id., ¶ 12.) Plaintiff’s counsel agreed to give Defendant’s counsel until May 31, 2019 to provide supplemental responses. (Id.) On May 31, 2019, Defendant served supplemental responses. (Id., ¶ 13.)

Plaintiff argues that Defendant’s supplemental responses to Special Interrogatory Nos.

2, 4-7, 11, 13-15, 23, 27, and 34-35 are incomplete and evasive. Plaintiff further argues that Defendant waived objections to all of Plaintiff’s written discovery, including the specially prepared interrogatories, because Defendant failed to serve timely responses.

Meet and Confer

Plaintiff’s counsel has filed a declaration detailing his meet and confer efforts. Specifically, on July 10, 2019, Plaintiff’s counsel sent Defendant’s counsel a meet and confer letter setting forth the alleged deficiencies in Defendant’s supplemental responses and advised Defendant’s counsel that he was available to discuss the issues further. (Madison Decl., ¶ 15.) The parties exchanged several emails over the course of the following week, including a more detailed meet and confer letter sent by Plaintiff’s counsel on July 15, 2019. (Id., ¶ 16.)

The court finds the meet and confer efforts to be sufficient for purposes of this motion.

Special Interrogatory Nos. 2, 4, 11, 23, and 27

Through Special Interrogatory Nos. 2, 4, 11, 23, and 27, Plaintiff asks Defendant to “identify” by their name, last known address, and telephone number: persons who held any supervisory positions for the day-to-day operation of the Viper Room from January 1, 2013 to the present (SROG No. 2); persons in ownership/upper management to whom Mike Wilson reported while employed at the Viper Room (SROG No. 4); persons involved in the decision to terminate Mike Wilson’s employment at the Viper Room (SROG No. 11); all lawsuits filed against the Viper Room from January 1, 2013 to the present (SROG No. 23); persons involved with processing payroll for employees at the Viper Room from January 1, 2013 to the present (SROG No. 27).

In its supplemental responses, Defendant lists several names of persons it alleges to be responsive to each of the interrogatories. (See Plaintiff’s Separate Statement, pgs. 3-6.)

In his motion, Plaintiff argues that Defendant has failed to fully respond to these Special Interrogatories because Defendant has failed to properly “identify” the witnesses, as defined in the Interrogatory as requiring the name, last known address, and telephone number of the witnesses.

In its opposition, Defendant argues that Plaintiff has failed to meet his burden of demonstrating factual and legal reasons for compelling a further response to the interrogatories. However, Plaintiff, in its separate statement, states that the identity of the witnesses sought through the interrogatories above are crucial to issues clearly relevant to this case, and that Defendant’s current responses make it virtually impossible to track down the persons referenced for further discovery. Further, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc. § 2017.010.) This includes discovery “obtained of the identity and location of persons having knowledge of any discoverable matter[.]” (Id.)

Defendant further argues that it has responded fully and as completely as possible, with the information provided by the client and its in-house counsel. The court does not find Defendant’s assertion convincing as the information sought is reasonably expected to be in the possession of Defendant, and Defendant fails to provide any evidence, for example, in the form of a declaration of its custodian of records that, after a reasonable and diligent inquiry, the other information requested is unavailable to Defendant. If unable to provide the additional information requested, Defendant must at least set forth in its verified responses under penalty of perjury the steps that Defendant has taken in an attempt to respond. (CCP § 2030.220(a)-(c); Deyo v. Kilbourne, supra, 84 Cal. App. 3d at 782 [“If a person cannot furnish details, he should set forth the efforts made to secure the information. He cannot plead ignorance to information which can be obtained from sources under his control.”].)

Accordingly, the motion is GRANTED as to Special Interrogatory Nos. 2, 4, 11, 23, and 27.

Special Interrogatory Nos. 6 and 7

Special Interrogatory No. 6 asks Defendant to identify all persons involved in the decision to terminate Plaintiff’s employment at the Viper Room. Special Interrogatory asks Defendant to state facts concerning the reason Plaintiff’s employment at the Viper Room was terminated.

Defendant provides the following supplemental response to both interrogatories: “Responding party is unable to ascertain the precise reasons for the Employee’s alleged termination. Employee was supervised by defendant Maci Jane Wilson, as the general manager for the Viper Room. Defendant Maci Jane Wilson did not document or provide any other written notice of termination. At some point Employee was no longer included on the payroll submittals. Please note, the Viper Room has a mostly part-time staff between 5-6 employees working on a typical night and 17-22 mostly part time employees on each payroll cycle. Additionally, a number of the employees are active or touring musicians and it is not unusual for employees to be off the schedule for large chunks at a time. There is not a large staff or management that is charged with running operations at the club and most managerial decision are made by the acting general manager.”

The court finds that Defendant’s response fails to answer the question posed in Special Interrogatory No. 6. Defendant does not identify persons involved in the decision to terminate Plaintiff at the Viper Room by name, last known address, and telephone number. Nor does Defendant set forth the steps that Defendant has taken in an attempt to respond, for example, by speaking with its staff of 17-22 part-time employees. (CCP § 2030.220(a)-(c); Deyo v. Kilbourne, supra, 84 Cal. App. 3d at 782 [“If a person cannot furnish details, he should set forth the efforts made to secure the information. He cannot plead ignorance to information which can be obtained from sources under his control.”].)

The court further finds that Defendant’s response that it is “unable to ascertain the precise reason” (emphasis added) for Speziali’s termination is evasive as it implies that Defendant knows some reason, which has not been included. It is reasonable to assume that Defendant is the party most likely to have the information sought, and Plaintiff is entitled to ask a party to state his or her contentions as to relevant issues in the case, as well as the facts, witnesses or writing on which those contentions are based. (Code Civ. Proc. § 2030.01, subd. (b).) Further, Defendant has a duty to obtain the requested information in its possession, custody and control, as well as that from its agents, principles, and those under its employ. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 406 (“responding party may not respond to interrogatories just by asserting its ‘inability to respond’”). If Defendant does not know the reason for Plaintiff’s termination, then it should so state in its verified responses while setting forth the steps that Defendant has taken in an attempt to gather the information and respond. (CCP § 2030.220(a)-(c); Deyo v. Kilbourne, supra, 84 Cal. App. 3d at 782.)

Accordingly, Plaintiff’s motion is GRANTED as to Special Interrogatory Nos. 6 and 7.

Special Interrogatory Nos. 5 and 13-15

Plaintiff asks Defendant to identify: all persons employed at the Viper Room from January 1, 2013 to present (SROG No. 5); all persons hired as an employee of Viper Room from the date that Mike Wilson became Manager of the Viper Room to the date that Mike Wilson’s Employment with the Viper Room ended (SROG No. 13); all persons that were terminated as an employee at Viper Room from the date that Mike Wilson became Manager of the Viper Room to the date that Mike Wilson’s employment with the Viper Room ended (SROG No. 14); and all persons that quit working as an employee at Viper Room from the date that Mike Wilson became Manager of the Viper Room to the date that Mike Wilson’s employment with the Viper Room ended (SROG No. 15).

Defendant responded to each of these interrogatories with only the following objections: “Objection. The request is unduly burdensome and overbroad, and intended for the improper purpose of harassing, annoying, and/or to vex the responding party. the Request calls for information and documentation that is not relevant to the subject matter at issue herein, and the Request is not reasonably calculated to lead to the discovery of admissible evidence.”

Plaintiff contends that Defendant has waived objections because it failed to timely serve responses to Plaintiff’s Special Interrogatories, which were originally due on December 31, 2018. (Madison Decl., ¶ 4.) Plaintiff afforded Defendant two extensions to provide responses and requested that Defendant provide responses without objections. (Id., ¶¶ 6-7, Exhs. F-H.) A failure to timely respond to special interrogatories constitutes a waiver of objections to the interrogatories, including claims of privilege and “work product” protection. (Code Civ. Proc. § 2030.290, subd. (a).) The court has statutory power to grant relief from such waiver upon noticed motion for which Defendant has not moved here. (See Code Civ. Proc. § 2030.290, subd. (a).) Even if the court were to consider Defendant’s objections, Defendant has failed to set forth facts justifying its objections to the discovery sought by the interrogatories. (See Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.) The identity and location of persons having knowledge of discoverable matter is, itself, relevant and subject to discovery. (Code Civ. Proc. § 2017.010.) Even from Defendant’s scant responses thus far, it is apparent that Mike Wilson played a pivotal role in supervising Plaintiff and in the decision to terminate Plaintiff. Given that Wilson is no longer employed with Defendant, Plaintiff must be permitted to identify witnesses who may have interacted with Wilson and who may have knowledge as to the reasons for Plaintiff’s termination. Finally, Defendant fails to show how the interrogatory is so overbroad as to make responding to the interrogatories burdensome and oppressive. (See West Pico Furniture Co. of Los Angeles v. Superior Court (1961) 56 Cal.2d 407, 417-18.)

The motion is GRANTED as to Special Interrogatory Nos. 5, 13, 14, and 15.

Special Interrogatory Nos. 34 and 35

Special Interrogatory Nos. 34 and 35 ask Defendant to identify all persons that have had any ownership/financial interest in the Viper Room from January 1, 2013 to present, and to identify all persons involved with any management decisions of the Viper Room from January 1, 2013 to present, respectively.

Defendant has failed to properly “identify” the witnesses, as defined in the Interrogatory as requiring the name, last known address, and telephone number of the witnesses. If the information is unavailable to Defendant, as it contends in its opposition, Defendant should so state in its verified responses under penalty of perjury and also set forth the steps that Defendant has taken in an attempt to gather the information and respond. (CCP § 2030.220(a)-(c); Deyo v. Kilbourne, supra, 84 Cal. App. 3d at 782.)

Sanctions

Plaintiff requests sanctions against Defendant and its attorneys. The court finds Defendant’s evasive and incomplete answers and failures to respond fully a misuse of the discovery process. Further, sanctions are mandatory pursuant to Code of Civil Procedure section 2030.300(d) because Defendant unsuccessfully opposed this motion to compel further and did not act with substantial justification. Nor does the Court find any other circumstances that would make the imposition of the sanction unjust.

Sanctions have been sufficiently noticed against Defendant. However, the court finds Plaintiff’s requested amount of $4,882.00 excessive. The court finds that the amount of $2,082.00 reasonably compensates Plaintiff for filing fees ($60), electronic filing service fees ($22), and attorney’s fees (5 hours at $400 per hour) incurred for preparation and filing of the instant motion and appearance. Defendant Viper Room Sunset LLC and Defendant’s counsel, The Law Offices of Ronald Richards & Associates, A.P.C., are ordered to pay monetary sanctions, jointly and severally, in the amount of $2,082.00 to Plaintiff, by and through counsel, within thirty (30) days of notice of this order.

CONCLUSIONS AND ORDER

Plaintiff’s motion to compel further responses to special interrogatories is GRANTED. Defendant Viper Room Sunset LLC is ordered to serve verified, code-compliant further responses to Special Interrogatory Nos. 2, 4-7, 11, 13-15, 23, 27, and 34-35, without objection, within fifteen (15) days of notice of this order.

Plaintiff’s request for sanctions is granted as modified. Defendant Viper Room Sunset LLC and Defendant’s counsel, The Law Offices of Ronald Richards & Associates, A.P.C., are ordered to pay monetary sanctions, jointly and severally, in the amount of $2,082.00 to Plaintiff, by and through counsel, within thirty (30) days of notice of this order.

Plaintiff shall provide notice of this order and file proof of service of such.

DATED: November 13, 2019 ___________________________

Elaine Lu

Judge of the Superior Court