Case Number: 19PSCV00239 Hearing Date: December 11, 2019 Dept: J

HEARING DATE: Wednesday, December 11, 2019

NOTICE: Motions #1 and #2: OK[1]

RE: Ramirez v. Luis Arturo Alvarado, D.D.S., Inc., et al. (19PSCV00239)

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1. Defendants Luis Arturo Alvarado, D.D.S. Inc. and Luis Arturo Alvarado’s MOTION

TO COMPEL PROPER VERIFICATIONS FOR PLAINTIFF’S RESPONSES TO

DEFENDANTS’ DISCOVERY REQUESTS (INTERROGATORIES; DOCUMENT

REQUESTS), OR, IN THE ALTERNATIVE, REQUEST FOR EVIDENTIARY

SANCTION

Responding Party: Plaintiff, Liliana Ramirez

2. Defendants Luis Arturo Alvarado, D.D.S. Inc. and Luis Arturo Alvarado’s MOTION

FOR ORDER COMPELLING FURTHER RESPONSES TO INTERROGATORIES OR, IN THE ALTERNATIVE, REQUEST FOR EVIDENTIARY SANCTION

Responding Party: Plaintiff, Liliana Ramirez

Tentative Ruling

1. Defendants Luis Arturo Alvarado, D.D.S. Inc. and Luis Arturo Alvarado’s Motion to

Compel Proper Verifications for Plaintiff’s Responses to Defendants’ Discovery Requests

(Interrogatories; Document Requests) is GRANTED. Plaintiff is ordered to provide Code compliant verifications to Defendants’ Form Interrogatories—Employment, Set One; Form Interrogatories—General, Set One; Requests for Production of Documents, Set One; and Requests for Admissions, Set One within 10 days.

2. Defendants Luis Arturo Alvarado, D.D.S. Inc. and Luis Arturo Alvarado’s Motion for Order Compelling Further Responses to Interrogatories or, in the Alternative, Request for Evidentiary Sanction is DENIED. Defendants’ request for monetary and/or evidentiary sanctions is DENIED. Plaintiff’s request for monetary sanctions is GRANTED, in the reduced amount of $750.00. Sanctions are imposed jointly and severally against Defendants and their counsel and are payable within 30 days of the date of the hearing.

Background

This is a wage and hour lawsuit. On September 13, 2018, Plaintiff Lilian Ramirez (“Plaintiff”) filed a complaint, asserting causes of action against Defendants Luis Arturo Alvarado, D.D.S. Inc., Luis Arturo Alvarado (collectively, “Defendants”) and Does 1-20 for:

Failure to Pay Overtime Wages
Failure to Pay for Meal Periods
Failure to Pay for Rest Periods
Failure to Pay Earned Wages at Time of Separation
Conversion
Failure to Provide Accurate Wage Statement
Violation of Business & Professions Code § 17200, et seq.

On January 25, 2019, a Stipulation and Order to Transfer Venue from Orange County Superior Court to Los Angeles County Superior Court was filed.

The Final Status Conference is set for September 14, 2020. A jury trial is set for September 29, 2020.

1. Motion to Compel Verifications

Legal Standard

“A party to whom the interrogatories are directed shall sign the response under oath unless the

response contains only objections.” (CCP § 2030.050(a); see also CCP § 2033.210(a) [requests

for admission]; CCP§ 2031.250(a) [requests for production of documents].)

CCP § 2015.5 provides that:

“Whenever, under any law of this state or under any rule, regulation, order or requirement made pursuant to the law of this state, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn statement, declaration, verification, certificate, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may with like force and effect be supported, evidenced, established or proved by the unsworn statement, declaration, verification, or certificate, in writing of such person which recites that it is certified or declared by him or her to be true under penalty of perjury, is subscribed by him or her, and (1), if executed within this state, states the date and place of execution, or (2), if executed at any place, within or without this state, states the date of execution and that it is so certified or declared under the laws of the State of California. The certification or declaration may be in substantially the following form:

(a) If executed within this state:

‘I certify (or declare) under penalty of perjury that the foregoing is true and correct’:

(Date and Place)

(Signature)

(b) If executed at any place, within or without this state:

‘I certify (or declare) under penalty of perjury under the laws of the State of California that the foregoing is true and correct’:

(Date)

(Signature)

Discussion

Defendants move the court for an order compelling Plaintiff to provide signed and dated

verifications that conform with the Code, in response to Defendants’ Form Interrogatories

(General and Employment), Request for Production of Documents (Set No. One) and Request

for Admissions (Set One). Defendants alternatively request that evidentiary sanctions be

imposed. Defendants seek monetary sanctions against Plaintiff and/or Plaintiff’s counsel in the

amount of $5,310.00 [calculated as follows: 4.5 hours preparing motion, plus 3 hours attending

hearing at $700.00/hour, plus $60.00 filing fee].

Evidentiary Objections

Plaintiff’s objections to the Declaration of Brett Wiseman are ruled on as follows: OVERRULED as to Nos. 1-5 and 8-12 and SUSTAINED as to Nos. 6 and 7.

Merits

At the outset, the court summarily denies Defendants’ alternative request for evidentiary sanctions, inasmuch as the motion is not accompanied by a California Rules of Court (“CRC”) Rule 3.1345(a)(7) separate statement (i.e., “[a]ny motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement. The motions that require a separate statement include a motion:. . . For issue or evidentiary sanctions”).

Defendants have provided the court with Plaintiff’s verifications to Form Interrogatories—Employment, Set One; Form Interrogatories—General, Set One; Special Interrogatories, Set One; Requests for Production of Documents, Set One; and Requests for Admissions, Set One. (Holguin Decl., ¶8, Exh. 7.) The court notes that the motion pertains only to “Defendants’ Form Interrogatories (General and Employment), Request for Production of Documents (Set No. 1), and Request for Admissions (Set One). The court, then declines to expand the scope of the motion to include Plaintiff’s verification as to Special Interrogatories, Set One.

A review of Exhibit 7 reflects that Plaintiffs’ verifications to the Form Interrogatories—Employment, Set One; Form Interrogatories—General, Set One; Requests for Production of Documents, Set One; and Requests for Admissions, Set One all set forth an execution date of “September , 2019,” which is incomplete and improper. The verifications do not identify, moreover, the place of execution. Plaintiff has also checked two boxes, one stating “I am a party to this action. The matters stated in the foregoing document are true of my own knowledge, except as to those matters which are stated on information and belief, and as to those matters, I believe them to be true” and the other stating, “I am informed and believe and on that ground allege that the matters stated in the foregoing document are true.” The first paragraph suggests that portions of Plaintiff’s responses are made on information and belief, and that Plaintiff has expressly stated therein that those portions are made on information and belief. The second paragraph, however, suggests that the entirety of Plaintiff’s responses are made on information and belief. Plaintiff’s verification, then, is confusing, inconsistent, and improper. (See Baustert v. Superior Court (2005) 129 Cal.App.4th 1269, 1275, fn. 5.)

The motion, then, is GRANTED. Plaintiff is ordered to provide Code compliant verifications to Defendants’ Form Interrogatories—Employment, Set One; Form Interrogatories—General, Set One; Requests for Production of Documents, Set One; and Requests for Admissions, Set One within 10 days.

Sanctions are declined for CCP § 2023.040 non-compliance (i.e., “[a] request for a sanction

shall, in the notice of motion, identify every person, party, and attorney against whom the

sanction is sought, and specify the type of sanction sought. . .”).

2. Motion to Compel Furthers Re: Interrogatories

Legal Standard

A party may move to compel further responses to interrogatories if the propounding party deems that (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, or (3) an objection to an interrogatory is without merit or too general. (CCP § 2030.300(a).)

The moving party must demonstrate a “reasonable and good faith attempt” at an informal resolution of each issue presented. (CCP §§ 2016.040, 2030.300(b).)

Notice of the motion must be provided within 45 days of service of the verified response, or any supplemental verified response, or on or before any specific later date to which the parties have agreed in writing. (CCP § 2030.300(c).) The responding party has the burden of justifying the objections to the requests. (Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221.)

Motions to compel further responses must always be accompanied by a separate statement containing the requests and the responses, verbatim, as well as reasons why a further response is warranted. (California Rules of Court [CRC] Rule 3.1345(a).) The separate statement must also be complete in itself; no extrinsic materials may be incorporated by reference. (CRC Rule 3.1345(c).)

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 interrogatories or requests for admissions, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make it unjust to impose sanctions. (CCP § 2030.300(d).)

Discussion

Defendants move the court for an order compelling Plaintiff’s further responses to Special Interrogatories (i.e., Nos. 3 and 14) and Form Interrogatories—General (Nos. 2.7, 12.1 and 17.1).

Evidentiary Objections

Plaintiff’s objections to the Declaration of Brett Wiseman are ruled on as follows: OVERRULED as to Nos. 1-5 and 8-13 and SUSTAINED as to Nos. 6 and 7.

Merits

On July 24, 2019, Plaintiff was served with the subject discovery. (Holguin Decl., ¶2.) On August 23, 2019, Plaintiff’s counsel Brett Wiseman (“Wiseman”) emailed Defendants’ counsel Vida M. Holguin (“Holguin”), wherein Wiseman requested a one-week extension of time to respond to the outstanding discovery requests. (Id., ¶2, Exh. 1.) Holguin advised, “[a] one-week extension to provide responses is fine; so service on 9/3/19.” (Id.) Holguin subsequently received Plaintiff’s responses on September 7, 2019; the accompanying proof of service was unsigned, and the responses were not verified. (Id., ¶3, Exh. 2.) Holguin, in a September 11, 2019 letter to Wiseman, advised Wiseman of the foregoing and advised that “[f]or the fact-specific unverified responses, the responses are late and therefore, all objections to them are waived. For the responses wherein only objections were made, because the proof of service was unsigned concomitant with the late receipt, these objections are also waived.” (Id.) Holguin requested that supplemental verified responses without objection be received no later than September 23, 2019. (Id.) Counsel thereafter conferred, but not regarding the content of any of substantive content of the responses in issue. (Id., ¶¶ 4-6, Exhs. 3-6.) On September 23, 2019, Wiseman’s office sent over signed but undated verifications under information and belief from Plaintiff. (Id., ¶8, Exh. 7.)

Plaintiff did not waive her objections by failing to provide timely verifications. (See Weil & Brown, et al. CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2019) ¶ 8:1102.1 [“Where the response contains both answer and objections, there is no need to verify that portion of the response containing the objections. But the portion containing fact-specific responses must be verified. (Food 4 Less Supermarkets, Inc. v. Sup.Ct. (Fletcher) (1995) 40 Cal.App.4th 651, 657”).] Plaintiff’s responses to Special Interrogatories Nos. 3 and 14 and Form Interrogatories—General Nos. 2.7 and 12.1 contain both objections and substantive information. Plaintiff’s response to Form Interrogatories—General No. 17.1 contains objections only. Responses consisting entirely of objections need not be verified. (Blue Ridge Ins. Co. v. Sup. Ct. (Kippen) (1988) 202 Cal.App.3d 339, 344.) Although Holguin claims in her September 11, 2019 correspondence that the responses were late, it is unclear how this is so, since she concedes receiving same on September 7, 2019 and as she expressly agreed to allow Wiseman to serve the responses on September 3, 2019. Although Holguin complains that the proof of service was undated, Holguin could have provided the court with a copy of the postmarked envelope containing the responses to show that they were not, in fact, served on September 3, 2019 and were thus untimely. The court notes that Wiseman provided Holguin with a signed copy of a proof of service dated September 3, 2019, albeit in connection with Plaintiff’s responses to Requests for Admissions. Moreover, Plaintiff, in opposition, has provided signed proofs of service as to the subject discovery. (See Exhibit 1.) Based on the information presented to the court, it appears that the responses were timely served, but that the verifications were tardy.

The court determines that Holguin failed to engage in a meet and confer with Wiseman regarding the inadequacy of the substantive content of Special Interrogatories Nos. 3 and 14 and Form Interrogatories—General Nos. 2.7 and 12.1. Holguin also failed to meet and confer with Wiseman regarding the validity of the objections interposed to each of the discovery requests at issue.

The motion, then, is denied in its entirety, including Defendants’ request for evidentiary and/or monetary sanctions. The court is inclined to grant Plaintiff’s opposing request for sanctions in the reduced amount of $750.00 (i.e., 1 hour preparing opposition, plus one 1 hour attending hearing at $375.00/hour), jointly and severally against Defendants and their counsel. Sanctions are payable within 30 days of the date of the hearing.

[1] The motions were originally set for hearing on November 27, 2019; on that date, counsel for Plaintiff informed the court that Plaintiff’s oppositions were filed in this matter on November 4, 2019 in the wrong county. Accordingly, the court continued the hearing to December 11, 2019 and ordered counsel for Plaintiff to file the oppositions with the court forthwith. Notice was waived.