Jayant Ratti v. Microsonic Systems, Inc., et al. CASE NO. 112CV224158
DATE: 15 May 2014 TIME: 9:00 LINE NUMBER: 4
This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.882.6856 and the opposing party no later than 4:00 PM Wednesday 14 May 2014. Please specify the issue to be contested when calling the Court and counsel.

On 15 May 2014, the motion of Plaintiff is Jayant Ratti to compel Defendant Microsonic Systems, Inc.’s further responses to demand for inspections of documents, set two, and for monetary sanctions was argued and submitted. Defendant Microsonic Systems, Inc. filed a formal opposition to the motion, in which it requests monetary sanctions.

The motion of Defendant Microsonic Systems, Inc. for relief from waiver was also argued and submitted. Plaintiff Jayant Ratti filed a formal opposition to the motion.

All parties are reminded that all papers must comply with California Rules of Court, rule 3.1110(f).

Statement of Facts

This action arises from an employment dispute. Plaintiff Jayant Ratti (“Plaintiff”) alleges that Defendant Microsonic Systems, Inc. (“Defendant”) induced him to move to California for a salary of $95,000.00 and a $15,000.00 bonus, but subsequently paid him a salary of only $45,000.00 and loaned him $7,000.00.

Plaintiff began working for Defendant in September 2011. Defendant Vibhu Vivek (“Mr. Vivek”) was his supervisor. During his employment, Plaintiff claims that he objected to Defendant’s use of pirated software after he realized that some of the software utilized in the company was unlicensed.

Plaintiff asserts that after he objected to using the pirated software, Defendant and Mr. Vivek began a campaign of harassment against him. He alleges that on multiple occasions Mr. Vivek complained about his work performance and made untrue and derogatory statements about his intelligence and competency to other individuals. Mr. Vivek allegedly told persons that Plaintiff was mentally unstable, was a psychopath, and made false allegations that Defendant was using pirated software for financial gain.

Plaintiff claims that Defendant terminated his employment on 14 December 2011, in retaliation for his objection to the use of the pirated software. Plaintiff further asserts that Defendant has refused to pay his final two paychecks.

Plaintiff filed the operative complaint on 9 March 2012, alleging the following causes of action: (1) slander; (2) fraudulent inducement to move from out of state; (3) harassment; (4) wrongful termination; and (5) violation of the Fair Labor Standards Act.

Discovery Dispute

Defendant was initially represented by the law firm of Colt / Wallerstein LLP. Mr. Thomas Wallerstein (“Mr. Wallerstein”) became Defendant’s counsel and began working for the law firm of Venable LLP. Colt / Wallerstein LLP subsequently became defunct, and a new firm, Colt Singer Bea LLP, began operating at Colt / Wallerstein LLP’s former address.

On 1 October 2014, Mr. Wallerstein emailed Plaintiff’s counsel’s assistant, Kiwi Nguyen (“Ms. Nguyen”), and advised her that “effective immediately” he was working at Venable LLP and he would continue to represent Defendant. (Wallerstein Waiver Dec., p. 1:16-21.) He further advised that he would file a substitution of attorney form shortly. (See id.) The email reflected his new contact information in the signature line. (See id.) Later that day, Mr. Wallerstein exchanged further emails with Ms. Nguyen using his new email address with Venable LLP. (Wallerstein Waiver Dec., p. 1:22-24.)

Mr. Wallerstein declares that it has been the practice of Plaintiff’s counsel and his law firm to correspond with him through emails with Ms. Nguyen regarding the coordination of deposition dates, transmission of documents, and receipt of and response to correspondence. (Wallerstein Relief from Waiver Dec., p. 1:13-16.)

On 10 October 2014, Plaintiff attempted to serve Defendant by mail with demand for inspection of documents, set two at Colt / Wallerstein LLP’s former address. (See Roe Motion to Compel Dec., p. 11:9-12.) Mr. Wallerstein declares that he is not aware of whether Colt Singer Bea LLP received the demand for inspection of documents, set two, and was not notified by anyone at the firm that the same had been received. (See Wallerstein Relief from Waiver Dec., p. 1:25-28; 2:1-2.)

Defendant filed and served a formal substitution of attorney on Plaintiff by mail on 11 October 2014. (See Wallerstein Relief from Waiver Dec., p. 2:3-5.) Plaintiff’s counsel declares that the substitution of attorney form was received by his office on 15 October 2014. (See Roe Motion to Compel Dec., p. 11:13-16.)

The parties went to mediation on 31 January 2014, at which time Defendant learned of Plaintiff’s demand for inspection of documents, set two. (See Roe Motion to Compel Dec., p. 11:21-23; Wallerstein Relief from Waiver Dec., p. 11:6-9.)

On 3 February 2014, Defendant served objection-only responses to Plaintiff’s demand for inspection of documents, set two. (See Wallerstein Relief from Waiver Dec., p. 2:10-12.)

Plaintiff’s counsel sent a meet and confer letter via email to Defendant’s counsel on 11 February 2014. (See Roe Motion to Compel Dec., Ex. E.) Plaintiff’s counsel asserted that Defendant’s objections to Plaintiff’s demand for inspection of documents, set two were without merit because they had been waived due to Defendant’s failure to timely respond, and requested further responses. Defendant’s counsel replied via email on 12 February 2014, and argued that Plaintiff’s demand for inspection of documents, set two were never properly served and Defendant’s objections were appropriate. (See id.)

Defendant then supplemented some of its responses to Plaintiff’s demand for inspection of documents, set two on 25 February 2014. (See Roe Motion to Compel Dec., Ex. C.)

The parties engaged in meet and confer efforts on 19 March 2014, 20 March 2014, and 24 March 2014, with regard to the supplemental responses provided and Defendant’s objections. (See Roe Motion to Compel Dec., Ex. E.) In relevant part, Plaintiff requested that Defendant provide documents in response to demand for inspection of documents, set two, Nos. 27 and 28 relating to software licenses obtained by Defendant for Microsoft Office and from Altium. Defendant refused to produce the requested documents and maintained that its objections were proper because the documents regarding licenses are not relevant to the instant case.

On 2 April 2014, Plaintiff filed the instant motion to compel further responses to demand for inspection of documents, set two, Nos. 27 and 28, and for an award of monetary sanctions, which was set for hearing on 16 May 2014. On 3 April 2014, Defendant filed the instant motion for relief from waiver, which was set for hearing on 25 April 2014.

On 15 April 2014, Plaintiff filed opposition papers to Defendant’s motion for relief from waiver and requested that the motion be moved to 16 May 2014, so it could be heard at the same time as his motion to compel further responses to demand for inspection of documents, set two.

Defendant’s motion for relief from waiver proceeded to hearing on 25 April 2014, at which time the Court indicated that it was inclined to relieve Defendant from waiver of objections to Plaintiff’s demand for inspection of documents, set two. However, the Court deferred Defendant’s motion and continued the matter to 16 May 2014, to be heard at the same time as Plaintiff’s motion to compel further response to demand for inspection of documents, set two.

Defendant filed opposition papers to Plaintiff’s motion to compel further response to demand for inspection of documents, set two on 2 May 2014. On 8 May 2014, Plaintiff filed reply papers.

The Court thereafter moved the hearing on the motions to 15 May 2014.

Discussion

I. Defendant’s Motion for Relief from Waiver

Defendant argues that the Court should relieve it from any purported waiver of its objections because it complied with Code of Civil Procedure section 2031.300, subdivision (a)(1) and (2).

A. Legal Standard

Code of Civil Procedure section 2031.300, subdivision (a) states that a party who fails to serve a timely response to a demand for inspection waives any objection to the demand for inspection. That provision further states, however, that “[t]he court, on motion, may relieve that party from this waiver” if it determines that the party has subsequently served a response that is in substantial compliance with Code of Civil Procedure sections 2031.210, 2031.220, 2031.230, 2031.420, and 2031.280, and the party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.

The applicable standard under these circumstances is the same as for relief from default under Code of Civil procedure section 473, subdivision (b). (See City of Fresno v. Super. Ct. (Green) (1988) 205 Cal.App.3d 1459, 1467 [noting that “being busy, or not fully understanding the provisions of a code section” are not sufficient to grant relief].)

B. Analysis

Defendant argues that Plaintiff did not properly serve its demand for inspection of documents, set two on Defendant because he served the discovery requests on a law firm which he knew was no longer representing Defendant and no longer in operation. Moreover, Defendant asserts that its responses served on 3 February 2014, were in substantial compliance with Code of Civil Procedure sections 2031.210, 2031.220, 2031.230, 2031.420, and 2031.280, and that the failure to serve timely responses was excusable due to Mr. Wallerstein’s 1 October 2014 email informing Plaintiff’s counsel that he was working at Venable LLP.

Although Defendant’s responses to Plaintiff’s demand for inspection of documents, set two consisted entirely of general objections and objections to specific demands, objection-only responses are permitted by statute. (See Code Civ. Proc., § 2031.210, subd. (a)(3).) Thus, the Court finds that Defendant’s responses are in substantial compliance with Code of Civil Procedure sections 2031.210, 2031.220, 2031.230, 2031.420, and 2031.280.

In addition, Defendant has demonstrated that its failure to serve timely responses was the result of excusable neglect. Defendant’s counsel informed Plaintiff’s counsel via email that he had left Colt / Wallerstein LLP, begun working at Venable LLP, would continue to represent Defendant, and would be filing substitution of attorney forms. While Plaintiff’s demand for inspection of documents, set two was served by mail on 10 October 2014, it is unreasonable to assume that the same was received by Defendant’s counsel as it was served at his former address.

Furthermore, Defendant’s counsel subsequently responded to Plaintiff’s demand for inspection of documents, set two on 3 February 2014, shortly after learning of the discovery requests at the 31 January 2014 mediation. Since Plaintiff’s counsel received notice that Mr. Wallerstein was no longer working at Colt / Wallerstein LLP as of 1 October 2014, and did not serve the demand for inspection of documents, set two at Mr. Wallerstein’s new address, Plaintiff’s failure to serve a timely response was the result of excusable neglect.

Accordingly, Defendant has satisfied both requirements for relief from waiver under Code of Civil Procedure section 2031.300, subdivision (a) and its motion for relief from waiver is therefore GRANTED.

II. Plaintiff’s Motion to Compel Further Responses to Demand for Inspection of Documents, Set Two, Nos. 27 and 28

Plaintiff moves for an order compelling further response to demand for inspection of documents, set two, Nos. 27 and 28, arguing that Defendant waived its objections by failing to serve timely responses and its objections are without merit. Defendant opposes the motion and argues that Plaintiff’s motion must be denied because he failed to file a motion to compel further responses to his demand for inspection of documents, set one, which contain virtually identical requests for the same documents that are now sought by demand for inspection of documents, set two, Nos. 27 and 28.

A. Legal Standard

If a party demanding a response to a document request deems: (1) a statement of compliance or an answer is incomplete; (2) a representation of inability to comply is inadequate, incomplete, or evasive; or (3) an objection is without merit or too general, that party may move for an order compelling further response to the demand. (Code Civ. Proc., §§ 2031.310.) A motion to compel further responses to requests for the production of documents must “set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).)

B. Procedural Issues

As a threshold matter, Defendant argues that the instant motion must be denied because Plaintiff did not timely file a motion to compel further responses to demand for inspection of documents, set one, that he previously propounded, which contain virtually identical requests for the same documents that are now sought by demand for inspection of documents, set two, Nos. 27 and 28.

Motions to compel further responses to demand for inspection of documents must be filed within 45 days after the responses were served. (See Code Civ. Proc., § 2031.310, subd. (c).) “[T]he time within which to make a motion to compel production of documents is mandatory and jurisdictional.” (Sexton v. Super. Ct. (1997) 58 Cal.App.4th 1403, 1409-1410.) Thus, failure to timely move to compel within the specified period constitutes a waiver of any right to compel a further response and it renders the court without authority to rule on motions to compel other than to deny them. (See id.)

Defendant asserts that Plaintiff’s motion is untimely because he did not file a motion to compel further responses to demand for inspection of documents, set one, and a party who fails to file a motion to compel within the deadline provided by law may not avoid the consequences of his or her delay and lack of diligence by propounding the same discovery again. Defendant cites Professional Career Colleges v. Super. Ct. (1989) 207 Cal.App.3d 490, in support of its position.

In Professional Career Colleges, the plaintiff served a first set of interrogatories on the Defendant who responded with various objections. (See Professional Career Colleges, supra, 207 Cal.App.3d at p. 492.) The plaintiff did not file a motion to compel even though the plaintiff believed the objections lacked merit. (See id.) The plaintiff subsequently re-served a substantively, although not literally, identical set of interrogatories in an effort to circumvent the time limitation. (See id. at p. 490.) The court held that serving the new request could not avoid the motion to compel deadline triggered by the response to the earlier-issued, substantively identical request. (See id. at p. 494.)

The instant case is indistinguishable from Professional Career Colleges. Plaintiff served Defendant with demand for inspection of documents, set one, on 24 July 2012. Demand for inspection of documents, set one, No. 21 asked Defendant to produce “[a]ll writings [. . .] which refers to, summarizes or constitutes a license for software from Microsoft Office Enterprise Edition.” (Wallerstein Dec., Ex. 1, p. 5:19-21.) Demand for inspection of documents, set one, No. 12 asked Defendant to produce “[a]ll writings [. . .] which refers to, summarizes or constitutes a license for software from Altium Design Winter 2009.” (Wallerstein Dec., Ex. 1, p. 6:20-23.) Defendant served objection-only responses to demand for inspection of documents, set one, on 28 August 2012. (See Wallerstein Dec., Ex. 2.) Plaintiff did not file a motion to compel further responses thereto.

Over one year later, Plaintiff served demand for inspection of documents, set two. Demand for inspection of documents, set two, Nos. 27 and 28 are virtually identical to demand for inspection of documents, set one, Nos. 12 and 21, and appear to request the same documents. Demand for inspection of documents, set two, No. 27 asks Defendant to produce “[a]ll writings [. . .] which refers to, summarizes or constitutes a license for software for Microsoft Office obtained by Microsonic Systems, Inc.” (Roe Dec., Ex. A, p. 4:8-11.) Demand for inspection of documents, set two, No. 28 asks Defendant to produce “[a]ll writings [. . .] which refers to, summarizes or constitutes a license for any software obtained from Altium obtained by Microsonic Systems, Inc.” (Roe Dec., Ex. A, p. 4:12-15.)

Demand for inspection of documents, set two, No. 27 and demand for inspection of documents, set one, No. 21 both ask for all writings that relate to any licenses for software for Microsoft Office. Similarly, demand for inspection of documents, set two, No. 28 and demand for inspection of documents, set one, No. 12 both ask for all writings that relate to any licenses for software for Altium. The minor changes in text do not change the substantive content of the requests. Thus, demand for inspection of documents, set two, Nos. 27 and 28 are duplicative of demand for inspection of documents, set one, Nos. 12 and 21 and Plaintiff’s deadline to move to compel further responses was triggered by Defendant’s service of responses to demand for inspection of documents, set one, on 28 August 2012.

Plaintiff’s motion to compel further responses is consequently untimely. Because the motion is untimely, the Court lacks jurisdiction to take any action other than to deny it and, accordingly, the motion is DENIED.

III. Requests for Monetary Sanctions

Both parties request sanctions in connection with Plaintiff’s motion to compel further responses to demand for inspection of documents.

A. Defendant’s Request for Sanctions

Defendant requests monetary sanctions in the amount of $2,000.00 under Code of Civil Procedure section 2031.310, subdivision (h).

Code of Civil Procedure section 2023.040 states that a request for a sanction shall identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.

Here, Defendant did not identify in its opposition papers the person, party, and/or attorney against whom the sanction is sought. Accordingly, Defendant’s request for monetary sanctions is DENIED.

B. Plaintiff’s Request for Sanctions

Plaintiff requests monetary sanctions against Defendant or Defendant’s counsel in the amount of $1,110.00 under Code of Civil Procedure section 2031.320, subdivision (h).

Code of Civil Procedure section 2031.320 does not contain a subdivision (h). Moreover, Code of Civil Procedure section 2031.320 allows for the imposition of monetary sanctions in connection with a motion to compel compliance with responses to demand for inspection of documents. Here, Plaintiff filed a motion to compel further responses to demand for inspection of documents under Code of Civil Procedure section 2031.310, not a motion to compel compliance. Thus, Code of Civil Procedure section 2031.320 is inapplicable.

It appears to the Court that Plaintiff made a typographical error and actually intended to seek sanctions under Code of Civil Procedure section 2031.310, subdivision (h) which allows for the imposition of sanctions in connection with a motion to compel further responses to demand for inspection of documents.

Code of Civil Procedure section 2031.310, subdivision (h) provides that the court shall impose a monetary sanction against any party who unsuccessfully makes or opposes a motion to compel further responses to demands for production, unless the party acted with substantial justification or other circumstances make the imposition of the sanction unjust.

In the instant case, Plaintiff was unsuccessful on its motion. Accordingly, Plaintiff’s request for sanctions is DENIED.

Conclusion and Order

Defendant’s motion for relief from waiver is GRANTED.

Plaintiff’s motion to compel further responses to demand for inspection of documents, set two, is DENIED.

Defendant’s request for monetary sanctions is DENIED.

Plaintiff’s request for monetary sanctions is DENIED.