| Gonzalez, et al. v. Amtel, Inc., et al. | CASE NO. 112CV233684 | |
| DATE: 5 September 2014 | TIME: 9:00 | LINE NUMBER: 10 |
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 408.808.6856 and the opposing party no later than 4:00 PM Thursday 4 September 2014. Please specify the issue to be contested when calling the Court and counsel.
On 5 September 2014, the motion of Defendant Pankaj Gupta for an order for relief from waiver of objections was argued and submitted.
Plaintiffs filed formal opposition to the motion.
I. Statement of Facts
This action arises from the alleged sexual harassment of Plaintiffs Karlyn Gonzalez (“Gonzalez”) and Serena Ortega (“Ortega”) (collectively, “Plaintiffs”) by Shana Janssen (“Janssen”), a supervisor at defendant Amtel, Inc. (“Amtel”).
- Ortega’s claims:
Ortega began working as a telecom analyst for Amtel in June 2010. She alleges that from the beginning of her tenure at Amtel, Janssen repeatedly engaged in inappropriate conduct, including making vulgar comments, touching other employees in a sexually inappropriate manner, and making sexually suggestive comments to Ortega.
On 28 February 2011, Ortega reported this conduct to defendant Pankaj Gupta (“Gupta”), the chief executive officer of Amtel. Shortly thereafter, Janssen sent an email to all employees apologizing for her conduct and promising to refrain from further inappropriate conduct. Ortega claims that Janssen’s harassment continued unabated.
- Gonzalez’s claims:
In March of 2011, Gonzalez commenced her employment as a telecom analyst for Amtel under the supervision of Janssen. She alleges that Janssen proceeded to engage in a number of inappropriate acts, including complimenting portions of Gonzalez’s anatomy in a sexually suggestive manner, showing her a picture of a lesbian stripper, showing Gonzalez her new underwear and bras, and discussing the intimate details of her sex life.
- Plaintiffs meet with Defendants
In October 2011, Plaintiffs went to Gupta’s office to complain about Janssen’s conduct. Plaintiffs allege that Gupta did not take the complaint seriously, and Janssen’s inappropriate conduct continued.
In a further attempt to bring Janssen’s harassment to an end, on 24 April 2012, Plaintiffs met with Ann Juletta Otis (“Otis”), Amtel’s human resources director, and reported the details of Janssen’s inappropriate conduct.
Two days later, Plaintiffs met with Otis, Janssen, and Gupta for thirty minutes to discuss the situation. Janssen once again apologized and promised to end the inappropriate conduct.
Plaintiffs allege that the inappropriate conduct continued, and as a result, they suffered significant emotional distress.
In their operative second amended complaint, Plaintiffs allege four causes of action against Amtel and a number of its employees for (1) sexual harassment in violation of the Fair Employment and Housing Act (“FEHA”), (2) failure to prevent harassment in violation of FEHA, (3) negligent retention, and (4) intentional infliction of emotional distress.
The trial setting conference in this action is scheduled for 2 September 2014.
II. Discovery Dispute
On 22 May 2014, Plaintiffs served written discovery requests on Defendant Gupta: Special Interrogatories, Set One (“SI”), Requests for Production, Set One (“RPD”), and Form Interrogatories, Set One. Defendant Gupta requested a one week extension of time to respond. The extension was granted, and responses were due on 30 June 2014. No responses were served and the parties were unable to informally resolve the dispute.
On 3 July 2014, Plaintiffs filed a motion to compel discovery responses.
On 5 August 2014, Defendant Gupta filed an opposition to the motion to compel. Attached were SI responses, dated 5 August 2014 and RPD responses, dated 5 August 2014. The responses were untimely, but contained objections.
On 8 August 2014, the court granted Plaintiff’s motion to compel discovery responses. Defendant Gupta was ordered to provide code compliant responses without objections within 20 days of the filing of the order.
On 18 August 2014, Defendant Gupta filed this motion seeking an order for relief from waiver of objections.
III. Discussion
Defendant Gupta moves for an order relieving him from the waiver of his right to raise objections to the following discovery requests: (1) SI Nos. 9, 10, 13, 14, 15, 16, 25, 26, 30, 31, and 32; and (2) RPD Nos. 1, 2, 3, 4, 7, 9, 10, and 12. The motion seeks relief based on the attorney’s mistake, inadvertence, and neglect in failing to timely serve discovery responses.
Plaintiffs oppose the motion on grounds that Defendant Gupta has not provided any substantially compliant responses and that his counsel has a history of abusing civil discovery and violating court orders.
A. Mootness
With respect to SI Nos. 9, 10, 25, 26, and 30-32 and RPD Nos. 1, 2, 3, 4, 7, 9, 10, and 12, Plaintiffs argue that any objections would be moot because the parties have stipulated to a protective order regarding this discovery. However, Plaintiffs have not presented any evidence of a protective order in their opposition to support this argument. Also, with respect to RPD No. 4, Plaintiffs claim that Defendant Gupta should be allowed to preserve his privacy objection as to this request. (See Plaintiffs’ Opp. Brief at p. 10.) Given this concession, the motion is granted with respect to RPD No. 4.
B. Legal Standard
If the responding party fails to provide timely responses, all objections, including objections on the basis of privilege, are waived. (Code Civ. Proc., §§ 2030.290, subd. (a) [interrogatories]; 2031.300, subd. (a) [document requests].) The court may relieve a party of such a waiver if, on noticed motion, the affected party demonstrates that: (1) they have subsequently served discovery responses in substantial compliance with the relevant sections of the Code of Civil Procedure; and (2) the failure to timely serve the responses was the result of mistake, inadvertence, or excusable neglect. (Id., §§ 2030.290, subd. (a)(1)-(2); 2031.300, subd. (a)(1)-(2).)
C. Substantial Compliance
To be eligible for relief, Defendant Gupta must first show that he has subsequently served discovery responses in substantial compliance with the pertinent sections under the Code of Civil Procedure. In support, Defendant Gupta provides a declaration from his attorney.
However, the declaration fails to address whether Defendant Gupta served responses to the discovery requests that are in substantial compliance with the code. Instead, the declaration addresses only counsel’s alleged mistake, inadvertence, or excusable neglect in failing to serve timely discovery responses. Furthermore, the responses were not included as exhibits to the motion to enable the court to specifically identify the responses at issue. In reply, Defendant Gupta has cured this deficiency by attaching the discovery responses to his attorney’s supplemental declaration. (See Supplemental Declaration of Eugene Flemate at Exhibit B.) Having served responses in substantial compliance with the code, the court now addresses whether defense counsel’s mistake in serving untimely responses constitutes mistake, inadvertence or excusable neglect.
D. Mistake, Inadvertence, or Excusable Neglect
Generally, the standard for what constitutes “mistake, inadvertence, or excusable neglect,” depends on the facts of the case. (See City of Fresno v. Sup. Ct. (1988) 205 Cal.App.3d 1459, 1466-67.) For example, an attorney’s mistaken interpretation of the law, where the law is simple and not subject to debate, would not qualify as a basis for relief, nor would a mistake or inadvertent action as the result of having a busy practice provide a basis for relief. (Id. at p. 1467; see also Scottsdale Ins. Co. v. Sup. Ct. (1997) 59 Cal.App.4th 263, 275-76.)
With respect to evidence involving mistake, inadvertence, or excusable neglect, defendant’s counsel claims that he could not serve timely responses because of a calendaring error in his office and a heavy caseload. (See Declaration of Eugene Flemate at ¶¶ 4, 5, and 12.) As stated above, simply having a busy practice does not provide a basis for relief. (See City of Fresno v. Sup. Ct., supra, 205 Cal.App.3d at p. 1467.) To the extent that defense counsel argues that he did not timely respond because of a calendaring error, such an argument does not explain why he delayed more than a month in serving discovery responses. Based on the papers submitted to the court, defense counsel appears to have been aware of his error as early as July 1, 2014. (See Declaration of Eugene Flemate at ¶ 9.)
However, defense counsel did not serve discovery responses until August 5, 2014, more than a month later. (See Declaration of Michael Levy at Exhibit I; see also Supplemental Declaration of Eugene Flemate at Exhibit B.) In deciding whether counsel’s error is excusable, courts look to: (1) the nature of the mistake or neglect; and (2) whether counsel was otherwise diligent in investigating and pursuing the claim. (See Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276.) Having failed to show diligence, the court finds that counsel has not provided a sufficient ground demonstrating that the failure to timely serve responses was excusable.
Order
Defendant Gupta’s motion for an order for relief from waiver of objections is GRANTED IN PART and DENIED IN PART. The motion is granted with respect to RPD No. 4 as Plaintiffs concede that Defendant Gupta be allowed to preserve his privacy objection. The motion is denied with respect to SI Nos. 9, 10, 13, 14, 15, 16, 25, 26, 30, 31, and 32; and RPD Nos. 1, 2, 3, 7, 9, 10, and 12.
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DATED: |
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HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara |
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