2013-00152524-CU-WT

Joan Bryant vs. Stationary Engineers Local 39

Nature of Proceeding: Motion to Compel Plaintiff to Amend Special Interrogatories, Production

Filed By: Crowley, Alan

Defendants Stationary Engineers Local 39 (“Local 39”), International Union of
Operating Engineers and Jerry Kalmar (“Kalmar”) (collectively, “Defendants”) move to
compel Plaintiff Joan Bryant (“Plaintiff”) to amend her responses to special
interrogatories (“Special Interrogatories”), to provide responses to Special
Interrogatory Nos. 35-64, to provide further responses to requests for production of
documents (“RFPs”), to produce documents in response to RFPs, and for sanctions
against plaintiff and her attorneys. Plaintiff opposed the motion.

Defendants’ motion and request for sanctions are GRANTED.

Allegations
Plaintiff’s operative pleading alleges five causes of action against her former employer
and co-worker for: (1) breach of contract; (2) breach of covenant of good faith and fair
dealing; (3) hostile work environment [and] widespread sexual favoritism (Gov. Code §
12940(j)); (4) disparate treatment (Gov. Code § 12940(a)); and (5) unlawful termination
against public policy (Gov. Code § 12900 et seq.). (Compl. at 1-9.) Plaintiff alleges
that Defendants created a hostile work environment, widespread sexual favoritism,
disparate treatment, and unlawful termination against public policy for allegedly not
defending and indemnifying Plaintiff in relation to the underlying lawsuit of Day v.
Bryant, where she is alleged to have committed battery upon an individual named
Curtis Anthony Day. (Compl. ¶¶ 11, 25, 35-40, 45-49.) Plaintiff alleges that
Defendants defended and indemnified younger male co-workers when they were sued,
and that Plaintiff is aware of how Local 39 defended them because she was the
Director of the Public Employee Division of Local 39. (Compl. ¶¶ 10, 53-80.) Bryant
also claims she was terminated unlawfully by Defendants, and that Defendants
engaged in widespread sexual favoritism and disparate treatment against her on the
basis of her gender, race, and age. (Compl. ¶¶ 53-80.)

Discovery
Defendant Local 39 propounded RFPs, Set One, Nos. 1-37 and Special Interrogatory
Nos. 1-64 on December 30, 2013. Defendants also served a declaration of counsel
showing the need for additional special interrogatories. (Declaration of Alan Crowley
(“Crowley Decl.”) Exh. E.) Because the discovery was served by mail, Plaintiff’s
responses were due on or before February 3, 2014. (Crowley Decl. ¶ 7.) Plaintiff did
not contact Defendants’ counsel to request extensions or to meet and confer regarding
the discovery until after that deadline had passed. (Crowley Decl. ¶¶ 7-10.)

Special Interrogatory Nos. 35-64
Defendants contend that Plaintiff must provide responses to Special Interrogatory Nos.
35-64, without objections, given that Plaintiff waived any such objections to these extra
interrogatories by failing to timely raise them or timely seek a protective order, and
because Defendants’ attorney declaration supporting the additional interrogatories is
proper. (Def.’s Ps & As at 5 (citing Code of Civil Procedure §§ 2030.040 (declaration
of necessity for extra interrogatories), 2030.090(b)(2) (protective order may challenge declaration supporting extra interrogatories)).) Plaintiff contends that because this
case is not “complex” within the meaning of California Rule of Court 3.400, the extra
interrogatories are not warranted. (Pl.’s Ps & As at 6-7.) Plaintiff has not shown that a
case must fit the definition of a “complex” case under Rule 3.400 in order to satisfy the
requirements of Code of Civil Procedure § 2030.040(a), which permits additional
interrogatories where “[t]he complexity or the quantity of the existing and potential
issues in the particular case.” Defense counsel’s Declaration supporting the additional
interrogatories satisfies this requirement.

Plaintiff also argues that Special Interrogatory Nos. 35-64 were duplicative of the Form
Interrogatories — Employment Law and the Form Interrogatories — General, which
Defendant also propounded and which Plaintiff responded to. (Pl.’s Ps & As at 9-11.)
The argument is not well-taken, as Special Interrogatory Nos. 35-64 are specifically
tailored to Plaintiff’s pleading: they quote certain allegations verbatim and ask Plaintiff
to support the quoted allegations. Plaintiff has not shown that the Special
Interrogatories are merely “duplicative” of Form Interrogatories, that the Special
Interrogatories amount to harassment, or that her responses to the Form
Interrogatories “completely answered the information sought in Special Interrogatories
36-64.” (Pl.’s Ps & As at 10.)

Accordingly, Defendants’ motion is GRANTED in this regard, and Plaintiff shall serve
responses to Special Interrogatory Nos. 35-64, without objections, within 14 days of
entry of this order.

Untimely Objections to Special Interrogatories and RFPs
In general, failing to timely respond to special interrogatories waives objections to
those interrogatories. (Code Civ. Proc. § 2030.290(a).) In general, failing to timely
respond to an RFP waives objections to such RFP. (Code Civ. Proc. § 2031.300.)
Here, Plaintiff mail-served responses (with objections) to special interrogatories and
RFPs on February 10, 2014, several days late. (Crowley Decl. ¶¶ 9-10.)

Plaintiff admits that, while she mistakenly believed her responses to be due on
February 6, 2014, given that she received the requests on January 7, 2014, she
ultimately served responses on February 10, 2014 “a mere 3 days after she
reasonably believed they were due.” (Pl.’s Ps & As at 8.) Yet Code of Civil Procedure
§ 2031.030 states that the deadline for responses to RFPs are calculated from the
date of service, not the date of receipt. Moreover, while Plaintiff represents that her
“modem was down” and that this contributed to her delayed responses, Plaintiff does
not state that she contacted opposing counsel to timely request an extension.
Plaintiff’s counsel’s declaration references defense counsel’s alleged lack of
compassion regarding Plaintiff’s ability to compile documents given the “effects of the
brutal discovery of Plaintiff’s deceased grandson” (Declaration of Daniel M. Karalash
(“Karalash Decl.”) ¶ 14), but there is no indication that Plaintiff timely sought an
extension in which to respond to RFPs given her grandson’s untimely death, and no
mention of when such death occurred.

Accordingly, Defendants’ motion to compel is GRANTED in this regard. Plaintiff has
waived objections to these discovery requests, and shall provide responses thereto
without objections within 14 days of entry of this order.

Date Certain for Document Production
Plaintiff responded to certain RFPs by writing: “responding party will produce all such documents currently in her custody and control, if any. Discovery is continuing.” (Exh.
H to Crowley Decl.) Defendants challenge the sufficiency of such responses on
grounds that they do not specify whether documents would be produced by the “date
set for the inspection” in accordance with Code of Civil Procedure § 2031.210(a)(1).
Defendants argue that Plaintiff has refused to provide such a date during the meet and
confer process, and seek a date certain for such production.

Plaintiff argues that she “agreed to produce all of the documents currently under her
control; and she did.” (Pl.’s Ps & As at 12-13.) Plaintiff argues that “there is no
statutory provision that mandates that a party give a specific date on which she will
produce” requested documents. (Id.) However, Defendants identified Code of Civil
Procedure § 2031.210(a)(1), which requires the responding party to provide a
“statement” that he or she “will comply with the particular demand for inspection . . . by
the date set for the inspection,” which in this case was February 3, 2014. (Code Civ.
Proc. § 20310.210(a) (emphasis added).)

Accordingly, Defendants’ motion is GRANTED in this regard; and Plaintiff shall meet
and confer with Defendants to select a mutually-agreeable date certain for Plaintiff to
produce responsive documents currently in her possession, custody, or control.

Sorting/Labeling of Produced Documents
Defendants challenge Plaintiff’s 70-page document production on grounds that the
produced documents were not “sorted and labeled to correspond with the categories in
the document demand” under Code of Civil Procedure § 2031.280(a), such that it is
impossible to tell which documents are responsive to which requests. (Exh. H to
Crowley Decl.) While Plaintiff argues that she only produced 70 pages and that they
were all “Bates stamped for ease of identification,” whether Plaintiff’s production
complied with Code of Civil Procedure § 2031.280(a) does not turn upon the number
of pages she produced.

Accordingly, within 14 days of entry of this order, Plaintiff shall re-produce the
responsive documents in compliance with Code of Civil Procedure § 2031.280(a),
such that the pages are either “produced as they are kept in the usual course of
business, or [are] organized and labeled to correspond with the categories in the
demand.”

Inability to Comply Pursuant to Code Civ. Proc. § 2031.230
Defendants challenge the sufficiency of Plaintiff’s response to RFP No. 37, i.e., that
“no documents exist at this time. Discovery is continuing.” (Exh. H to Crowley Decl.)
Defendants argue that such response does not indicate whether a diligent search has
been made to locate responsive documents and to specify a reason why Plaintiff
cannot comply with the discovery request. (Code Civ. Proc. § 2031.230.) Defendants
specifically seek an amended response to RFP No. 37. (Def.’s Ps & As at 8-9.)

Code of Civil Procedure § 2031.230 provides: “A representation of inability to comply
with the particular demand for inspection, copying, testing, or sampling shall affirm that
a diligent search and a reasonable inquiry has been made in an effort to comply with
that demand. This statement shall also specify whether the inability to comply is
because the particular item or category has never existed, has been destroyed, has
been lost, misplaced, or stolen, or has never been, or is no longer, in the possession,
custody, or control of the responding party. The statement shall set forth the name and
address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” Here, Plaintiff’s
response to RFP No. 37 does not comply with this section, and Defendants’ motion is
GRANTED in this regard. Plaintiff shall provide a further response to RFP No. 37
within 14 days of entry of this order.

Defendants argue that Plaintiff must produce documents responsive to RFP No. 1
even though such documents may be publicly available, because Plaintiff waived that
objection by failing to timely raise it. (Def.’s Ps & As at 7-8.) In response, Plaintiff
argues that she need not produce documents responsive to RFP No. 1 because such
documents relate to the underlying Day v. Bryant litigation and are “public” documents
that are “readily available to” Local 39. (Pl.’s Ps & As at 11.) Any party may obtain
discovery of information in “the possession, custody, or control of any other
party.” (Code Civ. Proc. § 2031.0109(a).) However, a party need not produce
“information recorded in public documents . . . [that] is as readily available to the
defendants as it is to the plaintiffs, [because] no perceivable purpose consonant with
the discovery laws is served by compelling one party to search public records, compile
the results and furnish them to his opponent.” (Alpine Mut. Water Co. v. Superior
Court of Ventura County (1968) 259 Cal.App.2d 45, 54.)

As described above, the Court finds that Plaintiff waived objections by her untimely
discovery responses. Moreover, even if she had not waived the objection, Plaintiff has
not argued the threshold issue, namely, that she does not have responsive documents
in her possession, custody, or control. Similarly, Plaintiff has not argued that it would
be particularly burdensome for her to produce the responsive documents in her
possession. Accordingly, even if she had not waived the objection, the Court is not
persuaded by Plaintiff’s argument that she need not produce requested documents
because they are “equally available” to Defendants.

Accordingly, Defendants’ motion is GRANTED in this regard, and if Plaintiff has
documents responsive to RFP No. 1 in her possession, custody or control, she must
produce them within 14 days of entry of this order.

Sanctions
Code of Civil Procedure § 2030.300(d) provides, “The 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.” Similarly, as to RFPs, “the 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 further
response to a demand, 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(h).) The court may also impose sanctions for the
failure to meet and confer in good faith or otherwise misuse the discovery process. (
See Code Civ. Proc. §§ 2023.010-2023.030.)

The Court grants Defendants’ motion to compel in its entirety, and the Court does not
find that Plaintiff was substantially justified in opposing the motion. Accordingly,
Defendants’ request for sanctions in the amount of $5,787 (Crowley Decl. ¶ 24) is
GRANTED. Plaintiff and/or her counsel shall pay such sanctions within 14 days of
entry of this order. As Plaintiff accurately notes (Pl.’s Ps & As at 5-6), Defendants’ notice of hearing does
not provide notice of the Court’s tentative ruling system, as required by California Rule
of Court 3.1308 and Local Rule 1.06(D). While moving party filed an amended notice
along with its reply brief, in an abundance of caution, moving party is nevertheless also
directed to contact non-moving party forthwith and advise of Local Rule 1.06(D) and
the Court’s tentative ruling procedure. If moving party is unable to contact non-moving
party prior to hearing, moving party shall be available at the hearing, in person or by
telephone, in the event non-moving party appears without following the procedures set
forth in Local Rule 1.06(B). The Court is not persuaded by Plaintiff’s argument (Pl.’s
Ps & As at 5-6) that Defendants’ motion should be denied in its entirety given
Defendants’ failure to include the language required by Local Rule 1.06(D) in the
notice of motion.

This minute order is effective immediately. No formal order or other notice is required.
(Code Civ. Proc. § 1019.5; California Rule of Court 3.1312.)