Case Number: BC690702 Hearing Date: October 29, 2019 Dept: 26

Superior Court of California
County of Los Angeles
Department 26

NICOLAS TOLENTINO CORONA,

Plaintiff,

v.

DIAMOND DR 16, INC., et al.,

Defendants.

Case No.: BC690702

Hearing Date: October 29, 2019

[TENTATIVE] order RE:

DEFENDANT DIAMOND DR 16, INC.’S motion to COMPEL FURTHER RESPONSE from PLAINTIFF TO SPECIAL INTERROGATORIES Nos. 5, 6, 7, and 14

BACKGROUND

This action arises from Plaintiff Nicolas Tolentino Corona’s (“Plaintiff”) employment as a security guard with Defendants Diamond Dr 16, Inc. (“Defendant”), Emil Mahgerefteh, Nasser Mahgerefteh, and Sam Mahgerefteh. Specifically, Plaintiff alleges wage and hour violations under the Labor Code and retaliation.

In the operative complaint, Plaintiff asserts 10 causes of action:[1] (1) failure to pay minimum wages; (2) failure to pay overtime wages; (3) failure to provide mandated meal breaks; (4) failure to provide mandated rest breaks; (5) failure to provide complete and accurate earnings statements; (6) failure to timely pay wages after termination; (7) violation of Business and Professions Code section 17200 et seq.; (8) failure to produce payroll records; (9) failure to produce personnel records; and (10) retaliation.

Plaintiff does not allege claims for disability discrimination, violation of medical leave, or personal injuries. Additionally, Plaintiff does not pray for personal injuries or emotional damages.

On October 16, 2018, Plaintiff testified at his deposition. (Stewart Decl. ¶ 12.) At that deposition, Defendant sought testimony concerning Plaintiff’s medical information. (Separate Statement.) Specifically, Plaintiff testified that he went to a doctor and dentist occasionally while employed by Defendant and that these visits occurred either before or after his regular work shift from 9:30 a.m. to 7:30 p.m. during the germane employment period. (Ibid.) Plaintiff’s counsel directed Plaintiff not to testify concerning the names of the doctors and dentists whom Plaintiff saw. (Ibid.)

On December 6, 2018, Defendant served Special Interrogatories, Set One (“SROG”) on Plaintiff. (Stewart Decl. Ex. 1.).

On January 23, 2019, Plaintiff served his responses to Defendant’s SROG. (Stewart Decl. ¶ 4.)

On March 12, 2019, Plaintiff served his amended responses to Defendant’s SROG. (Id. ¶ 6.)

On May 3, 2019, Defendant filed this motion to compel a further response to SROG Nos. 5, 6, 7, and 14 seeking the names of health care professionals Plaintiff saw while employed (No. 5), the dates of these visits (No. 6.), the dates of any visits that occurred on his work days (No. 7), and any witnesses that support Plaintiff’s contention that he was paid in cash for his employment (No. 14.). Defendant also seeks monetary sanctions in the amount of $7,446.75 against Plaintiff and/or his counsel.

On October 16, 2019, Plaintiff opposed. Plaintiff argues that the subject interrogatories seek information that invade Plaintiff’s right to medical privacy (Nos. 5-7) or that his response was sufficient (No. 14). Plaintiff also seeks monetary sanctions in the amount of $4,500 against Defendant and/or its counsel.

On October 21, 2019, Defendant filed its reply.

TIMELINESS

A party making a motion to compel further responses must do so within 45 days of service of the verified response unless the parties agreed in writing to a later date. (Code Civ. Proc., § 2030.300, subd. (c).)

Here, Defendant filed its motion on May 3, 2019, which is more than 45 days after Plaintiff served his supplemental responses on March 12, 2019. The parties had a written agreement allowing Defendant to file this motion on or before May 4, 2019. (Stewart Decl. Ex. 7-8.) Thus, Defendant’s motion is timely.

MEET AND CONFER

A party making a motion to compel further responses must include a declaration stating facts showing a “reasonable and good faith attempt” to resolve informally the issues presented by the motion before filing the motion. (Code Civ. Proc., § 2030.300, subd. (b)(1).)

Defendant’s counsel filed a declaration detailing the meet and confer efforts. That declaration indicates counsel communicated via multiple letters. (Stewart Decl. ¶¶ 5-10.) Accordingly, that declaration is sufficient to show Defendant tried to resolve the discovery dispute in good faith before filing this motion.

SEPARATE STATEMENT

A party making a motion to compel further responses must also include a separate statement that provides all the information necessary to understand each discovery request and all the responses to it that are at issue. (Cal. Rules of Court, rule 3.1345(a), (c).)

Defendant filed a separate statement that satisfies this requirement.

LEGAL STANDARD

Under Code of Civil Procedure section 2030.300, subdivision (a), a court may order a party to serve a further response when the court finds 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.”

If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure fully to answer the interrogatories. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255 (Fairmont).)

DISCUSSION

For the purposes of this discussion, the Court separates the subject interrogatories into two separate categories: (1) those seeking medical information (SROG Nos. 5, 6, 7); and (2) those seeking information about witnesses (SROG No. 14).

SROG Nos. 5, 6, and 7

SROG Nos. 5, 6, and 7 seek the names of health care professionals Plaintiff saw while employed by Defendant (No. 5), the dates of these visits (No. 6), and the dates of any visits that occurred on his work days (No. 7).

First, Plaintiff argues that the sought discovery is not relevant or reasonably calculated to lead to the discovery of admissible evidence.

Code of Civil Procedure section 2017.010 states that the permissible scope of discovery depends on three factors of whether the information is: (1) “relevant to the subject matter involved;” (2) admissible or “appears reasonably calculated to lead to the discovery of admissible evidence;” and (3) privileged.

Courts should construe discovery statutes liberally in favor of discovery. (Williams v. Superior Court (2017) 3 Cal.5th 531, 540-541.)

“Relevancy to the subject matter has been construed to be broader than relevancy to issues . . . .” (Bridgestone/Firestone, Inc. v. Superior Court (1992) 7 Cal.App.4th 1384, 1391.) For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement.” (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.)

Here, Plaintiff does not plead causes of action for disability discrimination, violation of medical leave, or personal injuries. Additionally, Plaintiff does not pray for personal injuries or emotional damages. However, Plaintiff’s decision not to plead these claims or pray for emotional damages does not preclude discovery of information concerning Plaintiff’s medical treatment. Instead, the Court must examine the specific sought discovery as it relates to Plaintiff’s case and more specifically to Defendant’s defense.

As an initial matter, the Court notes that the subject interrogatories are limited and narrowly tailored to the germane employment period of approximately three years when Defendant’s alleged violations occurred. Therefore, the scope is not facially overbroad. Additionally, the subject interrogatories do not seek any specific information concerning Plaintiff’s treatment. They only seek information about the names of the medical professionals, the contact information of those people, and the dates of any visits. They do not seek any medical records or information contained within the records.

Therefore, the information sought is relevant to the subject matter, which involves Plaintiff’s time working and presence at work. Additionally, it is relevant as it relates to Defendant’s defenses as noted below.

The purposes of these interrogatories is to obtain information to verify Plaintiff’s credibility, considering his alleged incredible testimony that he received medical treatment after 7:30 p.m. or before 9 a.m. multiple times. This information appears reasonably calculated to lead to admissible evidence for two reasons: (1) if Plaintiff did visit a medical professional during work hours, then Defendant’s damages exposure is reduced because Plaintiff is not entitled to pay for hours that he did not work; and (2) if the information proves that Plaintiff lied about his visits, Defendant can use that information to impeach Plaintiff’s credibility, which is generally admissible at trial with minimal exceptions, and that assessment is made not at this stage but at trial. Therefore, this information is admissible or reasonably calculated to lead to admissible evidence as it supports Defendant’s defenses as to damages (reason 1) or Plaintiff’s entire case including liability (reason 2).

Plaintiff’s other arguments do not otherwise satisfy his burden to justify an objection based on relevance or admissibility. (Fairmont, supra, 22 Cal.4th at p. 255.)

Next, Plaintiff argues that the sought discovery invades Plaintiff’s constitutional right for privacy.

Even highly relevant, nonprivileged information may be shielded from discovery if its disclosure would impair a person’s “inalienable right of privacy” provided by California Constitution Article 1, section 1. (Britt v. Superior Court (1978) 20 Cal.3d 844, 855-856.) The burden is on “the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion,” and then the court must “weigh the countervailing interests the opposing party identifies.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 557.)

As a preliminary matter, the Court again notes that the subject interrogatories are limited and narrowly tailored. None of the subject interrogatories seek the production or identification of any medical records. They seek information concerning the names of treating medical professionals and dates of treatment. They do not seek information about the specific treatment received on any identified dates, other than what can be deduced from the specialty of the treating medical professional. Therefore, the nature of the “extent and the seriousness of the prospective invasion” is less than the discovery of Plaintiff’s medical records.

The nature of these records is essential to determine the truth of Plaintiff’s testimony concerning his medical treatment. Defendant has no other way to obtain this information to verify Plaintiff’s credibility.

When weighing the interests of Defendant’s material need for this information against Plaintiff’s privacy interests, the Court finds the balancing of interests goes to Defendant’s favor, especially considering the limited nature of the subject interrogatories.

Therefore, the Court grants Defendant’s motion as to these interrogatories.

SROG No. 14

SROG No. 14 seeks information about any witnesses that support Plaintiff’s contention that he was paid in cash for his employment (No. 14).

Plaintiff argues that his response was sufficient.

As a preliminary matter, it is unclear how Plaintiff responded to this interrogatory. Defendant claims that Plaintiff objected without providing a response. (Separate Statement.) Plaintiff argues that he responded: “Normally, I would receive cash on Sundays, and sometimes when my employer would not pay me on Sunday, I would receive cash on Mondays.” (Opposition 8:21-22.)

However, assuming Plaintiff’s response is what he claims, that response is insufficient. The interrogatory asks for identification of witnesses who saw him get paid in cash. Plaintiff does not identify any witnesses or otherwise state that none exist.

Therefore, the Court grants Defendant’s motion as to this interrogatory.

MONETARY SANCTIONS

Defendant also seeks monetary sanctions in the amount of $7,446.75 against Plaintiff and/or his counsel.

Code of Civil Procedure section 2023.030, subdivision (a) provides that a court may impose a monetary sanction for misuse of the discovery process unless a court finds that the one subject to sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. Code of Civil Procedure section 2023.010, subdivisions (e) and (f) provide that misuse of the discovery process includes making an unmeritorious objection to discovery and making an evasive response to discovery.

Code of Civil Procedure § 2030.300(d) provides that the court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories unless the Court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

First, the Court rejects Plaintiff’s argument that Defendant’s request for sanctions is defective.

“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. . . .” (Code Civ. Proc. § 2023.040.)

Here, Defendant requested monetary sanctions against “Defendant [sic] Corona and/or its [sic] attorney of record.” (Motion 2:4-5.) There is no requirement for Defendant to identify the name of the party’s attorney, especially when considering there is no confusion here when the same firm has represented Plaintiff throughout this action. Plaintiff’s reliance on Blumenthal v. Superior Court (1980) 103 Cal.App.3d 317, 320 does not support his position that the notice of motion must identify counsel personally. In Blumenthal, the Court of Appeal denied monetary sanctions because “counsel had no reason to suspect sanctions would be awarded against him individually” since the moving papers sought sanctions only against the counsel’s clients.

The Court finds Plaintiff’s objections a misuse of the discovery process.

However, the Court finds that the amount requested — $7,446.75 – is unreasonable. Defendant does not provide any supporting authority justifying sanctions for the 12.70 hours trying to resolve the discovery dispute informally. (Stewart Decl. ¶ 15.) The amount of time spent preparing the motion (4.4 hours) and appearance time (4.0 hours) is unreasonable. (Id. ¶¶ 16-17.) The Court finds that the amount of $1,400 reasonably compensates Defendant for attorney fees (4 hours at a rate of $350 per hour) incurred for preparation and filing of the instant motion and appearance at the hearing. The Court also awards $61.75 in filing fees. The Court awards monetary sanctions against Plaintiff Nicolas Tolentino Corona and his counsel E&L, LLP jointly and severally to be paid in the amount of $1,461.75 to Defendant by and through counsel, within thirty (30) days of notice of this order.

Plaintiff also seeks monetary sanctions in the amount of $4,500 against Defendant and/or its counsel. The Court denies this request against Defendant because the Court grants Defendant’s motion, and Defendant has prevailed in bringing this motion.

CONCLUSION AND ORDER

The Court grants Defendant’s motion to compel further responses to SROG. Plaintiff is ordered to serve a code-compliant further response to Defendant’s SROG Nos. 5, 6, 7, and 14, without objection, within 20 days of notice of this order.

//

//

//

//

//

Defendant’s request for sanctions is granted. Plaintiff Nicolas Tolentino Corona and his counsel E&L, LLP are ordered to pay jointly and severally sanctions in the amount of $1,461.75 to Defendant by and through counsel, within thirty (30) days of notice of this order.

The Court orders Defendant to provide notice of this order and file proof of service.

DATED: October 29, 2019 ___________________________

Elaine Lu

Judge of the Superior Court

[1] The Court notes that the causes of action identified in the caption do not all correspond with the causes of actions as pleaded.