Case Name: Seyed Javadi v. West Valley Precision, Inc., et al.

Case No.: 18CV327068

(1) Second Motion to Compel Further Responses to Plaintiff’s Requests for Production of Documents, Set One
(2) Motion to Compel Depositions and for Sanctions

Factual and Procedural Background

This is a wrongful termination case. On November 8, 2017, defendant West Valley Precision, Inc. (“WVP”) hired plaintiff Seyed Javadi (“Plaintiff”) as its Quality Manager. (Complaint at ¶ 8.) WVP agreed to pay Plaintiff an annual compensation of $160,000 along with bonuses tied to growth and benefits. (Id. at ¶¶ 8-9.) Plaintiff commenced his employment on November 9, 2017. (Id. at ¶ 11.)

During his employment, Plaintiff protested and opposed unsafe and unhealthy working conditions, which he advocated to be eliminated. (Complaint at ¶ 11.) These conditions included but were not limited to the following:

• Plumes of non-ventilated gas and smoke within the factory part of the machine shop, improper ventilation, broken fans, use of machines beyond their intended limit, and metal nano-particles in the air. Several employees wore gas masks as the air quality was so bad.
• A deafeningly loud noise level.
• Use of a “dry cutting” method of cutting metal, which is inferior, unsafe and not suitable to cut heavy duty machinery. This produces unsafe amounts of particulate matter and heat, and could cause flying shards of metal to injure workers.
• Lack of proper safety equipment.

(Ibid.)

When Plaintiff questioned these unsafe practices, he was told by management that there was no choice. (Complaint at ¶ 12.) Thereafter, Plaintiff was terminated from his employment for protesting unsafe and unhealthy working conditions and protesting defendants’ violations of wage and hour laws. (Id. at ¶¶ 19, 22, 23.)

On April 24, 2018, Plaintiff filed the operative Complaint against defendants alleging causes of action for: (1) wrongful termination in violation of public policy; (2) retaliation in violation Labor Code § 1102.5; (3) retaliation in violation of Labor Code § 6310; (4) unpaid wages; (5) accrual of waiting time penalties pursuant to Labor Code § 203; (6) fraud; (7) negligent misrepresentation; and (8) defamation.

On July 27, 2018, defendants WVP, Kevin Krueger (“Krueger”), and Dane Madsen (“Madsen”) filed a demurrer and motion to strike Plaintiff’s complaint.

On September 28, 2018, the court overruled defendants’ demurrer and denied defendants’ motion to strike.

On October 17, 2018, defendants WVP, Krueger, and Madsen filed an answer to Plaintiff’s complaint.

I. Plaintiff’s second motion to compel defendant WVP’s further responses to Plaintiff’s requests for production of documents, set one is GRANTED.

A. Request for judicial notice.

In opposition to the motion to compel, defendant WVP requests judicial notice of various declarations filed in this action by the defendants and a purported cross-complaint. Evidence Code section 452, subdivision (d) states that the court may take judicial notice of “[r]ecords of any court of this state.” This section of the statute has been interpreted to mean that the trial court may take judicial notice of the existence of the court’s own records. Evidence Code section 452 and 453 permit the trial court to “take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached—in the documents such as orders, statements of decision, and judgments—but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.” (People v. Woodell (1998) 17 Cal.4th 448, 455.)

Here, however, defendant WVP requests judicial notice of the declarations for the truth of matters asserted therein. Defendant WVP also requests judicial notice of a purported cross-complaint. However, the court record does not reflect the filing of a cross-complaint in this action. The purported cross-complaint is not a court record of which this court may take judicial notice. Moreover, nothing contained in the documents is necessary or relevant to the court’s ruling on the motion to compel. (See Duarte v. Pacific Specialty Insurance Company (2017) 13 Cal.App.5th 45, 51, fn. 6—denying request where judicial notice is not necessary, helpful or relevant.)

Accordingly, the request for judicial notice by defendants and cross-complainant in opposition to Plaintiff’s motion to compel further written responses to Plaintiff’s document request (set one) is DENIED.

B. Discovery dispute.

On June 25, 2018, Plaintiff propounded, upon defendant WVP, a request for production of documents (“RPD”), set one.

On July 30, 2018, defendant WVP served a response to Plaintiff’s RPD, asserting objections only.

On August 30, 2018, Plaintiff filed a motion to compel defendant WVP’s further response to Plaintiff’s RPD. On December 6, 2018, the court denied Plaintiff’s motion to compel as moot following defendant WVP’s supplemental responses of November 13, 2018 but awarded sanctions against defendant WVP in the amount of $1,640.

Between December 7 – 21, 2018, Plaintiff’s counsel sent meet and confer correspondence to defendant WVP’s counsel asserting deficiencies with defendant WVP’s supplemental responses. Defendant WVP’s counsel responded on December 21, 2018 indicating the production of documents is complete.

On January 2, 2019, Plaintiff filed the instant motion to compel defendant WVP’s further response to Plaintiff’s RPD, set one.

C. Merits.

Upon receipt of a response to a demand for inspection, including requests for the production of documents, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply:

1. A statement of compliance with the demand is incomplete.
2. A representation of inability to comply is inadequate, incomplete, or evasive.
3. An objection in the response is without merit or too general.

(Code Civ. Proc., §2031.310, subd. (a)(1) – (3).)

The motion for order compelling further responses “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” (Code Civ. Proc., §2031.310, subd. (b)(1); Kirkland v. Sup. Ct. (2002) 95 Cal.App.4th 92, 98 (Kirkland).) To establish “good cause,” the burden is on the moving party to show both relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case) and specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). (Glenfed Develop. Corp. v. Sup. Ct. (1997) 53 Cal.4th 1113, 1117.) Where the moving party establishes “good cause,” the burden shifts to the responding party to justify its objections. (Kirkland, supra, 95 Cal.App.4th at p. 98.)

Defendant WVP, in opposition, did not provide a separate statement and argues, in conclusory fashion, that Plaintiff has not demonstrated good cause. However, in reviewing the Plaintiff’s separate statement filed in support of this motion to compel, the court finds good cause to justify the discovery sought by the inspection demands.

Defendant WVP’s supplemental response to each of the RPD states: “To the extent that the requested document(s) exist and relate to Seyed Javadi, responding party hereby produced all responsive documents that responding party has that relate to propounding party.” Plaintiff contends this response does not comply with Code of Civil Procedure section 2031.210, subdivision (a) which states:

The party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following:
(1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities.
(2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item.
(3) An objection to the particular demand for inspection, copying, testing, or sampling.

Plaintiff further contends defendant WVP’s response does not comply with Code of Civil Procedure section 2031.220 which states, “A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.”

Plaintiff also contends defendant WVP’s response does not comply with Code of Civil Procedure section 2031.230 which states, “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.”

The court agrees with Plaintiff. Defendant WVP’s supplemental responses do not comply with the above-referenced sections of the Code of Civil Procedure. Where responsive documents exist, a proper response would be, for example, “Responding party will comply with this demand. The production, inspection, and copying will be allowed in whole and all documents in the demanded category that are in the possession, custody, or control of responding party and to which no objection is being made will be included in the production.” Where no responsive documents exist, a proper response would be, “Responding party is unable to comply with this demand. A diligent search and a reasonable inquiry has been made in an effort to comply with this demand. Responding party is unable to comply because the particular item or category is no longer in the possession, custody, or control of the responding party. John Smith, 123 Main Street, San Jose, CA 95113 is the individual believed by responding party to have possession, custody, or control of documents responsive to this demand.”

The above-referenced sections of the Code of Civil Procedure are very specific about the form of response and defendant WVP’s supplemental responses do not conform. Defendant WVP argues, in opposition, that it has produced all responsive documents in its possession. Had defendant WVP responded in conformity with the above-referenced sections of the Code of Civil Procedure, the propounding party (and this court) would be better positioned to reach the same conclusion. In looking at the supplemental responses as presently phrased, the propounding party (and this court) is left to surmise.

On the issue of sanctions, Code of Civil Procedure section 2031.310, subdivision (h) mandates an award of monetary sanctions “against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further responses 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 of Civil Procedure section 2031.060, subdivision (h) states, “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 for a protective order, 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.”

Plaintiff’s counsel declares she spent 8 hours in connection with this motion to compel at the billing rate of $395 per hour and Plaintiff incurred a $60 filing fee. Plaintiff is entitled to an award of monetary sanctions against defendant WVP. The court finds defendant WVP acted without substantial justification in view of the clear requirements for responding to RPD as set forth in the Code of Civil Procedure. Plaintiff’s request for monetary sanctions is GRANTED in the amount of $3,220. Defendant WVP shall pay $3,220 to Plaintiff within 20 days of the date of the filing of this order.

Defendant WVP’s request for monetary sanctions is DENIED.

II. Defendant WVP’s motion to compel depositions and for sanctions is DENIED.

A. Discovery dispute.

On December 11, 2018, defendant WVP served Plaintiff with an Amended Notice of Taking Deposition and Document Request for a deposition to occur on December 26, 2018. Also on December 11, 2018, defendant WVP served nonparty Cameron Javadi with a Notice of Taking Deposition and Document Request and Deposition Subpoena for a deposition to occur on December 27, 2018.

On December 17, 2018, Plaintiff and Cameron Javadi served objections to defendant WVP’s notices of taking deposition/ deposition subpoena. Among the objections, Plaintiff and Cameron Javadi stated their and their counsel’s unavailability for the scheduled dates.

According to defendant WVP’s counsel, Plaintiff’s counsel did not attempt to arrange another date, either before objecting or thereafter. Between December 13 – 21, 2018, defendant WVP’s counsel sent four letters attempting to meet and confer with Plaintiff’s counsel.

In opposition, Plaintiff’s counsel disputes the assertion that she did not meet and confer. Plaintiff’s counsel declares she attempted to meet and confer with defendants’ counsel at least eight times between December 13, 2018 and April 10, 2019.

On January 7, 2019, defendant WVP filed the instant motion to compel the depositions of Plaintiff and non-party Cameron Javadi.

B. Merits.

“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” (Code Civ. Proc., §2025.450, subd. (a).)

“The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., §2025.450, subd. (b)(1).)

“A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., §2016.040.) A reasonable and good faith attempt at informal resolution requires that the parties present the merits of their respective positions with candor, specificity, and support. (Townsend v. Super. Ct. (1998) 61 Cal.App.4th 1431, 1435, 1439.) The level of effort at informal resolution which satisfies the “reasonable and good faith attempt” standard depends upon the circumstances of the case. (Obregon v. Super. Ct. (1998) 67 Cal.App.4th 424, 431.)

In reviewing the meet and confer correspondence between counsel, the court finds defendant WVP has not met and conferred, reasonably or in good faith, or adequately contacted the deponent to inquire about nonappearance. The overwhelming evidence before the court is that Plaintiff and non-party Cameron Javadi, through counsel, have stated their willingness to appear for deposition. By defendant’s own acknowledgment, Plaintiff and non-party Cameron Javadi’s unavailability on the scheduled dates is easily remedied with a promise to appear on some other date. The evidence before the court shows defendants’ counsel did not respond to Plaintiff’s counsel’s offers to schedule different dates.

Accordingly, defendant WVP’s motion to compel depositions and for sanctions is DENIED without prejudice due to defendant’s failure to meet and confer, reasonably and in good faith. The parties are ordered to meet and confer on a mutually convenient date for the depositions of Plaintiff and non-party Cameron Javadi.

Plaintiff’s request for sanctions is DENIED. The court will instead remind defendants’ counsel of the standing order re Santa Clara County Bar Association Code of Professionalism: “Good cause appearing, upon consideration by and with the approval of the Judges of the Santa Clara Superior Court, it is hereby ORDERED that the Code of Professionalism adopted by the Santa Clara County Bar Association in June 1992 and revised in October 2015 will serve as a guide to the Judges of the Santa Clara Superior Court in the exercise of their individual discretion when adjudicating disputes among attorneys. While the Code does not have the force of law or regulation with respect to the conduct of attorneys, it reflects the view of the members of the Santa Clara County Bar Association regarding appropriate attorney behavior. As such it is helpful in giving judges guidance about the expectations of attorneys concerning acceptable behavior. (Cf. Kloepfer v. Commission on Judicial Performance (1989) 49 Cal.3d 826, 838, fn. 6.)” Section 8 of the Santa Clara County Bar Association Code of Professionalism states: “A lawyer should at all times be civil, courteous, and accurate in communicating with adversaries, whether in writing or orally.” Section 9 of the Santa Clara County Bar Association Code of Professionalism states, in relevant part: “A lawyer should engage in a meaningful and good faith effort to resolve discovery disputes and should only bring discovery issues to the court for resolution after these efforts have been unsuccessful.”