Case Name: Shailendra Singh v. Inter-Con Security Systems, Inc., et al.
Case No.: 17-CV-313202

This is an action under the Private Attorneys General Act (“PAGA”). Before the Court are (1) defendant Inter-Con Security Systems, Inc.’s motion for a protective order staying and/or limiting discovery; (2) plaintiff Shailendra Singh’s motion to compel further responses to special interrogatories; and (3) plaintiff’s motion to compel further responses to requests for production of documents. All three motions are opposed.

I. Allegations of the Operative Complaint

From March 3, 2015 to May 19, 2017, plaintiff worked for defendant as a security guard/officer. (Second Amended Complaint, ¶ 6.) During his employment, plaintiff was paid on an hourly basis as a non-exempt employee. (Ibid.) Plaintiff alleges that Inter-Con failed to pay security guards/officers on a weekly basis as required by Labor Code section 201.3. (Id. at ¶ 16.) Based on these allegations, plaintiff asserts a single cause of action under PAGA.

II. Discovery Dispute and Relevant Procedural History

On November 6, 2017, plaintiff served first sets of special interrogatories (the “SI”s) and requests for production of documents (the “RPD”s). Defendant served responses on December 5. Plaintiff raised asserted deficiencies with Inter-Con’s responses, and the parties met and conferred regarding their disputes, including during an informal discovery conference (“IDC”) with the Court on February 20, 2018.

In its IDC brief, defendant indicated that it would seek a stay of discovery pending the resolution of its forthcoming summary judgment motion based on “the legal interpretation of ‘temporary services employer’ and the 90-day employment exception under Labor Code section 201.3.” Inter-Con also argued that discovery should be limited to information concerning security guards who, like plaintiff, worked for its client California Highway Patrol. The parties were unable to resolve their dispute at the IDC.

On March 15, 2018, plaintiff filed the instant motions to compel further discovery responses. The same day, Inter-Con moved for a protective order. The parties have fully briefed these motions. Plaintiff also filed a notice of new authority addressing the 90-day employment exception under Labor Code section 201.3, Huff v. Securitas Security Services USA, Inc. (2018) 23 Cal.App.5th 745.

On June 12, 2018, defendant filed a motion for summary judgment on the two grounds it raised in its IDC brief: first, that plaintiff worked at the same location for over 90 days, triggering an exception to Labor Code section 201.3, and second, that Inter-Con is not a “temporary services employer” under that section. Plaintiff responded with an ex parte application for an order denying the summary judgment motion, or, alternatively, continuing the hearing on the motion to permit plaintiff to obtain discovery with which to oppose it. On July 30, the Court issued an order continuing the summary judgment motion to October 19, 2018 and noting that the motion “is subject to being further continued depending on the outcome of Plaintiff’s motions to compel and the timing of the discovery Plaintiff seeks to oppose Defendant’s Motion for Summary Judgment.”

III. Inter-Con’s Motion for a Protective Order

Inter-Con moves for a protective order staying discovery pending the resolution of its summary judgment motion or limiting discovery to the issue of plaintiff’s standing until the motion is resolved. Plaintiff opposes Inter-Con’s motion and requests monetary sanctions.

A. Legal Standard

In response to receiving interrogatories or requests for the production of documents, the responding party may file a motion for a protective order. (Code Civ. Proc., §§ 2030.090, subd. (a), 2031.060, subd. (a).) For good cause shown, the court “may make any order that justice requires to protect [the moving party] from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., §§ 2030.090, subd. (b), 2031.060, subd. (b).) “If the motion for a protective order is denied in whole or in part, the court may order that the party provide or permit the discovery against which protection was sought on terms and conditions that are just.” (Code Civ. Proc., §§ 2030.090, subd. (c), 2031.060, subd. (g).) “[T]he burden is on the party seeking the protective order to show good cause for whatever order is sought.” (Fairmont Ins. Co. v. Superior Court (Stendell) (2000) 22 Cal.4th 245, 255.)

B. Analysis

Defendant contends that there is good cause for a protective order to alleviate the burden and expense of discovery in this representative action while its motion for summary judgment is resolved. (See Terminals Equipment Co. v. City and County of San Francisco (1990) 221 Cal.App.3d 234, 247 [trial court stayed discovery while it resolved demurrer and continued the stay where the complaint failed to state a claim; appellate court affirmed, holding that “[u]nless and until appellants filed a viable complaint stating at least one triable cause of action, further discovery … would only be an unnecessary and burdensome additional expense to respondent”]; Pacific Architects Collaborative v. State of California (1979) 100 Cal.App.3d 110, 126-127 [trial court appropriately stayed irrelevant discovery until summary judgment motion was resolved].) It further urges that plaintiff has no standing to bring this action because his assignment was for over 90 days and he consequently was not entitled to weekly pay under Labor Code section 201.3. Analogizing to the class action context, defendant argues that it would be improper for a plaintiff who never had standing to bring an action to obtain discovery for the purpose of identifying a suitable representative plaintiff. (See First American Title Ins. Co. v. Superior Court (Sjobring) (2007) 146 Cal.App.4th 1564, 1577 (“First American”) [“We cannot permit attorneys to make an ‘end-run’ around Proposition 64 by filing class actions in the name of private individuals who are not members of the classes they seek to represent and then using precertification discovery to obtain more appropriate plaintiffs.”].)

As with claims arising in the class action context, “PAGA imposes a standing requirement; … [T]he way to raise lack of standing is to plead it as an affirmative defense, and thereafter to bring a motion for summary adjudication or summary judgment….” (Williams v. Superior Court (Marshall’s of CA, LLC) (2017) 3 Cal.5th 531, 558-559 (“Williams”).) Defendant has employed the appropriate procedure to challenge plaintiff’s standing here. While the Court is not aware of any case addressing the proper scope of discovery in a PAGA action where the plaintiff’s standing is challenged, the concerns articulated in First American apply in this context. The PAGA standing requirement is different from the Proposition 64 requirements, but in both contexts, requirements were imposed to avoid allowing individuals who were not impacted by the conduct at issue to serve as a plaintiff. (See Huff v. Securitas Security Services USA, Inc. (2018) 23 Cal.App.5th 745, 754 [an “aggrieved employee” under PAGA is one “against whom one or more of the alleged violations was committed”].)

The Court accordingly finds it appropriate to delay the discovery of class contact information in this case until defendant’s summary judgment motion is resolved. It also finds it appropriate to stay any other discovery unrelated to the resolution of the summary judgment motion. Williams, which rejected the imposition of a requirement that a PAGA plaintiff make an initial showing supporting the merits of his or her claim to obtain employee contact information, does not prevent this outcome. (See Williams, supra, 3 Cal.5th at p.551 [noting that the defendant in that case did not bring a motion for a protective order to alter the sequencing of discovery].) However, as the Court has previously emphasized, plaintiff is entitled to obtain discovery with which to oppose Inter-Con’s pending summary judgment motion. (See Code Civ. Proc., § 437c, subds. (h), (i), (m)(2).)

It appears that Inter-Con has responded to plaintiff’s discovery requests as to information regarding plaintiff himself. However, Inter-Con has moved for summary judgement not only on the ground that plaintiff’s assignment was for longer than 90 days, but also on the ground that Inter-Con is not a “temporary services employer” under Labor Code section 201.3. Plaintiff is entitled to obtain discovery on both of these issues. The Court will accordingly review the requests at issue in plaintiff’s motions to determine which are relevant to either of the grounds raised in the summary judgment motion, and will allow any such discovery that is otherwise proper.

C. Request for Monetary Sanctions

As defendant’s motion for a protective order was partially successful, the Court will not award plaintiff monetary sanctions under Code of Civil Procedure, section 2030.090 or 2031.060.

IV. Plaintiff’s Motions to Compel Further Responses

Plaintiff moves to compel further responses to SIs 1-4 and RPDs 1, 4, 5, 9, 11-15, 19-23, and 26-29.

A. Legal Standards for Motions to Compel Further Responses

A party propounding interrogatories may move for an order compelling a further response if that party deems an answer is evasive or incomplete and/or an objection is without merit or too general. The statute does not require any showing of good cause in support of such a motion. (See Code Civ. Proc., § 2030.300; see also Coy v. Superior Court (Wolcher) (1962) 58 Cal.2d 210, 220-221.) The burden is on the responding party to justify any objections or failure to fully answer. (Coy v. Superior Court, supra, 58 Cal.2d at pp. 220-221.)

A party propounding a request for production may also move for an order compelling a further response if it deems that a statement of compliance is incomplete, a representation of inability to comply is inadequate, or an objection is without merit. (Code Civ. Proc., § 2031.310, subd. (a).) The motion must set forth “specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1); Kirkland v. Superior Court (Guess, Inc.?) (2002) 95 Cal.App.4th 92, 98.) Good cause is established simply by a fact-specific showing of relevance. (Kirkland v. Superior Court, supra, 95 Cal.App.4th at p. 98.) If good cause is shown, the burden shifts to the responding party to justify any objections. (Ibid.)

B. Labor Code Definition of Temporary Services Employer

Labor Code section 201.3, subdivision (a)(1) defines a “temporary services employer” as

an employing unit that contracts with clients or customers to supply workers to perform services for the clients or customers and that performs all of the following functions: (A) Negotiates with clients and customers for matters such as the time and place where the services are to be provided, the type of work, the working conditions, and the quality and price of the services[;] (B) Determines assignments or reassignments of workers, even if workers retain the right to refuse specific assignments[;] (C) Retains the authority to assign or reassign a worker to another client or customer when the worker is determined unacceptable by a specific client or customer[;] (D) Assigns or reassigns workers to perform services for clients or customers[;] (E) Sets the rate of pay of workers, whether or not through negotiation[;] (F) Pays workers from its own account or accounts[;] (G) Retains the right to hire and terminate workers.

C. The SIs

SI 1 seeks contact information for all of the allegedly aggrieved employees. SIs 2-4 request information regarding the total number of pay periods, payroll scheduled dates, and actual pay dates for the aggrieved employees. Because none of this information is relevant to the issues raised in Inter-Con’s summary judgment motion, the Court will not order defendant to provide further responses to the SIs at this time. Rather, it will continue plaintiff’s motion to compel further responses to the SIs to a date after the hearing on defendant’s summary judgment motion. The Court will address plaintiff’s motion at that time in the event that Inter-Con’s motion is denied and the parties remain unable to resolve their disputes regarding the SIs.

D. The RPDs

RPD 1 calls for the production of all paychecks and other documents issued to allegedly aggrieved employees. RPD 21 encompasses all documents relating to the payment of wages and/or compensation to such employees, and RPD 26 seeks documents relating to their payroll schedule. RPD 27 demands documents relating to the date when wages were/are paid to security guards. It does not appear to be in dispute that Inter-Con “[p]ays workers from its own account or accounts,” the only factor bearing on whether it is a “temporary services employee” to which these RPDs arguably relate. In any event, these requests seek a far broader range of documents than is necessary to enable this assessment. The Court will accordingly continue plaintiff’s motion as to these RPDs.

RPDs 4 and 5 seek the production of employee handbooks applicable to plaintiff and to all other employees, respectively. There is good cause for the production of these handbooks, which are likely relevant to several of the “temporary services employer” factors. Defendant responded to RPD 4 by stating that it does not have handbooks that applied to plaintiff; however, as urged by plaintiff, defendant’s response does not fully comply with Code of Civil Procedure section 2031.230. Inter-Con indicates that it has agreed to provide a supplemental response to this request, but since it does not appear to have done so, the Court will order a code-compliant response. Defendant’s response to RPD 5 is comprised solely of objections, including an objection that the RPD is overbroad because it is not limited to handbooks governing California employees. Inter-Con has not shown that only handbooks directly applicable to plaintiff would bear on whether it is a “temporary services employer.” A further response to this RPD is therefore warranted, although the Court will limit the RPD to encompass handbooks governing California employees.

RPD 9 demands the production of defendant’s contracts with its clients relating to California security guard services. RPDs 11-14 seek documents concerning negotiations with clients relating to the time and place where California security guards were to work, the type of work to be performed, working conditions, and the quality and price for the work. RPD 15 encompasses documents relevant to Inter-Con’s determination of work assignments. RPDs 19, 20, 22, and 23 call for documents relating to the assignment or reassignment of work to California security guards, the setting of their pay rates, and defendant’s right and/or authority to hire and fire them. Finally, RPDs 28 and 29 call for documents relating to registrations by security guards pursuant to a relevant chapter of the Business & Professions Code. Defendant interposed objections to these RPDs and indicated in response to many of them that it would produce only those documents relevant to plaintiff’s employment.

As with employee handbooks, defendant has not shown that only client and registration documents directly bearing on plaintiff’s employment are relevant to assessing whether defendant is a “temporary services employer.” These RPDs are directed to the specific factors established by the Labor Code, and there is consequently good cause for an order compelling full and complete responses by Inter-Con. Inter-Con raises legitimate financial privacy objections to several of the requests; however, defendant’s privacy interest in the information at issue is appropriately addressed through the entry of a protective order. (See Pioneer Electronics, Inc. v. Superior Court (Olmstead) (2007) 40 Cal.4th 360, 371 [“[p]rotective measures, safeguards and other alternatives may minimize” a necessary intrusion upon a right to privacy].) Defendant’s remaining objections that certain requests are vague, ambiguous, overbroad, and/or unduly burdensome are overruled. Again, these RPDs are directed to the specific factors established by the Labor Code and placed at issue by defendant’s summary judgment motion, and defendants have offered no evidence of burden. (See Williams, supra, 3 Cal.5th at p. 549-550 [an objection based upon burden must be sustained by evidence showing the quantum of work required].)

V. Conclusion and Order

Plaintiff’s motion to compel further responses to the SIs is CONTINUED TO NOVEMBER 16, 2018 at 9:00 a.m. in Department 1.

Plaintiff’s motion to compel further responses to the RPDs is GRANTED IN PART as to RPDs 4-5, 9, 11-15, 19-20, 22-23, and 28-29. Inter-Con shall serve verified, code-compliant further responses to these RPDs and produce all responsive information in conformity therewith within 10 calendar days of the entry of an appropriate protective order to be negotiated by the parties. The responses shall be without objection, except for any preserved objections based on the attorney-client privilege and work product doctrine regarding individual documents. Along with its responses, Inter-Con shall provide a privilege log identifying any documents withheld on the basis of these privileges and providing a factual basis for the privilege claimed. The motion is to compel further responses to the RPDs is otherwise CONTINUED TO NOVEMBER 16, 2018 at 9:00 a.m. in Department 1.

Inter-Con’s motion for a protective order is GRANTED IN PART to the extent that all further discovery that is unrelated to the issues presented by Inter-Con’s summary judgment motion is stayed until that motion is resolved or withdrawn. The motion for protective order is otherwise DENIED. Plaintiff’s request for monetary sanctions is DENIED.

The parties shall meet and confer regarding the terms of a stipulated protective order that will govern Inter-Con’s production of financial and other confidential information. If they are unable to come to agreement, the parties shall advance their next case management conference to a mutually agreeable date so that the issue may be promptly addressed.

The Court will prepare the order.