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 plaintiff Shailendra Singh’s motions to compel further responses to (1) special interrogatories and (2) requests for production of documents. Both 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 a 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 fully briefed these motions, and plaintiff 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.”

Plaintiff’s motions to compel and Inter-Con’s motion for a protective order came on for hearing on August 10, 2018. Following oral argument, the Court issued an order granting Inter-Con’s motion in part and staying discovery unrelated to the issues presented by its summary judgment motion until that motion was resolved. The Court granted plaintiff’s motion to compel further responses to the RPDs in part, and otherwise continued plaintiff’s motions so that they could be addressed after the summary judgment motion was resolved if necessary. Following a hearing on January 25, 2019, the Court denied Inter-Con’s summary judgment motion, finding that defendant had not addressed the factors determining whether it qualifies as a “temporary services employer” and similarly had not addressed the period of time for which plaintiff was “assigned to work for a client,” which determines whether the 90-day exception to section 201.3 apples.

Plaintiff’s motions to compel further responses to the SIs and RPDs have now come on for hearing for the second time. The Court will address whether further responses are warranted now that discovery is no longer limited to subjects at issue on summary judgment.

III. Unauthorized Supplemental Opposition Papers

As an initial matter, defendant filed supplemental oppositions to plaintiff’s motions on March 18, 2019. On the same date, it filed a second motion for summary judgment based on the 90-day exception to Labor Code section 201.3. In its supplemental oppositions, defendant again urges that discovery should be stayed until its renewed motion for summary judgment is resolved.

While the Court granted defendant’s motion for a protective order staying discovery unreleated to its first summary judgment motion until that motion was resolved, given the passage of time and the unsuccessful outcome of defendant’s first motion, the Court concludes that there is no longer good cause for a stay. The discovery requests at issue were propounded in November of 2017, well over a year ago, and the Court will hear plaintiff’s motions to compel further responses on their merits. Notably, defendant’s request has not been presented in the form of a properly noticed motion for a protective order, but was included in unauthorized supplemental opposition papers, and is appropriately denied on that basis alone. (See Code Civ. Proc., §§ 2030.090, 2031.060 [upon receipt of interrogatories or requests for production of documents, responding party “may promptly move for a protective order” extending the time to respond or imposing conditions on a response].)

Defendant’s supplemental opposition papers largely repeat the arguments raised in its original opposition papers, which are addressed below. To the extent the unauthorized supplemental oppositions raise any new arguments, the Court declines to consider them. (See Hollywood Screentest of America, Inc. v. NBC Universal, Inc. (2007) 151 Cal.App.4th 631, 643 [where court “had not given permission for a supplemental declaration to be filed,” its “refusal to accept such a filing was well within the court’s discretion”].)

Defendant’s request for judicial notice of a declaration supporting its renewed motion for summary judgment is DENIED, both because defendant was not authorized to file additional materials in support of its oppositions and because the merits of defendant’s summary judgment motion do not impact the Court’s analysis of the parties’ discovery dispute.

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. The SIs

SI 1 seeks contact information for all of the allegedly aggrieved employees. Defendant responded to this SI by resting upon objections, including its objections regarding plaintiff’s standing to represent the class, which must fail now that defendant’s initial challenge to plaintiff’s standing has proven unsuccessful. In its opposition papers, defendant fails to defend any of its other objections, but states that plaintiff waived the right to compel a further response to this SI because it was not included in his separate statement. Defendant cites no authority for the proposition that failing to file an adequate separate statement constitutes a waiver. While the Court has discretion to deny a motion to compel further responses under these circumstances (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893), it declines to do so here considering the basic and straightforward nature of the request at issue. Plaintiff is entitled to class contact information subject to the Belaire-West procedure, which addresses employee privacy concerns. (See Williams v. Superior Court (Marshall’s of CA, LLC) (2017) 3 Cal.5th 531, 552-559 [in wage and hour actions, employee contact information must generally be produced subject to the Belaire-West procedure].) A further response to this SI is warranted.

SIs 2-4 request information regarding the total number of pay periods, payroll scheduled dates, and actual pay dates for the aggrieved employees. Defendant responded to these SIs by interposing objections and providing substantive responses limited to aggrieved employees who worked for the California Highway Patrol. Again, Inter-Con defends only its objection related to plaintiff’s standing. As urged by plaintiff, Williams requires Inter-Con to justify limiting the scope of its discovery responses to a subset of the class alleged in the operative complaint. (See Williams v. Superior Court, supra, 3 Cal.5th at p. 549 [“The trial court had no discretion to disregard the allegations of the complaint making this case a statewide representative action from its inception.”].) However, defendant fails to even explain its unilateral limitation in argument. While Inter-Con notes that Williams specifically addressed only class contact information, it articulates no reason why its holding would not apply to the additional requests at issue here. Inter-Con must fully respond to these 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.

There is good cause for the production of these documents, which all relate to aggrieved employees’ pay schedules, with the exception of RPD 1’s overbroad request for all “other documents” issued to employees. Defendant responded to these RPDs by interposing objections and by agreeing to produce documents related to plaintiff’s employment only. Again, absent an affirmative showing of burden, overbreadth, or other valid objection, the Court has no basis to limit the scope of the RPDs to plaintiff’s employment or work assignment. (See Williams v. Superior Court, supra, 3 Cal.5th at p. 549.) In its opposition papers, defendant repeats its arguments regarding plaintiff’s standing, which must fail, and raises a privacy objection, which will be addressed by the Belaire-West procedure. It repeats but does not explain its objections that the requests are vague, ambiguous, overbroad, and unintelligible, which are overruled except to the extent they are directed at RPD 1’s request for all “other documents” issued to employees. Finally, Inter-Con objects to RPD 21 based on its own financial privacy interests, an objection which the Court assumes has already been addressed in compliance with the its prior order through the parties’ negotiation 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].) A further response to each of these RPDs is warranted.

RPDs 4 and 5 seek the production of employee handbooks applicable to plaintiff and to all other employees, respectively. In its prior order, the Court directed Inter-Con to provide further responses to these RPDs, limited to encompass handbooks governing California employees. The Court assumes that code-compliant further responses to these RPDs have already been provided. Similarly, the Court previously ordered defendant to provide further responses to these RPDs 9, 11-15, 19, 20, 22, 23, 28, and 29, and assumes that it has done so

V. Conclusion and Order

Plaintiff’s motion to compel further responses to the SIs is GRANTED. His motion to compel further responses to the RPDs is GRANTED IN PART as to RPDs 1, 21, 26, and 27, and was previously granted as to the remainder of the RPDs at issue. Within 20 calendar days of the filing of this order, Inter-Con shall serve verified, code-compliant further responses to the discovery requests at issue as described above, and shall provide all responsive documents and information in conformity with its responses to the RPDs. The responses shall be without objection, except for the overbreadth objection to RPD 1’s request for all “other documents” issued to employees, as well as 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 parties shall meet and confer regarding a Belaire-West notice and procedure within 10 calendar days of the filing of this order, and Inter-Con shall provide notice to the aggrieved employees within 10 calendar days of the parties’ agreement on these issues, or a later date agreed upon by the parties. The parties shall immediately raise with the Court any issues they cannot resolve themselves in this regard.

The Court will prepare the order.