Case Number: GC048146    Hearing Date: August 22, 2014    Dept: NCD

TENTATIVE RULING (8-22-14)
#14
GC 048146
HAO v. WMG CONTRACTOR WAREHOUSE

Plaintiffs’ Motion to Compel Further Responses from Defendant Millbrae Paradise, LLC to Plaintiffs’ Special Interrogatories (Set One)

Plaintiffs’ Motion to Compel Further Responses from Defendant Millbrae Paradise, LLC to Plaintiffs’ Requests for Admissions (Set One)

Plaintiffs’ Motion to Compel Further Responses from Defendant Millbrae Paradise, LLC to Plaintiffs’ Requests for Production of Documents (Set One)

TENTATIVE:
Special Interrogatories
Plaintiffs’ Motion to Compel Further Responses from Defendant Millbrae Paradise, LLC to Plaintiffs’ Special Interrogatories (Set One) is GRANTED in part. Defendant Millbrae Paradise, LLC is ordered to provide further complete responses to Special Interrogatories Nos. 2, 3, 4, 6, 9, 10, 11, 12, 16, 17 and 18, which comply with CCP § 2030.210 (c), that is, which provide information obtained after the responding party has made “a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations.” Further responses to be served within ten days.
Motion as to Special Interrogatory No. 19 is DENIED. Objection that the interrogatory is compound is SUSTAINED.

Monetary sanctions in the sum of $1,060 are awarded in favor of plaintiffs and against defendant Millbrae Paradise, LLC, payable within 30 days.

Monetary sanctions sought by the responding party are DENIED.

Requests for Admission
Plaintiffs’ Motion to Compel Further Responses from Defendant Millbrae Paradise, LLC to Plaintiffs’ Requests for Admissions (Set One) is GRANTED in part and DENIED in part.

Motion to compel further responses to Requests Nos. 2, 3, 5, 22, 24, 25, 26, 28, 29, and 30 is DENIED. Objections that the requests are compound are SUSTAINED.

Motion to compel further responses to Requests Nos. 6 and 7 is GRANTED.
Defendant Millbrae Paradise is ordered to provide further complete responses to Requests for Admissions Nos. 6 and 7, which fully comply with CCP § 2033.220(c), that is, which admit or deny the requests or “state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information readily known or readily obtainable is insufficient to enable that party to admit the matter.” Further responses to be served within ten days.

Motion to compel further responses to Requests Nos. 15 and 16 is DENIED. The responses are admissions and it is not clear what further response is requested.

Monetary sanctions requested by both sides are denied.

Requests to Produce Documents
Plaintiffs’ Motion to Compel Further Responses from Defendant Millbrae Paradise, LLC to Plaintiffs’ Request for Production of Documents (Set One) is GRANTED. Defendant Millbrae Paradise, LLC is ordered to permit copying as provided in its response to Demand No. 2 within ten days. Defendant is ordered to provide further complete responses to Demands Nos. 5, 6, 7, 8, 9, 10,11, 12, 13, 14, 16, 17, 18, 20, 21 which fully comply with CCP § 2031.230, that is, which affirms “that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand” and includes for each request a statement specifying whether any 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, and which sets 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. Objections are overruled. Further responses to be served within ten days. (The court has not considered the amended responses, as they are not verified, and also appear incomplete).

Monetary sanctions in the sum of $1,060 are awarded in favor of plaintiffs and against defendant Millbrae Paradise, LLC, payable within 30 days.

Monetary sanctions sought by the responding party are denied.

ANALYSIS:
Factual Background
Plaintiffs Wei Hao and Fa Xue Gong allege that while employed as marble cutting workers at the Millbrae Construction Project, defendant employers failed to provide them with meal periods, rest periods, wage statements, and failed to pay appropriate overtime wages.

Plaintiffs also allege that on April 21, 2010, plaintiff Hao suffered serious injuries when seven large marble pieces fell on him causing him serious injuries, for which defendants failed to provide medical treatment or attention, and that on May 17, 2010, plaintiff Gong suffered serious injury when the electric saw he was using to cut a marble piece did not have a safety guard, and jumped and cut through plaintiff’s left thigh, causing him serious injuries for which defendants also failed to provide appropriate medical care and treatment. It is also alleged that after these injuries, plaintiffs were confined to the worker’s dorm and not permitted to leave, so that they were prevented from seeking their own medical treatment. Plaintiffs further allege that during their employment they were exposed to silica dust and have developed lung and respiratory problems.

The SAC also alleges that defendants have wrongfully terminated plaintiffs’ employment due to their injuries and disabilities.

Substantive
Interrogatories
If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure to fully respond to discovery. Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221.

The special interrogatories request information concerning the dates defendant Zhao began working at the Millbrae Construction Project, how many workers were employed at the project, reports of plaintiff’s accidents, identification of payroll records for Zhao and information concerning Cal OSHA safety and health trainings and inspections and citations. The responses are all a variety of “Responding party did not employ Wei Feng Zhao, nor employ any other specific marble workers, and thus has no knowledge…” or “Responding party was not the general contractor on the project and as such was not responsible for the Cal OSHA safety and health programs on the project…”

The motion argues that these are straightforward interrogatories, and that defendant was required to investigate sources available to it to formulate responses. The argument is that George Lam owned and controlled defendant companies, including the general contractor Millbrae Paradise, and in fact verified the discovery responses. Plaintiffs request that further responses be provided which include information reasonably available or an explanation of what search was conducted for information.

Under CCP section 2030.210(a), the response shall be separate as to each interrogatory and must contain the information sought to be discovered. Under CCP section 2030.220(a), “each answer in a response shall be as complete and straightforward as the information reasonably available to the responding party permits.” Subdivision (b) provides, “if an interrogatory cannot be answered completely, it shall be answered to the extent possible.” Under subdivision (c), where a party does not have personal knowledge sufficient to answer a question, the party “shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.”

It does appear here that even if Millbrae is taking the position it was not the employer of plaintiffs, this information should nevertheless be available to Lam and to this entity through reasonable inquiry to other persons or organizations.

Plaintiffs rely on Chodos v. Superior Court (1963) 215 Cal.App.2d 318, 322, which dealt with requests for admissions, under which the statute permits responses for lack of information and requires an explanation of why a response cannot be admitted.

The opposition stands by these responses, and at best makes a brief argument that there was no appropriate effort to meet and confer. The opposition concedes, however, that copies of the separate statements were provided to counsel in advance of this motion being filed, which appears to be a more than adequate meet and confer. Here, further responses should be provided based on a good faith effort to obtain the requested information according to the statute.
There may be one exception, however, as an objection was asserted to Interrogatory No. 19 that it was compound. The interrogatory states, “Identify all Cal. OSHA safety and health policy violations and citations at the Millbrae Construction project in 2010.”

Under CCP Section 2030.060(f), “No specially prepared interrogatory shall contain subparts, or a compound, conjunctive or disjunctive question.” This rule has long been recognized to prevent parties from avoiding the rule of 35. See Weil & Brown, Civ. Proc. Before Trial 8:978.1. Here, the question requires information regarding violations and citations, so is compound, and requests two different categories of information. The objection may therefore be sustained. The moving papers suggest that the responses were “tardy,” so objections may have been waived, but the declaration in support of the motion states that defendant’s counsel was given a 30 day extension to respond on May 30, 2014, and the responses were served on June 25, 2014, within that thirty days. [See Yang Decl., para. 7, 8]. Accordingly, objections have not been waived, and the motion is denied to this interrogatory and the objection sustained.

Requests for Admissions
Requests Nos. 2, 3, 5, 22, 24, 25, 26, 28, 29, 30
The requests request admissions that plaintiffs worked at the Millbrae Paradise construction, that they were injured, that Millbrae did not provide medical care and treatment, and did not accommodate disabilities, that plaintiffs worked and were not paid for overtime, and that meal periods, rest breaks and wage statements were not provided. There are also requests concerning status as being unlicensed and uninsured. Defendant has asserted objections to each of these requests on the ground they are compound, as they ask questions concerning both plaintiffs.

Under CCP § 2033.060, governing the form and content of Requests for Admissions, “(f) No request for admission shall contain subparts, or a compound, conjunctive or disjunctive request…”

The requests are clearly compound, and the objection is sustained. No further responses shall be ordered as to these requests.

Request No. 6, 7
These requests seek an admission that defendant “knew defendant Wei Feng Zhao was an unlicensed contractor when he was working for you in 2010,” and that defendant knew Zhao was uninsured. The response is an objection that the inquiry is compound because it requires an admission that Zhao worked for defendant and was unlicensed or uninsured, and “Responding party did not employ Wei Feng Zhao.” To the extent this is an objection the inquiries are compound, they do not appear to be and can be responded to in part.

To the extent defendant intends to assert that since this defendant has no information or belief sufficient to respond to the request, based on the theory that Millbrae was not the employer, the responses fail to comply with CCP section 2033.220(c), which provides:
“If a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information readily known or readily obtainable is insufficient to enable that party to admit the matter.”

These responses are accordingly incomplete, as they do not state that a reasonably inquiry has been made, or that information readily known or obtainable is insufficient. In addition, in Chodos v. Superior Court (1963) 215 Cal.App.2d 318, the Second District, in interpreting the former version of the discovery statutes, set a standard for claiming lack of information which was quite high, given the purpose of Requests for Admissions.

Here, the person verifying the responses was evidently involved in some capacity with the actual employer or the entity which hired plaintiffs to work, in whatever capacity. The information to determine if these issues will be disputed at trial is evidently known to him. Further responses which fully comply with the code are ordered to be provided.

Requests Nos. 15, 16
These request that defendant admit it did not provide Cal-OSHA safety and training, and did not comply with Cal-OSHA safety and health requirements. The responses are “Admitted, as Responding Party was not the general contractor on the project and as such had no obligation implement or comply with Cal-OSHA safety and health requirements.”

The responses appear to be admissions that Millbrae did not provide safety and training or comply with Cal-OSHA requirements, which seems to be a fairly straightforward admission, with which Millbrae will have to live if it turns out it is considered the party which had an obligation to comply. It is not clear what further response is requested here, or how the response is evasive or incomplete. The motion as to these requests is denied.

Document Demands
As an initial matter, the opposition argues that there were amended responses served to the document demands in July of 2014, which are evidently not addressed in the motion. [See Ex. 18]. However, the opposition concedes that such supplemental responses were not verified. Where a verification of discovery is required, an unverified response is ineffective; it is the equivalent of no response at all. See Appleton v. Superior Court (1988) 206 Cal. App. 3d 632, 636; Weil and Brown, §8:1113.

If verifications have been provided, the motion may be moot. However, the court may prefer to rule on the motion, particularly since the amended responses do not appear to comply fully with the code.

Demand Nos. 2
This demand requests documents evidencing defendant’s business license for 2010. The response is that responsive documents will be provided. No business license has been produced. Defendant is ordered to make the subject production forthwith.

Demands Nos. 5, 6, 7, 8, 9, 10,11, 12, 13, 14, 16, 17, 18, 20, 21
These demands seek documents such as contracts which Zhao and checks issued to him, invoices with WMG and Zhao and documents concerning their business relationship, documents evidencing payments to them, as well as documents concerning Cal-OSHA safety implementation at the project.

The responses are some variation of “there are no documents responsive to this request,” or an objection that the request assumes facts not in evidence, and a response that, for example, responding party never made payments to Zhao, as such payments would have been the responsibility of the general contractor.

Millbrae’s position on this issue is questionable, but, in any case, if it continues to insist that it has no documents, it must fully comply with the Discovery Act.

Under CCP section 2031.210, a response shall either be a statement of compliance, a representation that the party lacks the ability to comply, or an objection.

With respect to a statement of inability to comply, CCP section 2031.230 requires:
“A representation of inability to comply with the particular demand for inspection shall affirm that a diligent search and a reasonably 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 responses do not affirm that a diligent search and reasonable inquiry has been made, and do not specify the remaining information concerning the inability to comply. Further responses which fully comply with this section are ordered to be served.

Sanctions
Moving party seeks sanctions.

CCP § 2030.300 (d) provides that the court “shall impose a monetary sanction…against any party, person, or attorney who unsuccessfully…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.” Similar provisions apply to motions to compel further responses to Requests for Admissions and Document Demands.

Under CCP § 2023.010, misuse of the discovery process includes “(d) failing to respond or to submit to an authorized method of discovery.”; “(e) making, without substantial justification, an unmeritorious objection to discovery”; and “(f) making an evasive response to discovery.” Where there has been a misuse of the discovery process, under Section 2023.030(a), the court “may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.”

Under CRC Rule 3.1348(a): “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel, even though no opposition to the motion was filed, or the requested discovery was provided to the moving party after the motion was filed.”

In this case, defendant has provided inadequate responses to the interrogatories and document demands and made the motions necessary. There is no indication that this conduct was substantially justified or that the imposition of sanctions would be unjust. Sanctions shall therefore be awarded with respect to the interrogatories and document demand motions. The sanctions sought are $1,060 for each motion, certainly reasonable amounts.