2015-00174921-CU-DF

Ali Shayegi vs. Pacpizza, LLC

Nature of Proceeding: Motion to Compel Production of Documents, Set 2 and 3

Filed By: Whelan, Christopher H.

Plaintiff Ali Shayegi (“Plaintiff”) moves to compel further responses to Plaintiff’s request for production of documents, set nos. two and three, served on July 15 and July 18, 2017. Plaintiff requests sanctions in the amount of $3,360.00, representing 4.4 hours at $750 per hour and $60 filing fee. On reply, Plaintiff’s counsel’s declaration amends the request for sanctions to $6,900.00, for 9.2 hours at $750 per hour.

Defendant PacPizza, LLC (“Defendant”) opposes the motion and requests sanctions in the amount of $1,185.00, representing 4.5 hours at $250 per hour and $60 filing fee. Defendant argues the responses are complete, that Plaintiff failed to satisfy the meet and confer requirement, and that the motion is untimely.

On motion of the Court, this matter is continued to February 27, 2018 at 2:00 p.m. in this department. If the new date is inconvenient for any party, then counsel shall meet and confer and inform the Department 53 clerk of their request for a different, subsequent date.

Background

This is an employment case wherein Plaintiff, a former store manager for Defendant, alleges wrongful termination, retaliation, and defamation. Plaintiff alleges upper management used an inventory error not caused by Plaintiff to justify his termination after Plaintiff suspended another employee following allegations of sexual harassment. Plaintiff alleges he disputed management’s decision not to terminate the employee, whose father was a district manager for Defendant at the time. For its part, Defendant represents that Plaintiff struggled to maintain performance standards and failed to meet cost of labor targets, Defendant discovered $2,700 of inventory was missing and Plaintiff encouraged subordinates to fabricate inventory numbers.

Plaintiff served his request for production of documents, set two, on July 14, 2017. [Whelan Decl. ¶ 2, Exh. 1; Bodzin Decl. ¶ 15.] Plaintiff served his request for

production of documents, set three, on July 18, 2017. [Whelan Decl. ¶ 3, Exh. 2; Bodzin Decl. ¶ 15.] The parties stipulated to a protective order on September 7, 2017. [Bodzin Decl. ¶ 16.]

Defendant provided responses to both sets of requests on September 8, 2017. [Whelan Decl. ¶ 5; Bodzin Decl. ¶ 17.] On October 5, 2017, Defendant served a privilege log. [Whelan Decl. ¶ 6, Exh. 5.]

On October 17, 2017, Plaintiff sent meet and confer correspondence via email related to the responses. [Whelan Decl. ¶¶ 7,8, Exhs. 6, 7; Bodzin Decl. ¶ 18 (referring to request for admission, set one, rather than request for production, set nos. two and three).] Plaintiff gave Defendant until October 24, 2017 to provide “full, complete and good faith responses.” [Whelan Decl. ¶¶ 7, 8.] On October 24, 2017, counsel exchanged email correspondence regarding the discovery. The email purports to have attached further correspondence from Defendant’s counsel, but the parties do not include the document with their briefing. [Bodzin Decl. ¶ 21, Exh. C (email correspondence).] Plaintiff’s counsel responded to Defendant’s counsel’s office stating: “Thank you for the offer but I do not want a 45 day extension on anything. I want proper responses to this long overdue discovery. Some of this discovery was propounded in mid-July. [¶] I will agree to Defendant having an extension to November 7, 2017 to delivery to my office before close of business proper responses to all the propounded discovery. And then plaintiff will have until November 21, 2017 to file his motions on all the outstanding discovery. The discovery was basic and straightforward further delays just are not warranted. [¶] Send me an email by 9:30 a.m. tomorrow, 10/25/17 to confirm this agreement, otherwise I will finish my motions and file them on this Friday.” [Id.] That same day, Defendant’s counsel responded: “Christopher: I accept your offer and PacPizza will serve the further responses to Plaintiff’s Request for Admissions, Set 1, General Form Interrogatories, Set 1 & Request for Production of Documents Sets 2 & 3 by close of business November 7. As you request, I am agreeable to your deadline to file a motion to compel on this discovery to be extended to November 21.” [Id.]

Defendant provided further responses on November 3, 2017. [Whelan Decl. ¶¶ 9, 10, Exhs. 8, 9; Bodzin Decl. ¶¶ 24, 25, Exhs. F, G.] On November 8, 2017, Plaintiff emailed meet and confer correspondence regarding Defendant’s amended responses giving Defendant until November 20, 2017 to provide “full, complete, responsive and code compliant responses with the requested documents.” [Whelan Decl. ¶¶ 11, 12, Exhs. 10, 11; Bodzin Decl. ¶ 22, Exh. D.] On November 13, 2017, Defendant responded to Plaintiff stating no further responses were necessary or would be served. [Whelan Decl. ¶ 13, Exh. 12; Bodzin Decl. ¶ 23, Exh. E.] Plaintiff then filed the instant motion on December 19, 2018.

Analysis

Plaintiff seeks to compel further responses to request for production, sets two and three.

Timeliness of Motion and Adequacy of Meet-and-Confer Efforts

Defendant argues the motion is untimely per the agreement reached by the parties and insufficient meet and confer efforts by Plaintiff. Upon reviewing the correspondence between the parties attached as Exhibit C to the declaration of Robert

M. Bodzin, the Court finds that the correspondence, though far from a model of clarity, does not constitute a clear waiver of the time afforded to bring a motion to compel under the Code. Pursuant to Code of Civil Procedure section 2031.310(c), Plaintiff had 45 days from the date of service of the supplemental verified response on November 3, 2017. Plaintiff had an additional five days because Defendant served the supplemental response by mail. Therefore, the Court will consider Plaintiff’s motion. The Court finds that Plaintiff’s meet and confer efforts were sufficient.

Need for Further Meet and Confer Efforts and Submission of Joint Separate Statement

Here, the record before the Court is not clear in what relief specifically is being sought and what is opposed by Defendant. The Court is not required to interpret the intent of the parties.

In its moving papers, Plaintiff contends further responses to set two, nos. 1-24, and request for production, set three, nos. 2-32, are required. However, on reply, Plaintiff alleges that the arguments in its motion predominantly relate to request for production, set two, nos. 1-3, 5-19, 21-24, and set three, nos. 1-12, 14-16, 18, 20, 21, 23, 27, 28, and 30-32. Even on more specific bases for moving, the parties are inconsistent in their papers. For example, in its moving papers, Plaintiff contends that Defendant failed to comply with the statutory requirements in making a statement of inability to comply with regard to responses to request for production, set two, nos. 20 and 23, and set three, nos. 8, 12-21, 24, 26, and 28. In its opposition, Defendant states “PacPizza has unambiguously stated in its Amended Responses to Plaintiff’s Third Set of RPDs 8, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 24, 26, and 28 that the item or category of documents is no longer in the possession, custody or control of PacPizza” but does not address the requests in set two of the request for production. On reply, Plaintiff states its motion relates to request for production, set three, nos. 12, 14, 15, 16, 18, 20, and 21 and is not applicable to set two.

Further, the separate statement filed with the initial moving papers includes set two, nos. 1-24, and set three, nos. 2-32, consistent with the moving papers. The separate statement(s) filed by Defendant in response includes a separate statement addressing set three twice but no separate statement with set two requests. The separate statement filed by Plaintiff on reply include both set two and set three but with inconsistent numbering. The inconsistent numbering in the briefing coupled with the confusion in the separate statements provides a significant lack of clarity to the Court.

As such, the parties are ordered to meet and confer and file a joint separate statement. Counsel shall meet and confer by no later than January 29, 2018. After thoroughly meeting and conferring in an attempt to resolve the outstanding issues related to the requests for both sets of requests for production, counsel for the parties shall file a joint statement by no later than February 9, 2018, indicating which discovery issues have been resolved, and which issues (if any) remain outstanding. For each outstanding issue, counsel shall set forth in the joint statement their respective positions, citing the relevant facts and authorities. Boilerplate or cut-and-paste arguments are strongly discouraged.

Counsel are reminded that this court does not have the resources to tend to and resolve every discovery issue that could have and should have been resolved informally. (See Young v. Rosenthal (1989) 212 Cal.App.3d 96, 117 [“The very purpose of an order to meet and confer is to obtain a negotiated resolution of a

discovery dispute without having to expend judicial time to sort out which party is correct and what relief should be granted. What the court seeks is an agreement by the parties which resolves the dispute”].)