2015-00174921-CU-DF

Ali Shayegi vs. Pacpizza, LLC

Nature of Proceeding: Motion to Compel Form Interrogatories, Set 2

Filed By: Whelan, Christopher H.

Plaintiff Ali Shayegi (“Plaintiff”) moves to compel further responses to Plaintiff’s form interrogatories, set two, served on July 18, 2017. Plaintiff requests sanctions in the amount of $3,010.00, representing 3.8 hours at $750 per hour and $60 filing fee.

Plaintiff contends the discovery responses improperly assert objections and fail to provide sufficient answers.

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.

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 form interrogatories, set two, on July 18, 2017. [Whelan Decl. ¶ 2, Exh. 1; Bodzin Decl. ¶ 15.]

On October 17, 2017, Plaintiff sent meet and confer correspondence via email related to the responses. [Whelan Decl. ¶ 3, Exh. 2; Bodzin Decl. ¶ 18 (referring to request for admissions, set one, rather than form interrogatories, set two).] 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 attach 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. ¶ 4, Exh. 3.] 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. ¶ 5, Exh. 4; 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. ¶ 6, Exh. 5; Bodzin Decl. ¶ 23, Exh. E.] Plaintiff then filed the instant motion on December 19, 2018.

Analysis

Plaintiff seeks to compel further responses to form interrogatory no. 17.1, related to Defendant’s responses to requests for admissions.

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 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 2030.300(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.

Vague, Ambiguous, or Overbroad Objections

In response to form interrogatory no. 17.1(b), which asks for the responding to “state all facts upon which you base your response” to a request for admission, Defendant asserts an objection that the interrogatory is “vague, ambiguous, overbroad” in regards to its responses related to request for admissions nos. 1, 5, 8, 10-21, and 23. The Court overrules this objection. While Defendant argues in its opposition that it objected to vague requests for admission, the language in its responses states it was objecting to the interrogatory, not the underlying request. Defendant is directed to serve further responses that strictly comply with CCP section 2030.220.

Attorney-Client Privilege or Attorney Work Product Objections

Plaintiff claims Defendant’s assertions of attorney client privilege and attorney work

product to block the disclosure of facts and evidence in response to form interrogatory no. 17.1(b) is in bad faith. This relates to Defendant’s responses to 17.1(b) with regards to requests for admissions nos. 1, 5, 8, 10-21, and 23. The Court overrules the objection. The interrogatory asks Defendant to “state all facts upon which you base your response.” “A fact is one thing and a communication concerning that fact is an entirely different thing. The client cannot be compelled to answer the question, ‘What did you say or write to the attorney?’ but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney.” (Chicago Title Ins. Co. v. Superior Court (1985) 174 Cal.App.3d 1142, 1152.) The attorney-client privilege does not “protect independent facts related to a communication, that a communication took place and the time, date, and participants in the communication.” (State Farm & Fire Cas. Co. v. Superior Court (1997) 54 Cal.App.4th 625, 640, citation omitted.) As this case teaches, the fact that the client delivered evidence to his attorney may be privileged, but the physical object [or information] itself does not become privileged merely by reason of its transmission to the attorney. Nor does the attorney-client privilege protect independent facts related to a communication; that a communication took place, the time, date and participants in the communication. The objections are overruled. Defendant is directed to serve further responses that strictly comply with CCP section 2023.220.

Failure to Identify Responsive Documents

Form interrogatory 17.1(d) asks Defendant to “identify all DOCUMENTS and other tangible things that support your response and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing.” Defendant responded to the interrogatory in regards to requests for admissions nos. 1, 5, 8, 10-21, and 23 was “PacPizza is unaware of any non-privileged documents responsive to this request.” Defendant did not identify any documents or assert any specific privilege. Defendant is directed to serve further responses that either respond that there are no responsive documents or identifies responsive documents. The existence of a document containing privileged information is not privileged. Again, the attorney-client privilege only protects disclosure of communications between the attorney and the client; it does not protect disclosure of underlying facts which may be referenced within a qualifying communication. The physical object [e.g. document(s)] itself does not become privileged by transmission to the attorney. (State Farm Fire & Cas. Co. supra, 54 Cal.App.4th at 640.)

Sanctions

Sanctions are denied. Both sides acted with substantial justification.

To the extent further responses must be served, Defendant shall effect service of amended responses no later than February 1, 2018.