2015-00174921-CU-DF

Ali Shayegi vs. Pacpizza, LLC

Nature of Proceeding: Motion to Compel Request for Admissions, Set 1

Filed By: Whelan, Christopher H.

Plaintiff Ali Shayegi (“Plaintiff”) moves to compel further responses to Plaintiff’s request for admissions, set one, served on July 18, 2017. Plaintiff requests sanctions in the amount of $2,085.00, representing 2.7 hours at $750 per hour and $60 filing fee. On reply, Plaintiff’s counsel’s declaration requests $3,375.00 in sanctions, representing 4.5 hours at $750 per hour.

Plaintiff contends the discovery responses were evasive and incomplete, contained objections without merit or that were too general, and there is good cause justifying the discovery sought.

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, Plaintiff failed to satisfy the meet and confer requirement, and 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. 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 admissions, set one, on July 18, 2017. [Whelan Decl. ¶ 2, Exh. 1; Bodzin Decl. ¶ 15.] Defendant provided responses on September 8, 2017. [Bodzin Decl. ¶ 17.]

On October 17, 2017, Plaintiff sent meet and confer correspondence via email related to the responses. [Whelan Decl. ¶ 3, Exh. 2; Bodzin Decl. ¶ 18.] On October 24, 2017, counsel exchanged email correspondence regarding the discovery. The email purports to attach 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. ¶ 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 request for admissions, set one.

The Code specifically allows for a motion for further responses based on the contention that responses contain objections that lack merit. (E.g., Code Civ. Proc § 2033.290(a)(2).) In such a circumstance, the party asserting the objection obviously has the burden to justify the objection. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255, citing Coy v. Superior Court (1962) 58 Cal.2d 220-221.)

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

Defendant first argues the motion is untimely per the agreement reached by the parties and insufficient meet and confer by Plaintiff. Again, 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 further responses under the Code. Pursuant to Code of Civil Procedure section

2030.290(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

Plaintiff included objections that the requests were “vague, ambiguous, overbroad” in response to request for admissions nos. 1, 5, 8-21, and 23. While Defendant argues in opposition in its separate statement its various reasons for the objections within specific requests, the objections included with the responses were boilerplate and not “tailored to the specific deficiencies” of the request, as claimed by Defendant. Further, the response(s) went on to answer the request without reasonably and clearly qualifying its response. Therefore, these boilerplate objections are overruled. Defendant is ordered to provide responses that comply with CCP section 2033.220.

Responses Stating that Defendant Lacked Sufficient Information and Belief to Answer

Plaintiff argues that Defendant failed to provide answers that were “as complete and straightforward as the information reasonably available to the responding party permits.” (Code Civ. Proc. § 2033.220(a).) Specifically, in response to request for admissions nos. 1, 5, 8-21, and 23, Defendant responded that it “lacked sufficient

information and belief to answer.”

Pursuant to the Code, “[i]f 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 known or readily obtainable is insufficient to enable that party to admit the matter.” (Code Civ. Proc. § 2033.320(c).) Defendant has failed to state that such an inquiry was undertaken. In many instances, Defendant contends it was not able to fully answer because Jeff Geiszler is no longer employed by Defendant. However, Defendant did not indicate whether it attempted to conduct a reasonable inquiry, either through contacting Mr. Geiszler or securing the information through other sources, including other individuals or documentation. Defendant is directed to provide responses that comply with CCP section 2033.220.

Attorney-Client Privilege or Attorney Work Product Objections

Defendant asserts objections of attorney-client privilege and attorney work product in its responses to requests for admissions nos. 1, 5, 8, 10-21, and 23.

“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.) “Relevant facts may not be withheld merely because they were incorporated into a communication involving an attorney, and knowledge that is not otherwise privileged does not become so by being communicated to an attorney.” ( Edwards Wildman Palmer LLP v. Superior Court (2014) 231 Cal.App.4th 1214, 122, citations omitted.)

The objections are overruled. Defendant is directed to serve further responses that strictly comply with CCP section 2023.220.

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.