2017-00223633-CU-OE

Fernando Rios vs. Progressive Transportation Services, LLC

Nature of Proceeding: Motion to Compel Production of Documents

Filed By: Ardestani, Sepideh

Plaintiff Fernando Rios’ (“Plaintiff”) motion to compel defendant Progressive Transportation Services, LLC (“Defendant”) to provide further responses to Plaintiff’s requests for production of documents, set one, numbers 4-6, 13, 17, and 18, is ruled upon as follows.

On December 11, 2017, Plaintiff filed this representative PAGA action complaint against defendant Progressive Transportation Services, LLC (“Defendant”) on behalf of himself and Defendant’s current and former truck drivers classified as independent contractors. Plaintiff asserted a single cause of action under PAGA, alleging a variety of Labor Code violations stemming from Defendant’s alleged failure to properly classify these individuals as employees.

Plaintiff has a concurrent motion for leave to file First Amended Complaint on today’s calendar.

On March 29, 2018, Plaintiff served requests for production of documents, set one, on Defendant. (Ardestani Decl. ¶ 5.) Defendant requested, and Plaintiff granted, five separate extensions to respond to the discovery. (Ardestani Decl. ¶ 6.) On July 7, 2018, Defendant served responses to request numbers 4-6, 13, 17, and 18, which consisted solely of objections. (Ardestani Decl. ¶ 7.)

Plaintiff then met and conferred with Defendant. (Ardestani Decl. ¶ 8.) Defendant agreed to provide supplemental responses by September 24, 2018. (Ardestani Decl. ¶ 10.) Defendant then requested, and Plaintiff granted, three extensions to serve supplemental responses. (Ardestani Decl. ¶ 11.)

On October 23, 2018, the date on which Defendant confirmed it would serve supplemental responses, Defendant sent an email to Plaintiff indicating it would not serve supplemental responses and, instead, intended to move the Court to stay this case based on a related case that was filed in Los Angeles County Superior Court several months after this case was filed. (Ardestani Decl. ¶ 12.)

Plaintiff now moves to compel further responses to the subject discovery. Plaintiff contends Defendant’s objections are meritless and, therefore, further responses should be compelled.

In opposition, Defendant contends it intends to file a motion to stay and the matter should be continued until this motion to stay is heard. The Court will not delay the current motion based on Defendant’s future intention to file a motion to stay. As of now, Defendant has not filed a motion to stay; there is no motion to stay on the Court’s calendar. Accordingly, this request to continue the matter until after an as- of-yet to be

filed motion to stay is heard is denied. Further, even if a motion to stay is filed, the Court is not persuaded that is a valid reason to delay ruling on this instant motion.

Defendant then contends this motion is inconsistent with Plaintiff’s motion for leave to file a First Amended Complaint. Defendant contends if Plaintiff’s motion for leave to amend is granted, the amendment would increase the statute of limitations period, which would moot many of the discovery requests Plaintiff seeks to compel. The Court is not persuaded. The motion for leave to amend seeks to add claims, but it does not seek to remove the original PAGA claim, which was the only claim alleged in the original complaint. Accordingly, the PAGA-related discovery is still relevant as the PAGA claim will continue as part of the litigation. As a result, the Court is not persuaded the discovery would become moot or entirely moot. Thus, the Court’s determination on this motion to compel the PAGA-related discovery is independent of the issues presented in the motion for leave.

Defendant then contends Plaintiff has failed to demonstrate “good cause” warranting the discovery responses. Defendant contends Plaintiff has failed to provide any argument as to why he is entitled to the discovery he seeks and why the documents requested are relevant to his PAGA claim.

Indeed, when requests for production of documents are involved, the motion for order compelling further responses “shall set forth specific facts showing good cause justifying the discovery sought by the demand.” (CCP § 2031.310(b)(1) (emphasis added); Kirkalnd v. Sup. Ct. (Guess?, Inc.) (2002) 95 Cal.App.4th 92, 98.) Plaintiff is thus required to make a “fact-specific showing of relevance.” (Glenfed Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.) To establish “good cause,” the burden is on the moving party to show both relevance to the subject matter and specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial.) (Glenfed Develop. Corp. v. Sup. Ct. (National Union Fire Ins. Co. of Pittsburgh, Penn.) (1997) 53 Cal.App.4th 1113, 1117.)

Plaintiff contends the documents sought “are relevant to the instant litigation and are reasonably calculated to lead to the discovery of admissible evidence as they are necessary to calculate the penalties sought by Plaintiff in his complaint.” The Court examines the discovery requests to see if they speak for themselves. Here, the Court finds request numbers 4-6, 13, and 18 speak for themselves. The relevance to penalties is self-evident.

Accordingly, the motion to compel is further responses to requests for production, set one, numbers 4-6, 13, and 18 is GRANTED.

However, the Court is not persuaded that request number 17, which seeks personnel manuals, is self-evidently relevant to calculate the penalties and Plaintiff has provided no explanation. According, the motion to compel is DENIED as to request number 17.

Defendant shall serve further verified responses to requests for production, set one, numbers 4-6, 13, and 18, no later than December 28, 2018.

The parties’ dueling requests for sanctions are DENIED.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.

Item 12 2017-00223633-CU-OE

Fernando Rios vs. Progressive Transportation Services, LLC

Nature of Proceeding: Motion to Compel Special Interrogatories

Filed By: Ardestani, Sepideh

Plaintiff Fernando Rios’ (“Plaintiff”) motion to compel defendant Progressive Transportation Services, LLC (“Defendant”) to provide further responses to Plaintiff’s special interrogatories, set one, numbers 1-11, 16-20, and 24-34 is ruled upon as follows.

On December 11, 2017, Plaintiff filed this representative PAGA action complaint against defendant Progressive Transportation Services, LLC (“Defendant”) on behalf of himself and Defendant’s current and former truck drivers classified as independent contractors. Plaintiff asserted a single cause of action under PAGA, alleging a variety of Labor Code violations stemming from Defendant’s alleged failure to properly classify these individuals as employees.

Plaintiff has a concurrent motion for leave to file First Amended Complaint on today’s calendar.

On March 29, 2018, Plaintiff served special interrogatories, set one, on Defendant. (Ardestani Decl. ¶ 5.) Defendant requested, and Plaintiff granted, five separate extensions to respond to the discovery. (Ardestani Decl. ¶ 6.) On July 7, 2018, Defendant served responses to interrogatory numbers 1-11, 16-20, and 24-34, which consisted solely of objections. (Ardestani Decl. ¶ 7.)

Plaintiff then met and conferred with Defendant. (Ardestani Decl. ¶ 8.) Defendant agreed to provide supplemental responses by September 24, 2018. (Ardestani Decl. ¶ 10.) Defendant then requested, and Plaintiff granted, three extensions to serve supplemental responses. (Ardestani Decl. ¶ 11.)

On October 23, 2018, the date on which Defendant confirmed it would serve supplemental responses, Defendant sent an email to Plaintiff indicating it would not serve supplemental responses and, instead, intended to move the Court to stay this case based on a related case that was filed in Los Angeles County Superior Court several months after this case was filed. (Ardestani Decl. ¶ 12.)

Plaintiff now moves to compel further responses to the subject discovery. Plaintiff contends Defendant’s objections are meritless and, therefore, further responses should be compelled.

In opposition, Defendant contends it intends to file a motion to stay and the matter should be continued until this motion to stay is heard. The Court will not delay the current motion based on Defendant’s intentions to file a motion to stay. As of now,

Defendant has not filed a motion to stay; there is no motion to stay on the Court’s calendar. Accordingly, this request to continue the matter until after an as of yet to be filed motion to stay is heard is denied. Further, even if a motion to stay is filed, the Court is not persuaded that is a valid reason to delay ruling on this instant motion.

Defendant then contends this motion is inconsistent with Plaintiff’s motion for leave to file a First Amended Complaint. Defendant contends if Plaintiff’s motion for leave to amend is granted, the amendment would increase the statute of limitations period, which would moot many of the discovery requests Plaintiff seeks to compel. The Court is not persuaded. The motion for leave to amend seeks to add claims, but it does not seek to remove the original PAGA claim, which was the only claim alleged in the original complaint. Accordingly, the PAGA-related discovery is still relevant as the PAGA claim will continue as part of the litigation. As a result, the Court is not persuaded the discovery would become entirely moot. Thus, the Court’s determination on this motion to compel the PAGA-related discovery is independent of the issues presented in the motion for leave.

Defendant then contends Plaintiff has failed to demonstrate “good cause” warranting the discovery responses. Defendant contends Plaintiff has failed to provide any argument as to why he is entitled to the discovery he seeks and why the interrogatories at issue are relevant to his PAGA claim.

Pursuant to CCP § 2030.330 “On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete. … (3) An objection to an interrogatory is without merit or too general.”

Here, Plaintiff contends Defendant’s boilerplate objections, which are repeated in response to the at-issue interrogatories, are without merit. Defendant has objected on the grounds the interrogatories are vague, ambiguous, and overbroad as the terms used therein. For certain interrogatories, Defendant has also objected on the grounds the information is protected by the right to privacy or seeks irrelevant information. For certain other interrogatories, Defendant also interposed objections on the grounds the request seeks confidential or proprietary business information or is unduly burdensome.

If a timely motion to compel is filed, the burden is on the responding party to justify any objection or failure to answer the interrogatories. (Coy v. Sup. Ct. (Wolcher) (1962) 58 Cal.2d 210, 220-221.)

In opposition, Defendant fails to present any argument supporting its objections based on vagueness and ambiguity, overbreadth, or confidential or proprietary information. This failure is taken as a concession by Defendant that the objections have no merit. The Court also finds, nonetheless, that Defendant’s boilerplate objections on the grounds the interrogatories are vague, ambiguous, and overbroad have no merit and are overruled. The interrogatories are not so vague and ambiguous or overbroad that Defendant may properly refuse to respond. The terms objected to are sufficiently defined to permit Defendant to frame a response. Further, the other phrases Defendant objected to are not so vague and ambiguous that Defendant is unable to respond. Accordingly, these objections are overruled.

Defendant’s objection based on undue burden is also overruled. Defendant has failed to provide any evidence indicating the amount of work required to comply with the requests or any explanation as to why the requests are unreasonably oppressive. Defendant’s speculation that the inspection may be burdensome is not sufficient. Defendant has failed to meet the heavy burden to substantiate its objections based on undue burden and oppression. (See West Pico Furniture Co. v. Superior Court (1961) 56 Cal. 2d 407.)

As to relevance, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc. § 2017.010.) “In the context of discovery, evidence is ‘relevant’ if it might reasonably assist a party in evaluating its case, preparing for trial, or facilitating a settlement. Inadmissibility is not the test, and it is sufficient if the information sought might reasonably lead to other, admissible evidence.” (Glenfed Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.) “Any doubts regarding relevance are generally resolved in favor of allowing the discovery.” ( Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 98.) Moreover, under our discovery statutes the Legislature has authorized “fishing expeditions” and thus “the claim that a party is engaged upon a fishing expedition is not, and under no circumstances can be, a valid objection to an otherwise proper attempt to utilize the provisions of the discovery statutes.” (Greyhound Corp. v. Superior Court, (1961) 56 Cal.2d 355, 385-386.) Nonetheless, even if discovery is likened to a fishing expedition, “as with a fishing license, the rules of discovery do not allow unrestricted access to all species of information.” (Tylo v. Superior Court (1997) 55 Cal.App.4th 1379; see also, Calcor Space Facility v. Superior Court (1997) 53 Cal.App.4th 216.) The Court finds the special interrogatories meet this standard and are “relevant” for discovery purposes.

Finally, Defendant contends Plaintiff is not entitled to obtain the contact information he seeks for the non-party drivers because he has not set forth facts justifying such disclosure. Defendant contends Plaintiff also seeks the private work-related information of non-party drivers, such as payments, dates of service, hours in which they performed services, and whether the individual is currently performing services for Defendant.

There is a constitutionally protected zone of privacy set forth under Article I, Section 1 of California’s Constitution. (Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 526, 528-529.) The California Supreme Court has decided the analytical framework for assessing a privacy claim: (1) there must be a specific legally, protected privacy interest; (2) a reasonable expectation of privacy must exist; and (3) the invasion of the privacy interest must be serious. (Hill v. National Collegiate Athletic Assn., 7 Cal.4th 1, 39-40.)

As to items protected by the right to privacy, the threshold requirement is that such items must be “directly relevant” to the issue in the case. (Britt v. Superior Court (1978) 20 Cal.3d 844; Tylo v. Superior Court (1997) 55 Cal.App.4th 1379.) Yet, even when discovery of private information is found directly relevant to the issues of ongoing litigation, it will not be automatically allowed; there must then be a “careful balancing” of the compelling public need for discovery against the fundamental right of privacy. ( Board of Trustees, supra, at 525.)

“Even when the balance does weigh in favor of disclosure, the scope of disclosure must be narrowly circumscribed.” (Life Technologies Corp. v. Superior Court (2011) 197 Cal.App.4th 640, 652-53 (citing Harding Lawson Associates v. Superior Court (1992) 10 Cal.App.4th 7, 10; Britt v. Superior Court (1978) 20 Cal.3d 844, 855-864 (even party plaintiffs could not be compelled to provide information about all their political activities or their entire medical histories; party seeking discovery must show both compelling need for the information and that discovery request is narrowly and specifically drawn to minimize intrusion into private matters).)

The discovery system in California “is founded on the understanding that parties use discovery to obtain names and contact information for possible witnesses as the starting point for further investigations. … The right of privacy in California Constitution (art. I § 1), ‘protects the individual’s reasonable expectation of privacy against a serious invasion.” (Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1250.) As to third-party privacy rights, the Court must examine whether there is a legally-protected privacy interest at issue based on established social norms, whether the claimant possesses a reasonable expectation of privacy under the circumstances, and if the invasion of privacy alleges is serious in nature, scope an and potential impact to constitute an egregious breach of social norms. (Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 370; see also Williams v. Superior Court (2017)

3 Cal. 5th 531 [overlapping policy considerations support extending PAGA discovery as broadly as class action discovery has been extended. California public policy favors the effective vindication of consumer protections. Discovery of fellow consumer or employee contact information can be an essential precursor to meaningful classwide enforcement of consumer and worker protection statute. Any residual privacy concerns can be protected by issuing so-called Belaire-West notices affording notice and an opportunity to opt out from disclosure.])

Here, Plaintiff seeks contact information for each driver who contracted with Defendant during the limitations period. The Court finds that the requested information, while personal, is not particularly sensitive as it is contact information, not medical or financial details. Similarly, the general information regarding payments, dates of service, hours in which the drivers performed services, and whether the individual is currently performing services for Defendant, is also personal, but not particularly sensitive. Accordingly, the objections based on privacy are overruled. However, the parties shall meet and confer to arrive at the appropriate Belaire notification, subject to opt-out. Here a Belaire notice agreed to by both parties can ensure that proper notice of this action is provided and privacy rights protected.

The Court rejects, as noted, the prematurity claims. The law is clear that a party is entitled to conduct discovery of class issues before a class certification motion. (Stern v. Superior Court (2003) 105 Cal.App.4th 223, 232-233.) PAGA discovery is not to be treated differently.

Based on the foregoing, Plaintiff’s motion to compel is GRANTED.

Defendant shall serve further verified responses to the subject discovery no later than December 28, 2018.

Plaintiff’s request for sanctions is DENIED. The Court finds circumstances make the imposition of the sanction unjust.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.

Item 13 2017-00223633-CU-OE

Fernando Rios vs. Progressive Transportation Services, LLC

Nature of Proceeding: Motion to File 1st Amended Complaint

Filed By: Ardestani, Sepideh

Plaintiff Fernando Rios’ (“Plaintiff”) motion for leave to file First Amended Complaint is GRANTED.

On December 11, 2017, Plaintiff filed this representative action complaint against defendant Progressive Transportation Services, LLC (“Defendant”) on behalf of himself and Defendant’s current and former truck drivers classified as independent contractors. Plaintiff asserted a single cause of action under PAGA, alleging a variety of Labor Code violations stemming from Defendant’s alleged failure to properly classify these individuals as employees.

The complaint alleges Defendant knowingly misclassified Plaintiff and other aggrieved employees as independent contractors in violation of Labor Code § 226.8, failed to pay Plaintiff and other aggrieved employees minimum wages in violation of Labor Code §510, 1194, and 1194.2, failed to provide meal periods and rest periods in violation of Labor Code § 226.7, and failed to issue accurately itemized wage statements in violation of Labor Code § 226(a) and (e).

Plaintiff now seeks leave to file a First Amended Complaint to add direct claims under the applicable Labor Code sections on a class-wide basis. Plaintiff contends no new facts or theories are being added, but all the new claims are based on the same underlying facts as previously alleged. Plaintiff contends the only difference is that Plaintiff now seeks additional remedies – damages, restitution, interest, and statutory penalties – on a classwide basis pursuant to the underlying Labor Code violations.

In opposition, Defendant contends Plaintiff has failed to provide a sufficient justification for waiting nearly one year to add direct class claims and has filed to identify what facts he has discovered since the filing of the original complaint. Defendant argues it believes the only reason Plaintiff is now seeking to amend is because his counsel recently learned that a separate class action against Defendant is currently pending in the Los Angeles Superior Court and Defendant indicated it was going to move to stay this action pending the outcome of that class action. Defendant argues this is a misguided attempt by Plaintiff to maintain “lead status” in a class action case. Finally, Defendant argues it will be prejudiced if amendment is permitted because it would lead to additional discovery being propounded, would add a significant number of putative class members, and expand the relevant time period.

It is well established that California courts have a policy of great liberality in allowing amendments at any stage of the proceeding so as to dispose of cases upon their substantial merits where the authorization does not prejudice the substantial rights of

others. (Board of Trustees v. Super. Court (2007) 149 Cal. App. 4th 1154, 1163.) Moreover, Section 473 of the Code of Civil Procedure authorizes the trial court, in its discretion, to allow amendments in furtherance of justice. The policy of great liberality in permitting amendments at any stage of the proceeding has been declared by our courts. (Klopstock v. Superior Court (1941) 17 Cal. 2d 13, 19-20.) However, courts should not permit an amendment “where it would not serve any useful purpose.” ( Maple Properties v. Harris (1984) 158 Cal. App. 3d 997, 1012.) Additionally, although it is true that amendments to pleadings are to be granted with great liberality, it is equally well established that an unwarranted delay in seeking to amend is one valid ground on which to deny a motion to amend. (See, e.g., Huff v. Wilkins (2006) 138 Cal.App.4th 732, 736.)

Here, the Court is not persuaded that there was been unwarranted delay sufficient to deny a motion to amend. On reply, Plaintiff explains he decided to seek leave to file his FAC once he became aware of new information. Specifically, Plaintiff contends he became aware of a factually similar case pending before the United States Supreme Court entitled New Prime, Inc. v. Oliveira (2018) 138 S.Ct. 1164. Oral arguments were just heard on October 3, 2018, where the issue before the Supreme Court is whether arbitration agreements entered into between independent contractor truck drivers, like Plaintiff, and trucking companies are enforceable. Plaintiff contends it recently became clear to Plaintiff that the Supreme Court appears likely to find in favor of plaintiff and rule that arbitration agreements cannot limit the type of action Plaintiff could assert. Further, Plaintiff contends it was not until October 23, 2018, that Defendant informed Plaintiff about the class action filed in the Los Angeles County Superior Court, which was actually seven months after the case was filed. Plaintiff argues this, coupled with the Supreme Court case, led him to decide to seek leave to file his FAC to include direct class claims under the Labor Code. The Court finds the foregoing persuasive. It does not appear Plaintiff unduly delayed in seeking leave.

Defendant’s arguments regarding prejudice are also unavailing. That new class claims will lead to additional discovery and expand the size of the class and time period is insufficient prejudice to warrant a denial. Indeed, the case is still in its infancy. No trial date has been set, no depositions have been taken, and there has been minimal motion practice.

Pursuant to the policy of great liberality in permitting amendments, the Court finds the amendments are in furtherance of justice and Defendants will not be prejudiced by the filing of the FAC. Plaintiffs’ motion is GRANTED.

Plaintiff to file and serve the FAC no later than December 21, 2018. Although not required by Court rule or statute, Plaintiffs are directed to present a copy of this order when the FAC is presented for filing.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.