John Doe vs Norman’s Nursery Inc et al

Case Number

23CV01348

Case Type

Hearing Date / Time

Fri, 04/19/2024 - 10:00

Nature of Proceedings

CMC; (4) Motions to Compel

Tentative Ruling

For all reasons discussed herein, the motions of plaintiff to compel defendant Norman’s Nursery, Inc.’s, further responses to plaintiff’s set one form interrogatories-general, form interrogatories-employment, special interrogatories, and requests for production of documents are each denied.

Background: 

As alleged in the complaint filed in this matter on April 3, 2023, by plaintiff John Doe:

In August 2014, plaintiff was hired to work at defendant Norman’s Nursery, Inc. (NNI). (Compl., ¶ 12.) Defendant Cuauhtemoc Rodriguez (Rodriguez) was plaintiff’s supervisor. (Id. at ¶ 13.) Rodriguez constantly made sexual comments about plaintiff and was reported to NNI’s Human Resources for sexual harassment in 2018. (Id. at ¶¶ 13, 14.) NNI failed to investigate and prevent the sexual harassment perpetrated by Rodriguez. (Id. at ¶ 14.)

In May 2019, NNI moved Rodriguez to its “Casitas” location but eventually moved Rodriguez back to the “Vila Real” location where plaintiff worked. (Compl., ¶ 15.) On November 16 and 17, 2019, while plaintiff was spraying pesticides, Rodriguez grabbed plaintiff and forcefully tried to hug and kiss him. (Id. at ¶¶ 16 & 17.) Plaintiff attempted to push Rodriguez away but Rodriguez continued to force himself on plaintiff. (Ibid.)

Plaintiff tried to avoid going to work on the days he knew Rodriguez was assigned to plaintiff’s location. (Compl., ¶ 18.) Plaintiff would take days off or call in sick, until he was told by Human Resources, Maria Alonzo (Alonzo), that he was missing a lot of work. (Ibid.) Plaintiff informed Alonzo about the sexual harassment and abuse he was suffering at the hands of Rodriguez but .Alonzo told plaintiff that “these are some serious accusations that could get you into trouble.” (Id. at ¶¶ 18 & 19.)

The sexual harassment continued when Rodriguez pulled out his penis in front of plaintiff and proceeded to make sexual remarks to plaintiff. (Compl., ¶ 20.) Plaintiff felt threatened by Rodriguez because Rodriguez is physically larger and stronger than plaintiff, but plaintiff ultimately was able to get away. (Id. at ¶ 20.) Subsequently, Rodriguez threatened plaintiff by saying that Rodriguez could get plaintiff fired, and forcefully performed oral sex on plaintiff. (Id. at ¶ 21.) On March 18, 2022, plaintiff could no longer endure the sexual abuse and harassment and resigned. (Id. at ¶ 22.)

The complaint alleges seventeen causes of action: (1) negligence (against NNI only); (2) workplace sexual harassment (against NNI and Rodriguez); (3) employment discrimination based on sexual orientation (against NNI and Rodriguez); (4) violation of the Ralph Civil Rights Act (against NNI and Rodriguez); (5) violation of the Tom Bane Civil Rights Act (against NNI and Rodriguez); (6) hostile work environment harassment (against NNI and Rodriguez); (7) failure to take all reasonable steps to prevent harassment, retaliation, and discrimination in violation of the Fair Employment and Housing Act (FEHA) (against NNI); (8) failure to investigate in violation of FEHA (against NNI) (9) retaliation in violation of FEHA (against NNI); (10) wrongful constructive discharge of employment in violation of public policy (against NNI and Rodriguez); (11) wrongful termination in violation of public policy (against NNI); (12) failure to pay overtime wages (against NNI); (13) failure to provide meal periods (against NNI); (14) failure to authorize and permit rest periods (against NNI); (15) failure to pay wages of discharged employees – waiting time penalties (against NNI); (16) failure to provide and maintain accurate and code compliant wage records (against NNI); and (17) violation of California Business and Professions Code section 17200 et seq. (against NNI).

On May 5, 2023, NNI and Rodriguez each filed separate answers to the complaint of plaintiff in which NNI and Rodriguez generally deny its allegations and assert affirmative defenses.

On January 31, 2024, plaintiff filed four motions: (1) for an order compelling NNI to respond further to plaintiff’s form interrogatories – general, set one (the General FI Motion); (2) for an order compelling NNI to respond further to plaintiff’s form interrogatories – employment, set one (the Employment FI Motion); (3) for an order compelling NNI to respond further to plaintiff’s special interrogatories, set one (the SI Motion); and (4) for an order compelling NNI to respond further to plaintiff’s requests for production, set one (the RFP Motion) (collectively, the motions).

In support of each of the motions, plaintiff submits separate declarations of his counsel, Nicol Hajjar (Hajjar), which include substantially the same if not identical information in identically numbered paragraphs. For ease of reference, the court will refer to the paragraph numbers and exhibits contained and referenced in the declarations of plaintiff’s counsel collectively where it is appropriate to do so.

Hajjar states that on May 22, 2023, plaintiff served NNI with plaintiff’s set one form interrogatories – general (the General FI), form interrogatories – employment law (the Employment FI),  special interrogatories (the SI), and requests for production (the RFP) (collectively referred to as the discovery requests). (Hajjar Decls., ¶¶ 3 & Exhs. 1.) NNI served its original responses to the discovery requests on July 14, 2023, and served supplemental responses to the discovery requests on October 13, 2023. (Id. at ¶¶ 4 & Exhs. 2, 3.) On December 13, 2023, NNI served further supplemental responses to the Employment FI and the RFP only. (Hajjar Decls., ¶¶ 4 & Exhs. 3 [Employment FI Motion & RFP Motion].)

Hajjar further states that the parties have met and conferred “extensively” to attempt to resolve the issues raised by the motions without judicial intervention. (Hajjar Decls., ¶¶ 5 & Exhs. 4.) On December 29, 2023, NNI agreed to extend the deadline to file the motions to February 2, 2024. (Id. at ¶¶ 6 & Exhs. 5.)

NNI opposes each of the motions. In support of its oppositions to each motion, NNI submits the declarations of its counsel, Lyle Chan, who does not dispute the date of service of the discovery requests, the dates on which NNI served its responses and supplemental responses to the discovery requests, or the date on which NNI served further supplemental responses to the Employment FI and the RFP. (Chan Decls., ¶¶ 2, 3, 5, 6 & Exhs. A, B, D, & E.) Counsel also does not dispute that the parties exchanged meet and confer correspondence with respect to the discovery requests and NNI’s responses thereto. (Id. at ¶¶ 4, 6 [Opps. to Employment FI Motion & RFP Motion] & Exhs. C, E [Opps. To Employment FI Motion & RFP Motion].)

Analysis:

There exist procedural deficiencies with the motions.

Under Code of Civil Procedure section 1005.5, subdivision (a)(13), and sections 2030.300 and 2031.310, subdivisions (c), the motions require written notice. A notice of a motion must “must state … the grounds upon which it will be made” and in the opening paragraph, “the nature of the order being sought….” (Code Civ. Proc., § 1010; Cal. Rules of Court, rule 3.1110(a).) “The purpose of the notice requirements ‘is to cause the moving party to “sufficiently define the issues for the information and attention of the adverse party and the court.” ’ [Citations.]” (Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1277.)

In the notices of each of the motions, plaintiff contends that the discovery responses are “as a whole non-responsive, non-substantive, unsatisfactory, inadequate, incomplete, and evasive”, and that NNI’s objections are “boilerplate[,] … untenable, generic and unsupported by any meritorious argument.” (Notices at p. 2, ¶¶ 1 & 2.) For this reason, each notice states an intent by plaintiff to compel further responses to the discovery requests “as a whole” and leaves the court and NNI with the impression that all of the discovery requests are at issue.

Notwithstanding the content of the notices further discussed above, in each memorandum submitted in support of each of the motions, plaintiff identifies specific discovery requests that plaintiff contends are deficient and to which plaintiff seeks to compel NNI to provide further responses. For example, in the third full paragraph of the “Introduction” section and in the “Conclusion” section of the opening memorandum in support of the General FI Motion, plaintiff refers only to General FI No. 15.1. (General FI Motion at pp. 3 & 5.) Similarly, in the same sections of the opening memorandum in support of the Employment FI Motion, plaintiff refers only to Employment FI Nos. 201.1, 201.2, 201.4, 201.6, 207.1, 211.1, and 216.1. The same problem persists with respect to the SI Motion and the RFP Motion. (See SI Motion at p. 3, ll. 19-22 & p. 6, ll. 10-11 [identifying SI Nos. 5, 7, 8, 12, 22, 24, 26-28, 39, 40, 46-54, 63, and 76]; RFP Motion at p. 3, ll. 19-24 & p. 5, ll. 12-15 [identifying RFP Nos. 26, 28, 40, 47, 50, 59, 63 & 64].) These examples are intended to be illustrative but not exhaustive.

As the notices fail to identify the specific discovery requests at issue in each of the motions, the motions fail to comply with Code of Civil Procedure section 1010, and California Rules of Court, rules 3.1110(a) and 3.1345(d). In addition, based on the deficiencies further discussed above, the notices are insufficient and ineffective to sufficiently define the issues with respect to the discovery requests at issue in each motion for the information and attention of both NNI and the court. For these reasons, plaintiff has failed to give proper and sufficient notice of the motions as required by Code of Civil Procedure sections 1010, 2030.300, and 2031.310. (Golf & Tennis Pro Shop, Inc. v. Superior Court (2022) 84 Cal.App.5th 127, 137-138.)

Though the court may overlook the omissions in the notices of the motions to the extent the supporting papers clearly state the grounds for relief and NNI has not objected to the form of the notices (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125; Lencioni v. Dan (1954) 128 Cal.App.2d 105, 108), the separate statements submitted in support of the motions are also deficient.

A separate statement filed with a discovery motion “must be full and complete so that no person is required to review any other document in order to determine the full request and the full response.” (Cal. Rules of Court, rule 3.1345(c).) For each discovery request to which a further response is requested, the separate statement must include, in addition to the text of the request, “the text of each response, answer, or objection, and any further responses or answers” and “the text of all definitions, instructions, and other matters required to understand each discovery request and the responses to it[.]” (Cal. Rules of Court, rule 3.1345(c)(2) & (4).)

The separate statements submitted in support of the motions include capitalized terms but do not include the text of the definitions of these terms. For example, Employment FI No. 201.1 includes the capitalized terms “EMPLOYEE” and “TERMINATION”. (Employment FI Motion Sep. Stmt. at p. 2.) However, the separate statement does not include the definitions of these terms. This is a significant omission because the NNI has asserted an objection to Employment FI No. 201.1 based on what NNI contends are legal terms of art included within the definition of “EMPLOYEE”. (See Employment FI Motion Sep. Stmt. at p. 2, ll. 11-14.) In addition, the parties dispute whether, for purposes of a sufficient or proper response, plaintiff was terminated or resigned. (Id. at p. 2, l. 25-p. 3, l. 11.) Though plaintiff offers information regarding the definition of the term “TERMINATION” in the reasons why a further response to Employment FI No. 201.1 should be compelled, it is unclear whether this information includes the full text of the definition at issue.

By way of further example, SI No. 3 includes the terms “STRUCTURE OF NORMAN’S NURSERY, INC.” without providing the text of the definition of these terms. (See SI Motion Sep. Stmt.at p. 2, ll. 2-7.) For the same reasons further discussed above, the court cannot determine whether the objections to SI No. 3 asserted by NNI or the reasons to compel a further response to SI No. 3 proffered by plaintiff are meritorious.

The examples provided above are not intended to be exhaustive. The same problems persist within the separate statements filed with General FI Motion and the RFP Motion. (See, e.g., RFP Motion Sep. Stmt. at p. 2, ll. 3-5; p. 5, ll. 17-19; p. 6, ll. 24-27; p. 7, l. 28; p. 9, ll. 2-3; General FI Motion at p. 2.)

In addition, as further discussed above, the parties do not dispute that NNI provided original and supplemental responses to the discovery requests, and further supplemental responses to the Employment FI and the RFP. However, the separate statements filed with each of the motions do not include the text of the original, supplemental, and further supplemental responses served by NNI.

For example, the separate statement filed with the General FI Motion appears to include only the supplemental response of NNI to General FI No. 15.1, but not the original response served by NNI on July 14, 2023. The same deficiency appears in the separate statements filed with the SI Motion and the RFP Motion, which also appear to include only the supplemental responses of NNI but omit the original responses of NNI and the further supplemental responses of NNI to the RFP. With respect to the separate statement filed with the Employment FI Motion, without reviewing other documents, it is unclear to the court whether the “responses” identified by plaintiff in are the original, supplemental, or further supplemental responses of NNI to the Employment FI.

There also exist additional substantive problems with the RFP Motion. A motion to compel further responses to a demand for production of documents must “set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1); Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.) “[U]nless there is a legitimate privilege issue or claim of attorney work product, [the] burden [of showing good cause for the request] is met simply by a fact-specific showing of relevance.” (TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 448; see also Code Civ. Proc., § 2017.010.)

Wholly absent from the separate statement filed with the RFP Motion and the memorandum in support of the RFP Motion is any reasoned factual or legal argument demonstrating good cause for the RFP at issue. Therefore, plaintiff has failed to meet his burden to demonstrate good cause for the discovery sought in the RFP.

The failure of plaintiff to include in each separate statement the text of all definitions and the text of each response of NNI to the discovery requests, including the text of each supplemental or further supplemental responses by NNI, forces the court to review other documents to determine the full text of and the full response to each discovery request. Plaintiff’s failure to include all required information in the separate statements also forces the court to expend scarce judicial resources to determine the merits of the motions. In addition, for all reasons discussed above, the nonconforming separate statements violate California Rules of Court, rule 3.1345(c)(2) & (4). Plaintiff has also failed to demonstrate good cause for each RFP at issue in the RFP Motion. Therefore, and for all reasons discussed above, the court will deny the motions of plaintiff. (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 892-893.)