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This case was last updated from Los Angeles County Superior Courts on 11/29/2019 at 13:31:32 (UTC).

ELOISA MARTINEZ VS SNACKERZ, INC. , ET AL.

Case Summary

On 01/28/2019 ELOISA MARTINEZ filed a Labor - Other Labor lawsuit against SNACKERZ, INC . This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is GREGORY KEOSIAN. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******2674

  • Filing Date:

    01/28/2019

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Other Labor

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

GREGORY KEOSIAN

 

Party Details

Plaintiff

MARTINEZ ELOISA

Defendants

SNACKERZ INC.

EMRANI RONEN

Attorney/Law Firm Details

Plaintiff Attorneys

MOORADIAN ZORIK

KAMBERIAN NANOR CHRISTINE

Defendant Attorneys

KAHANA AMIR MOSHE

ATTAL AVI MORRIS

YU DAVIS DONG

 

Court Documents

Notice - NOTICE OF ERRATA RE PLAINTIFFS FIRST AMENDED COMPLAINT

11/14/2019: Notice - NOTICE OF ERRATA RE PLAINTIFFS FIRST AMENDED COMPLAINT

Case Management Order

9/10/2019: Case Management Order

Notice of Posting of Jury Fees

9/10/2019: Notice of Posting of Jury Fees

Opposition - OPPOSITION NOTICE OF NON-OPPOSITION

8/8/2019: Opposition - OPPOSITION NOTICE OF NON-OPPOSITION

Notice Re: Continuance of Hearing and Order

8/14/2019: Notice Re: Continuance of Hearing and Order

Notice of Change of Address or Other Contact Information

8/14/2019: Notice of Change of Address or Other Contact Information

Notice Re: Continuance of Hearing and Order

8/14/2019: Notice Re: Continuance of Hearing and Order

Motion to Strike (not anti-SLAPP) - without Demurrer

5/31/2019: Motion to Strike (not anti-SLAPP) - without Demurrer

Notice of Change of Address or Other Contact Information

5/22/2019: Notice of Change of Address or Other Contact Information

Case Management Statement

5/22/2019: Case Management Statement

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

5/24/2019: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

Declaration - DECLARATION OF DEMURRING OR MOVING PARTY IN SUPPORT OF AUTOMATIC EXTENSION

5/1/2019: Declaration - DECLARATION OF DEMURRING OR MOVING PARTY IN SUPPORT OF AUTOMATIC EXTENSION

Notice Re: Continuance of Hearing and Order

4/23/2019: Notice Re: Continuance of Hearing and Order

Case Management Statement

4/9/2019: Case Management Statement

Proof of Personal Service

4/2/2019: Proof of Personal Service

Proof of Personal Service

4/2/2019: Proof of Personal Service

Notice of Case Assignment - Unlimited Civil Case

1/28/2019: Notice of Case Assignment - Unlimited Civil Case

Complaint

1/28/2019: Complaint

15 More Documents Available

 

Docket Entries

  • 03/30/2021
  • Hearing03/30/2021 at 09:00 AM in Department 61 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 03/22/2021
  • Hearing03/22/2021 at 09:00 AM in Department 61 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 01/22/2021
  • Hearing01/22/2021 at 09:00 AM in Department 61 at 111 North Hill Street, Los Angeles, CA 90012; Post-Mediation Status Conference

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  • 11/22/2019
  • DocketAnswer; Filed by Snackerz, Inc. (Defendant); Ronen Emrani (Defendant)

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  • 11/14/2019
  • DocketNotice ( OF ERRATA RE PLAINTIFFS FIRST AMENDED COMPLAINT); Filed by Eloisa Martinez (Plaintiff)

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  • 09/17/2019
  • DocketAmended Complaint; Filed by Eloisa Martinez (Plaintiff)

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  • 09/17/2019
  • DocketAmended Complaint (1st); Filed by Eloisa Martinez (Plaintiff)

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  • 09/10/2019
  • Docketat 09:00 AM in Department 61, Gregory Keosian, Presiding; Hearing on Motion to Strike (not anti-SLAPP) - without Demurrer - Held

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  • 09/10/2019
  • Docketat 09:00 AM in Department 61, Gregory Keosian, Presiding; Case Management Conference - Held

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  • 09/10/2019
  • DocketNotice of Posting of Jury Fees; Filed by Snackerz, Inc. (Defendant); Ronen Emrani (Defendant)

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18 More Docket Entries
  • 04/09/2019
  • DocketCase Management Statement; Filed by Eloisa Martinez (Plaintiff)

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  • 04/04/2019
  • Docketat 09:00 AM in Department 61, Gregory Keosian, Presiding; Order to Show Cause Re: Failure to File Proof of Service - Not Held - Taken Off Calendar by Court

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  • 04/02/2019
  • DocketProof of Personal Service; Filed by Eloisa Martinez (Plaintiff)

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  • 04/02/2019
  • DocketProof of Personal Service; Filed by Eloisa Martinez (Plaintiff)

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  • 02/20/2019
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 02/20/2019
  • DocketOrder to Show Cause Failure to File Proof of Service; Filed by Clerk

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  • 01/28/2019
  • DocketSummons (on Complaint); Filed by Eloisa Martinez (Plaintiff)

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  • 01/28/2019
  • DocketComplaint; Filed by Eloisa Martinez (Plaintiff)

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  • 01/28/2019
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 01/28/2019
  • DocketCivil Case Cover Sheet; Filed by Eloisa Martinez (Plaintiff)

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Tentative Rulings

Case Number: 19STCV02674    Hearing Date: April 14, 2021    Dept: 61

I. MOTION TO QUASH DEPOSITION NOTICE

“[A] party may also move for an order staying the taking of the deposition and quashing the deposition notice. This motion shall be accompanied by a meet and confer declaration under Section 2016.040. The taking of the deposition is stayed pending the determination of this motion.” (Code Civ. Proc., § 2025.410, subd. (c).)

Plaintiff moves for an order quashing the deposition notice served upon on her on February 21, 2021. (Motion at p. 2.) Plaintiff objects that her deposition was already taken on May 22, 2019, and that a natural person cannot be deposed more than once under Code of Civil Procedure § 2025.610. (Motion at pp. 3–4.)

This argument is erroneous. According to the deposition transcripts submitted with Plaintiff’s own motion, the deposition was not concluded on May 22, 2019, but suspended and continued by a stipulation of the parties. (Motion Exh. B.) Although the discussions at the time of deposition contemplated that meet-and-confer efforts would occur in the days immediately following that deposition session, there was no dispute that the deposition was incomplete and that its suspension was merely temporary. (Ibid.) Because the deposition was never concluded, Plaintiff cannot rely on Code of Civil Procedure § 2025.610.

Nor can Plaintiff rely on the seven-hour deposition limitation set forth in Code of Civil Procedure § 2025.290, subd. (a), as that restriction does not apply “[t]o any case brought by an employee or applicant for employment against an employer for acts or omissions arising out of or relating to the employment relationship. (Code Civ. Proc. § 2025.290, subd. (b)(4).)

The only respect in which the new deposition notice is improper is that, despite purporting to be a continuance of a suspended deposition, it seeks yet another production of documents. (Motion Exh. A.) This is improper, because although a deposition may, by stipulation of the parties, be suspended to be continued at a later date (Code Civ. Proc. § 2025.470), there is no authority providing for a subsequent request for production except with the initial notice of deposition. (Code Civ. Proc. § 2025.220, subd. (a)(4).) Accordingly, the motion may be granted in this respect.

Plaintiff in reply raises a number of other unpersuasive arguments. That her own motion is moot as the appointed date for the continued deposition has passed; that the opposition was not received until Monday, April 5; and that Defendant has not met and conferred about the new deposition. (Reply at pp. 2–5.)

None of these arguments are persuasive. The motion is not moot, as in the absence of an order quashing the notice Defendant may bring a motion to compel Plaintiff’s attendance under Code of Civil Procedure § 2025.450, subd. (a). Moreover, although Plaintiff argues that the opposition was untimely served, Plaintiff articulates no prejudice resulting from the delay. Moreover, the opposition is unnecessary, as Plaintiff’s own moving papers fail to make a persuasive case for the relief obtained.

And finally, Defendant has not met and conferred because Defendant is not the one seeking judicial intervention in this matter. Plaintiff argues that the parties agreed at the deposition to confer about scheduling future deposition sessions, and that the almost-two-year delay since that time ought to prevent the deposition’s resumption. But Plaintiff presents no authority for this argument, and there is no reason why a deposition, unfinished and continued by the consent of the parties, ought not to be resumed at a later date without prejudice to anyone concerned.

To the extent that Plaintiff means that Defendant noticed the date of the continued deposition without consulting on dates of availability, this too is unpersuasive. Plaintiff’s own meet-and-confer correspondence did not name availability or scheduling as an obstacle to the continued deposition, but rather stood on the unpersuasive arguments raised in the present motion. (Mooradian Decl. Exh. E.) There is no reason to believe that the parties here cannot meet and confer as to an appropriate date to continue the deposition.

The motion is therefore GRANTED as to the document categories contained in the second deposition notice. The motion is otherwise DENIED.

I. SANCTIONS

“The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to quash a deposition notice, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2025.410, subd. (d).)

Plaintiff here seeks $2,900.00 in sanctions representing 4.6 hours of attorney work at $650 per hour. (Mooradian Decl. ¶ 11.) Defendant asks for $3,900 in sanctions, representing six hours of attorney work at $650 per hour. (Pessah Decl. ¶ 10.)

No award of sanctions is appropriate here, as both parties have partially prevailed on this motion.

Case Number: 19STCV02674    Hearing Date: April 12, 2021    Dept: 61

Defendant Snackerz, Inc.’s Motions to Compel Further Responses to Form Interrogatories (General) Set Two and Requests for Production, Set Two, from Plaintiff Eloisa Martinez are GRANTED as to Form Interrogatory No. 17.1 and Requests for Production 54–58. The motion is DENIED as to Requests for Production No. 59–61.

Defendant Ronen Emrani’s Motion to Compel Further Responses to Request for Production, Set One, from Plaintiff Eloisa Martinez is GRANTED as to Requests for Production No. 1–17.

No sanctions are awarded.

Defendants to give notice.

I. MOTIONS TO COMPEL FURTHER

“Any party may obtain discovery . . . by propounding to any other party to the action written interrogatories to be answered under oath.” (Code Civ. Proc., § 2030.010(a).) If a propounding party is not satisfied with the response served by a responding party, the former may move the court to compel further interrogatory responses. (Code Civ. Proc., § 2030.300; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403.) The propounding party must demonstrate that the responses were incomplete, inadequate or evasive, or that the responding party asserted objections that are either without merit or too general. (Code Civ. Proc., § 2030.300(a)(1)–(3); Sinaiko Healthcare Consulting, Inc., supra, 148 Cal.App.4th at 403.)

A propounding party may demand a responding party to produce documents that are in their possession, custody or control. (Code Civ. Proc., § 2031.010.) A party may likewise conduct discovery by propounding interrogatories to another party to be answered under oath. (Code Civ. Proc. § 2030.010, subd. (a).) The responding party must respond to the production demand either by complying, by representing that the party lacks the ability to comply, or by objecting to the demand. (Code Civ. Proc., § 2031.210.) The responding party must respond to the interrogatories by answering or objecting. (Code Civ. Proc. § 2030.210, subd. (a).) If the responding party fails to serve timely responses, the propounding party may move for an order compelling responses to the production demand and interrogatories. (Code Civ. Proc., §§ 2030.290, 2031.300.)

Snackerz moves to compel further responses to Form Interrogatory No. 17.1 and Requests for Production No. 1–17 and 54–61.

Plaintiff argues that the present motions are defective because service of the discovery via email was improper. (Opposition at pp. 6–7.) In Plaintiff’s words, “Because Defendants’ discovery was not effectually served, Plaintiff was under no legal obligation to comply with the rules that govern responses to properly served discovery.” (Opposition at p. 7.)

This argument is unpersuasive. Plaintiff was not obliged to respond to discovery served in a defective manner, and defective service may accordingly provide a defense against a motion to compel, which tests only whether the party propounding discovery is owed a response. (Code Civ. Proc. §§ 2030.290; 2031.300; see Dalessandro v. Mitchell (2019) 43 Cal.App.5th 1088, 1091 [affirming denial of motion to compel where no postage was affixed to the envelope containing the discovery as required by statute].)

The situation is different with motions to compel further, which concern the sufficiency of the responses and objections actually given. (Code Civ. Proc. §§ 2030.300; 2031.310.) While defects in service might arguably furnish a basis for a written objection, and thus a suitable matter for adjudication in a motion to compel further, Plaintiff’s responses here contained no such objections. To the extent that defective service of discovery might furnish a basis to object to a motion to compel further based on responses that Plaintiff has already provided, that objection has been waived. (See Stadish v. Superior Court (1999) 71 Cal.App.4th 1130, 1141 [party waived trade secret privilege by failing to assert it in its objections]; cf. ViaView, Inc. v. Retzlaff

The court thus may analyze the sufficiency of these responses. Form Interrogatory No. 17.1 asked Plaintiff to state the facts and evidence justifying its responses to requests for admission that were not unqualified admissions. Plaintiff provided objections and responses related to Requests for Admission No. 8–11. These requests asked Plaintiff to admit that she had no documents in her possession supporting her allegations that she was sexually harassed, that Snackerz failed to prevent this harassment, and that they lied to protect their employees. (See 2/17/2021 Mooradian Decl. Exh. J.)

Plaintiff’s response to Interrogatory No. 17.1 is deficient. The requests for admission concerned Plaintiff’s possession of documents supporting each identified contention. But Plaintiff provided no facts related to possession of documents, save for the response addressed to Request No. 9, which accused Snackerz of having sanitized their document production. Nor did Plaintiff identify any full names of witnesses, contact information for the witnesses identified, or a statement that she lacked such information under Code of Civil Procedure § 2030.220, subd. (c). A further response is warranted.

Requests No. 1–17 asked for documents supporting allegations in Plaintiff’s FAC, such as:

· that all corporate defendants are alter egos,

· that Emrani participated in or directed the discriminatory conduct alleged;

· that Plaintiff complained of harassment and discrimination on April 19, 2018;

· that a warning letter issued to Plaintiff was false; and

· that Emrani implemented wage-and-hour policies that violated specified statutes or the applicable Industrial Wage Order.

Requests No. 54–61 also asked for documents supporting allegations in the FAC, such as the following allegations:

· that Snackerz failed to prevent discrimination or harassment;

· that Snackerz concealed material facts about employee misconduct;

· that Defendants sexually harassed Plaintiff;

Request No. 58 asks for documents relating to medical consultations for injuries that Plaintiff attributes to the conduct alleged in the FAC, while Requests No. 59–61 ask for documents related to one “Yolanda,” whose pertinence to this case is not specified.

Plaintiff responded to each of these requests with identical boilerplate objections:

Objections. Attorney client communications, work product and expert disclosure privileges and protections; otherwise, equally available, oppressive, burdensome, and previously requested and produced. Exclusive of the records protected by said objections and without waiver thereof, have already been produced or withheld from production by Defendants.

(Separate Statement.)

The court finds that Requests No. 1–17 and 54–58 are supported by good cause. Plaintiff in opposition makes no attempt to defend her objections on the merits, or to support the contention that all responsive documents have actually been produced.

Requests No. 59–61, however, are not supported by good cause, as Defendants’ moving papers do not explain the relevance of “Yolanda” to the facts of this case.

The motions to compel further are therefore GRANTED as to Form Interrogatory No. 17.1 and Requests for Production No. 1–17 and 54–58. The motion is DENIED as to Request for Production No. 59–61.

II. SANCTIONS

Statute provides that the court shall impose sanctions upon a party who unsuccessfully makes or opposes a motion to compel further response to interrogatories or requests for production of documents, absent substantial justification otherwise. (Code Civ. Proc. §§ 2030.300, subd. (d); 2031.310, subd. (h).)

Emrani asks for $1,300 in sanctions, representing two hours of attorney work at $650 per hour. (Pessah Decl. ¶¶ 15–16.)

Snackerz asks for $1,300 in sanctions on the same basis in connection with its interrogatory motion, plus $8,680.00 in connection with its documents motion, representing 10.4 hours of attorney work at $650 per hour plus 4.8 hours by attorney Michael Morris-Nussbaum at $400 per hour. (Pessah Decl. ¶¶ 15–16.)

The court finds that sanctions are not appropriate here. Plaintiff’s objections based on service raise a novel question, and Snackerz only prevailed in part on its motion to compel further responses to requests for production.

Case Number: 19STCV02674    Hearing Date: March 01, 2021    Dept: 61

Defendants Snackerz, Inc. and Ronen Emrani’s Motions to Compel Responses to Requests for Production, and Form and Special Interrogatories and Deem Reqeusts for Admission Admitted are DENIED.

  1. MOTIONS TO COMPEL

A propounding party may demand a responding party to produce documents that are in their possession, custody or control. (Code Civ. Proc., § 2031.010.) A party may likewise conduct discovery by propounding interrogatories to another party to be answered under oath. (Code Civ. Proc. § 2030.010, subd. (a).) The responding party must respond to the production demand either by complying, by representing that the party lacks the ability to comply, or by objecting to the demand. (Code Civ. Proc., § 2031.210.) The responding party must respond to the interrogatories by answering or objecting. (Code Civ. Proc. § 2030.210, subd. (a).) If the responding party fails to serve timely responses, the propounding party may move for an order compelling responses to the production demand and interrogatories. (Code Civ. Proc., §§ 2030.290, 2031.300.)

A party who fails to serve a timely response to interrogatories or a demand for inspection waives any objection to the demand. (Code Civ. Proc., §§ 2030.290, 2031.300.)

Likewise, “[a]ny party may obtain discovery . . . by a written request that any other party to the action admit the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact. A request for admission may relate to a matter that is in controversy between the parties.” (Code Civ. Proc., § 2033.010.) If a party fails to serve a timely response to requests for admissions, “[t]he requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction” (Code Civ. Proc., § 2033.280 subd. (b).)

The present motions are a dispute over email service. Defendants offer email correspondence from Plaintiff’s counsel (email addresses nkamberian@gmail.com and mooradianlaw@gmail.com) dated August 12 and October 12, 2020, regarding other matters in the case, but which contained red text below the main body of the email stating as follows:

As a result of CORONAVIRUS pandemic and local, state and federal regulations in place, we will operate on a remote basis. Therefore, effective immediately, our office can only send and receive documents (that may otherwise be served by mail, e.g., pleadings, discovery, motions) by electronic service pursuant to Code of Civil Procedure section 1010.6. Unless there is already in place a Court Order for electronic service, as a courtesy, and to ensure no one is prejudiced by this action, we agree to extend any period of notice, or any right to act or make any response within any period or on a date certain after service of the document, which time or date is prescribed by statute or rule of court, by five calendar days rather than the two court days authorized by section 1010.6(4)(B), unless the two court days authorized by section 1010.6(4)(B) is longer, in which case the two court day extension will apply. Wishing you the best of health. Be safe!

(Motion Exh. C.)

Defendants served the discovery at issue here on October 12, 2020, upon the email address “mooradianlaw@gmail.com. (Motion Exh. F.) They received no timely responses, and on November 20, 2020, they sent another email regarding the status of the requests. (Pessah Decl. ¶ 8.) Plaintiff’s counsel sent a responsive email that day, arguing that they had not agreed to accept service of discovery by email, and requesting that the discovery be served formally by mail. (Motion Exh. G.)

Defendants thus argue that service was accomplished by email according to the express invitation of Plaintiff’s counsel, but Plaintiff’s counsel thereafter denied ever having consented to such procedures.

Code of Civil Procedure § 1010.6 states as follows:

For cases filed on or after January 1, 2019, if a document may be served by mail, express mail, overnight delivery, or facsimile transmission, electronic service of the document is authorized if a party or other person has expressly consented to receive electronic service in that specific action, the court has ordered electronic service on a represented party or other represented person under subdivision (c) or (d), or the document is served electronically pursuant to the procedures specified in subdivision (e). Express consent to electronic service may be accomplished either by (I) serving a notice on all the parties and filing the notice with the court, or (II) manifesting affirmative consent through electronic means with the court or the court's electronic filing service provider, and concurrently providing the party's electronic address with that consent for the purpose of receiving electronic service. The act of electronic filing shall not be construed as express consent.

(Code Civ. Proc. § 1010.6, subd. (a)(2)(A)(ii).)

This section does not provide a basis for finding service proper here. Although the language in Defendants’ emails suggests consent to electronic service in general, the above statute specifically defines “express consent” to be notice served on all parties and filed with the court in a specific action, which was not conducted here.

Defendants rely instead on California Rules of Court, Emergency Rule 12, now codified at Code of Civil Procedure § 1010.6, subd. (e), which states that:

A party represented by counsel, who has appeared in an action or proceeding, must accept electronic service of a notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission. Before first serving a represented party electronically, the serving party must confirm by telephone or email the appropriate electronic service address for counsel being served.

(CRC Emergency Rule 12, subd. (b)(1); see Code Civ. Proc. § 1010.6, subd. (e)(1).) Defendants further point to Presiding Judge Kevin Brazile’s general order of October 9, 2020, ordering parties to accept electronic service pursuant to the above rule. (Motion Exh. A.)

Plaintiff in opposition argues that no service was accomplished even according to the above emergency rule, because that rule states that prior to service, a party must “confirm by telephone or email the appropriate electronic service address for counsel being served,” which did not occur here before Defendants served discovery. (Opposition at pp. 6–7.) Plaintiff argues that any actual conference regarding proper email addresses would have revealed the necessity of including Nanor Kamberian in any email service, as she is responsible for maintaining the electronically served calendar for the office of Plaintiff’s counsel. (Opposition at p. 7.) Plaintiffs note that the gmail address upon which discovery was served, although evidently used for correspondence, does not appear on the caption page for any of Plaintiff’s pleadings or papers in this case, and other email addresses, including Kamberian’s, do appear. (See 3/17/2020 Reply.)

Moreover, Plaintiff argues that discovery responses have been served as of January 25, 2021, albeit with objections. (Opposition Exhs. D–M.)

Plaintiffs have the better of the arguments here. Although electronic service is available to parties — now more than ever in the wake of the ongoing pandemic — such service requires certain procedural prerequisites before it can be effected. Even under the emergency rules for electronic service, it remains the burden of the party serving the documents to confirm by phone or email the proper address for service of the documents at issue. Here, while form language underneath certain emails of Plaintiff’s counsel suggested that they were amenable to electronic service, said language ought to have been an invitation to confirm the appropriate address upon which to serve discovery, which was not done here. Because service of discovery was not properly effected, there is no basis to grant the motions here.

The motions are DENIED. No sanctions are awarded.

Case Number: 19STCV02674    Hearing Date: July 16, 2020    Dept: 61

Plaintiff Eloisa Martinez’s Motion to Compel Further Responses to Requests for Production is GRANTED as to Requests No. No. 6–9, 11–16, 19–25, 27, 28, 30–33, 37–40, 42, 43, 48, 52–56, 58, 59, 64, and 65, subject to the parties’ agreement as to an appropriate opt-out notice procedure for affected employees, and DENIED as to Requests No. 1–5, 10, 17, 18, 26, 29, 34–36, 41, 44–47, 49–51, 57, and 60–63. No sanctions are awarded.

  1. MOTION TO COMPEL— DOCUMENTS

A propounding party may demand a responding party to produce documents that are in their possession, custody or control. (Code Civ. Proc., § 2031.010.) A party may likewise conduct discovery by propounding interrogatories to another party to be answered under oath. (Code Civ. Proc. § 2030.010, subd. (a).) The responding party must respond to the production demand either by complying, by representing that the party lacks the ability to comply, or by objecting to the demand. (Code Civ. Proc., § 2031.210.) The responding party must respond to the interrogatories by answering or objecting. (Code Civ. Proc. § 2030.210, subd. (a).) If the responding party fails to serve timely responses, the propounding party may move for an order compelling responses to the production demand and interrogatories. (Code Civ. Proc., §§ 2030.290, 2031.300.)

Martinez moves to compel further responses to Requests No. 1–66, contending that Snackerz promised production of documents with respect to Requests No. 1–5, 10, 17, 18, 26, 29, 34–36, 41, 44–47, 49–51, 57, 60–63, but hasn’t produced, and that Snackerz provided only objections in response to Requests No. 6–9, 11–16, 19–25, 27, 28, 30–33, 37–40, 42, 43, 48, 52–56, 58, 59, 64, 65. (Separate Statement.) Snackerz objects that Martinez failed to meet and confer, and that it is willing to provide additional responses subject to a Belaire-West notice to affected employees. (Opposition at pp. 2–6.)

Snackerz notes that the parties agreed on January 14, 2020, to engage in three weeks of settlement discussions with an additional two weeks to meet and confer on discovery. (Attal Decl. Exh. 4.) But Martinez sent another email on February 10, 2020, stating, “Let’s add another two weeks for the negotiations and two weeks for the discovery motions, with a deadline of March 2, 2020. (Attal Decl. Exh. 5.) On February 12, Martinez sent another email, in which he stated that no response had been given to the previous email and that the “meet and confer deadline is next Wednesday, March 19th.” (Attal Decl. Exh. 6.) Snackerz claims to have relied upon this email in failing to respond to Martinez’s discovery demands before they filed the present motion on February 19, 2020, which they thought evidenced an agreement to continue meet-and-confer efforts into March. (Opposition at pp. 2–4.)

Snackerz’s argument is without merit. The purported new March deadline was based on a response from Snackerz, which was not given. The second email stating the deadline was March 19 was a typo, as it was sent on February 12, and clearly referred to the deadline as “next Wednesday,” which is when the instant motion was filed. Before the deadline, Martinez sent an email to Snackerz outlining her problems with its discovery responses, but the record reveals no response to these concerns. Accordingly, the motion will not be denied for failure to meet and confer.

The motion will be DENIED, however, as to Requests No. 1–5, 10, 17, 18, 26, 29, 34–36, 41, 44–47, 49–51, 57, and 60–63. Snackerz in these responses offered objections followed by a statement of compliance to which Martinez offers no objection; rather, Martinez objects to Snackerz’s failure to provide documents in conformity with the statements of compliance that it offered. (See Separate Statement.) The procedural vehicle that Martinez has chosen, a motion to compel further, is available where a statement of compliance is incomplete, a representation of inability to comply is evasive, or where an objection is without merit. (Code Civ. Proc. § 2031.310, subd. (a)(1)–(3).) But where the party responding to discovery has provided a statement of compliance, and the defect that the propounding party seeks to address is the failure to actually provide the documents requested, there is a separate motion available under Code of Civil Procedure § 2031.320 to move to compel the responding party to produce in conformity with its statement of compliance. (Code Civ. Proc. § 2031.310, subd. (a).) Because Martinez’s motion as to Requests No. . 1–5, 10, 17, 18, 26, 29, 34–36, 41, 44–47, 49–51, 57, and 60–63 falls into this latter category, the motion must be DENIED as to these requests.

The remaining discovery at issue is supported by good cause. Although the requests are voluminous, they concern documents related to either Martinez’s employment in particular or to similarly situated Snackerz employees and Snackerz’s pay and leave policies in relation to those employees, which are on all fours with the allegations in the Complaint. But Snackerz objects that these requests concern the personnel records of other employees, and argues that their privacy interests must be protected. (Opposition at pp. 4–6.)

In determining whether privacy interests warrant restricting discovery, the court must perform a balancing of interests: “If there is a reasonable expectation of privacy and the invasion of privacy is serious, then the court must balance the privacy interest at stake against other competing or countervailing interests, which include the interest of the requesting party, fairness to the litigants in conducting the litigation, and the consequences of granting or restricting access to the information.” (Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1251.)

Employees indeed have a privacy interest in their personnel records. . (Puerto, supra, 158 Cal.App.4th at p. 1252–53 [holding that employees have right to privacy against employer disclosure of contact information to third parties].) But this right is not a bulwark against discovery in civil actions against the employer by their fellow employees. Especially in PAGA cases, like this one, plaintiff employees are allowed to inquire in to the policies and records related to their fellows, and the right to privacy in personnel records is mitigated to allow for same. (See Williams v. Superior Court (2017) 3 Cal.5th 531, 553 [“In wage and hour collective actions, fellow employees would not be expected to want to conceal their contact information from plaintiffs asserting employment law violations, the state policies in favor of effective enforcement of these laws weigh on the side of disclosure, and any residual privacy concerns can be protected by issuing so-called Belaire-West notices affording notice and an opportunity to opt out from disclosure.”].) The way to safeguard the privacy of other employees is not to prevent discovery, but to offer the affected third parties an opportunity to object via what is known as a Belaire-West notice. (Id. at p. 554­–55.)

Snackerz proposes adopting this procedure, and evidently proposed its use during a telephone meeting on January 14, 2020. (Attal Decl. Exh. 10.) Martinez in Reply argues that no such notice is necessary because Snackerz has represented that the class of affected employees is limited to eight people. (Reply at p. 3.) But Martinez produces no authority for the proposition that the privacy interest of any class of aggrieved employee is proportional to the size of the class. Moreover, an opt-out notice of some kind would be necessary for the discovery at issue here, which seeks more than simply employee contact information, but rather a variety of records.

The Motion to Compel Further is therefore GRANTED as to Requests No. No. 6–9, 11–16, 19–25, 27, 28, 30–33, 37–40, 42, 43, 48, 52–56, 58, 59, 64, and 65, subject to the parties’ agreement as to an appropriate opt-out notice procedure for affected employees. No sanctions are awarded.

Defendants to give notice.

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