On 07/24/2017 SAIF HUSSAIN filed a Labor - Wrongful Termination lawsuit against LOS ANGELES COUNTY UNIFIED SCHOOL DISTERICT. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is DEIRDRE HILL. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
CHRYSILIOU CHRISTOS ELIA
LOS ANGELES COUNTY BOARD OF EDUCATION
LOS ANGELES COUNTY UNIFIED SCHOOL
MOGHADAM PEYMAN SOROOSH
DOES 1 TO 100
LAUSD PERSONNEL COMMISSION
LOS ANGELES UNIFIED SCHOOL DISTRICT
SHEGERIAN CARNEY R. ESQ.
SHEGERIAN CARNEY R.
OFFICE OF THE GENERAL COUNSEL
HILL CHARLIE LEE
6/7/2018: DEFENDANTS' ANSWER TO SECOND AMENDED COMPLAINT FOR DAMAGES
6/12/2018: Minute Order
3/1/2019: Minute Order
4/3/2019: Minute Order
1/31/2018: PLAINTIFF SAIF HUSSAIN'S OPPOSITION TO DEFENDANTS' DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT MEMORANDUM OF POTHTS AND AUTHORITIES
1/5/2018: DEFENDANTS' DEMURRER TO FIRST AMEND1) COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF CHARLIE HILL
11/3/2017: Minute Order
11/9/2017: Minute Order
11/21/2017: DEFENDANT LOS ANGELES UNIFIED SCHOOL DISTRICT'S NOTICE OF UNAVAILABILITY FROM DECEMBER 18, 2017 THROUGH JANUARY 2,2018
11/14/2017: NOTICE OF UNAVAILABILITY OF COUNSEL
9/29/2017: DEFENDANTS' DEMURRER TO COMPLAINT; ETC.
8/22/2017: PROOF OF SERVICE OF SUMMONS
8/8/2017: ORDER TO SHOW CAUSE HEARING
8/4/2017: AMENDMENT TO COMPLAINT
at 08:30 AM in Department 49; Hearing on Motion for Summary Adjudication - Not Held - Taken Off Calendar by PartyRead MoreRead Less
at 08:30 AM in Department 49; Hearing on Ex Parte Application (to Continue Trial Dates) - Held - Motion GrantedRead MoreRead Less
at 08:30 AM in Department 49; Status Conference (RE MED. COMPL./CLOSURE OF PLEADINGS;) - HeldRead MoreRead Less
Minute Order ( (Status Conference RE MED. COMPL./CLOSURE OF PLEADINGS;; Heari...)); Filed by ClerkRead MoreRead Less
at 08:30 AM in Department 49; Hearing on Ex Parte Application (to Continue Trial Dates) - Held - ContinuedRead MoreRead Less
Minute Order ( (Hearing on Ex Parte Application to Continue Trial Dates)); Filed by ClerkRead MoreRead Less
Ex Parte Application (Ex Parte Application); Filed by Christos Elia Chrysiliou (Defendant); Talal Balaa (Defendant); Peyman Soroosh Moghadam (Defendant) et al.Read MoreRead Less
Notice (of Case Reassignment); Filed by Saif Hussain (Plaintiff)Read MoreRead Less
Notice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by ClerkRead MoreRead Less
at 08:30 AM in Department 49; Status Conference - Not Held - Continued - Court's MotionRead MoreRead Less
Partial Dismissal (w/o Prejudice); Filed by Saif Hussain (Plaintiff)Read MoreRead Less
REQUEST FOR DISMISSALRead MoreRead Less
AMENDMENT TO COMPLAINTRead MoreRead Less
Proof-Service/Summons; Filed by Saif Hussain (Plaintiff)Read MoreRead Less
Proof-Service/Summons; Filed by Saif Hussain (Plaintiff)Read MoreRead Less
PROOF OF SERVICE OF SUMMONSRead MoreRead Less
PROOF OF SERVICE OF SUMMONSRead MoreRead Less
Complaint; Filed by Saif Hussain (Plaintiff)Read MoreRead Less
SUMMONSRead MoreRead Less
PLAINTIFF'S COMPLAINT FOR DAMAGES FOR: (1) DISCRIMINATION IN VIOLATION OF FEHA; ETCRead MoreRead Less
Case Number: BC669368 Hearing Date: January 21, 2021 Dept: 49
Superior Court of California
County of Los Angeles
Los Angeles County Unified School District,
January 21, 2021Department 49, Judge Stuart M. Rice
(1) Plaintiff’s Motion to Compel Responses to Form Interrogatories
(2) Plaintiff’s Motion to Compel Further Responses to Requests for Admission
Moving Party: Plaintiff Saif Hussain
Responding Party: Defendant Los Angeles County Unified School District
Ruling: Plaintiff’s Motion to Compel Responses to Form Interrogatories is moot. Plaintiff’s request for sanctions is denied.
Plaintiff’s Motion to Compel Further Responses to Requests for Admission is granted as to requests 3-4, 5, 15-15, 20-23, 24, 26-27, 32, 42, 55, 56-61, 64 and 65, and denied as to requests 10, 16-19, 29 and 53.
The parties’ requests for sanctions are denied. Defendant is ordered to produce supplemental responses as set forth below without objections within twenty (20) days of this order.
In two motions, Plaintiff Saif Hussain (“Plaintiff”) moves for an order compelling Defendant to produce responses to his Form Interrogatories, Employment Law, Set One (“FROG”) and for an order compelling further responses to his Requests for Admission (“RFA”) served on Defendant Los Angeles Unified School District (“Defendant”).
Defense counsel declares that while the FROG were propounded on April 13, 2020, Plaintiff failed to include Defense counsel’s legal assistant. (Falchetti Decl. ¶ 3.) Falchetti also declares that: “responded to ten extensive meet and confer letters to other discovery responses for both the School District and the Individual Defendants, including the School District’s Responses to Form Interrogatories - General, Set Two, No. 15.1, which is essentially the same interrogatory as Employment Interrogatory 216.1, the discovery request at issue in the instant motion,” and that upon realizing the failure to respond “immediately addressed the matter, and determined that the “Set Two” Form Interrogatory had not been calendared because Plaintiff had not properly served it pursuant to our agreement to effectuate email service by including my secretary in all such emails.” (Id. ¶¶ 5, 7.)
RFA No. 5 asks Defendant to admit “that plaintiff Saif Hussain's termination in 2017 was a substantial factor in causing him harm.”
Again, Defendant’s opposition to these RFA does not focus on their vagueness or ambiguity, but rather asserts that “Defendant’s response was appropriate because Defendant had no way of confirming or denying whether or not, regardless of the cause, Plaintiff was ‘harmed’ in any way when his employment was terminated. Even if such a phrased (sic) were narrowed to a specific legally cognizable harm, Plaintiff has not provided medical records and the Defendant’s outstanding medical records subpoenas are still pending the court’s in camera review.” (Opp. 9:5-10.) If Defendant lacks knowledge, it should so assert.
The motion is granted as to RFA 4 and 5.
RFA No. 10 asks Defendant to admit “that plaintiff Saif Hussain did not have authority to make recommendations as to the hiring and discharging of employees that carried ‘particular weight’ while employed by defendant Los Angeles Unified School District.”
Defendant argues that the “ambiguous language concerning Plaintiff’s “authority to make recommendations” of hiring and firing, as well as the vague qualifier referring to employees that carried a “particular weight,” renders the Request unintelligible to admit or deny.” (Opp. 9:22-24.) Plaintiff remarks that such language is taken from Defendant’s own policies, and that Defendant should thus be able to respond. However, Code Civ. Proc. § 2033.060(d) and (e) provide that “[e]ach request for admission shall be full and complete in and of itself. No preface or instruction shall be included with a set of admission requests unless it has been approved under Chapter 17 (commencing with Section 2033.710),” and that “[a]ny term specially defined in a request for admission shall be typed with all letters capitalized whenever the term appears.”
Here, the RFA does not define the quoted term contained therein. While Defendant may be aware of the “particular weight” standard, the term is undefined and vague as included in RFA 10.
The motion is denied as to RFA 10.
RFA 14 and 15
RFA No. 14 asks Defendant to admit “that the October 2016 ‘performance evaluation’ given to plaintiff Saif Husain by defendant Peyman Soroosh Moghadam was null and void, because Moghadam was not considered Hussain's supervisor by the Los Angeles Unified School District.”
RFA No. 15 asks Defendant to admit “that the October 2016 ‘performance evaluation’ given to plaintiff Saif Husain by defendant Peyman Soroosh Moghadam should not be been used in relation to Hussain's employment with the Los Angeles Unified School District for any reason because Moghadam was not considered Hussain's supervisor by the Los Angeles Unified School District.”
Defendant responded by admitting that Plaintiff was informed that the performance evaluation given by Mr. Soroosh Moghadam was not going to be included in his personnel file as an official performance evaluation. Despite the argued vagueness of the RFA, Defendant has provided a response as to the relevance of the subject performance evaluation in relation to Plaintiff’s employment with Defendant. Nevertheless, Defendant’s admission is not responsive to the RFA. Defendant has not admitted nor denied whether the performance evaluation should not be used because the issuer was not Plaintiff’s supervisor.
The motion is granted as to RFA 14 and 15.
RFA 16 and 17
RFA No. 16 asks Defendant to admit “that - until January 13, 2017 - the only valid performance documentation that had been shown to plaintiff Saif Hussain had been positive.”
RFA No. 17 asks Defendant to admit “that - until January 13, 2017- the only valid performance documentation in plaintiff Saif Hussain's personnel files had been positive.”
In opposition, Defendant elaborates on its objection by arguing that “[t]his is a matter of opinion and argument, particularly as the only performance evaluation that the request indirectly refers to indicate a concern regarding excessive absences during Plaintiff’s probationary employment. Moreover, the term ‘valid performance documentation’ is itself vague.” (Opp 10:27-11:2.)
Ambiguity exists as to what constitutes “valid performance documentations.” Plaintiff’s citations to evidence in this action to demonstrate that Defendant purportedly knows the information which Plaintiff seeks are again unpersuasive for purposes of this motion. Defendant has not presently asserted a lack of knowledge of the underlying subject matter. As phrased, RFA 16 and 17 are vague.
The motion is denied as to RFA 16 and 17.
RFA 18 and 19
RFA No. 18 asks Defendant to admit “that the alleged ‘performance evaluation’ given to plaintiff Saif Hussain on or around October 7, 2016 criticized Hussain for having ‘excessive absens[es]’ in part because of Hussain taking time off for Eid al Adha on September 12, 2016” (brackets in original).
RFA No. 19 asks Defendant to admit “that the ‘performance evaluation’ given to plaintiff Saif Hussain on or around January 13, 2017 criticized Hussain for having ‘excessive absens[es]’ in part because of Hussain taking time off for Eid al Adha on September 12, 2016” (brackets in original).
Similar to RFA 16 and 17, Plaintiff engages in a string citation of evidence in the record which would demonstrate that Defendant possesses the information which Plaintiff seeks. Again, Defendant has not asserted a lack of knowledge. However, these RFA are not so vague as to become objectionable. Indeed, Defendant responded to RFA 18 as follows: “Defendant denies that the October 7, 2016 performance evaluation was intended to criticize Hussain for taking time off for a religious holiday.” Defendant responded to RFA 19 as follows: “Defendant denies that the January 13, 2017 performance evaluation was intended to criticize Hussain for taking time off for a religious holiday.” The responses are adequate.
The motion is denied as to RFA 18 and 19.
RFA No. 20 asks Defendant to admit “that the alleged ‘performance evaluation’ given to plaintiff Saif Hussain on or around October 7, 2016 criticized Hussain for having ‘excessive absens[es]’ in part because of Hussain taking approximately 21-hours off when he was suffering from bronchitis” (brackets in original).
RFA No. 21 asks Defendant to admit “that ‘performance evaluation’ given to plaintiff Saif Hussain on or around January 13, 2017 criticized Hussain for having ‘excessive absens[es]’ in part because of Hussain taking approximately 21-hours off when he was suffering from bronchitis” (brackets in original).
RFA No. 22 asks Defendant to admit “that the alleged ‘performance evaluation’ given to plaintiff Saif Hussain on or around October 7, 2016 criticized Hussain for having ‘excessive absens[es]’ in part because of Hussain taking time off after a major motor vehicle accident” (brackets in original).
RFA No. 23 asks Defendant to admit “that the ‘performance evaluation’ given to plaintiff Saif Hussain on or around January 13, 2017 criticized Hussain for having ‘excessive absens[es]’ in part because of Hussain taking time off after a major motor vehicle accident” (brackets in original).
Defendant responded by admitting that the performance evaluations criticized him for excessive absences but did not admit as to why. In its opposition, Defendant argues that it is unaware of the reasons behind Plaintiff’s absences because it does not possess such knowledge. These requests are not so ambiguous as to become unintelligible. RFA 20-23 seek an admission as to whether Plaintiff was criticized for the reasons underlying his absences. Defendant as Plaintiff’s employer should possess such knowledge and has not asserted that it does not.
The motion is granted as to RFA 20 through 23.
RFA No. 24 asks Defendant to admit “that plaintiff Saif Hussain never officially ‘red tagged’ a structure - as the term issued by the District - when he was employed by defendant Los Angeles Unified School District.”
Neither term of the RFA is defined in the discovery propounded, and the terms “officially” and “as the term issued by the District” appear to internally conflict within the RFA. However, Defendant responded by admitting that Plaintiff did not have authority to officially “red tag” a structure. This response undermines Defendant’s argument that it cannot comprehend what is requested by RFA 24. Defendant understands the RFA but has elected to respond to a question which was not asked. “A party may not deliberately misconstrue a question for the purpose of supplying an evasive answer. [Citation] Indeed, where the question is somewhat ambiguous, but the nature of the information sought is apparent, the proper solution is to provide an appropriate response.” (Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 783.)
The motion is granted as to RFA 24.
RFA 26 and 27
RFA No. 26 asks Defendant to admit “that Peter Ruppel resigned because he was not a good fit for the position for which he was hired.”
RFA No. 27 asks Defendant to admit “that Peter Ruppel resigned because he was overwhelmed in the position for which he was hired.”
Defendant did not admit nor deny this request but responded that “[i]t was reported to Defendants that Peter Ruppel had great difficulty working with Plaintiff and that Mr. Ruppel’s departure was influenced by Plaintiff’s behavior.” Again, Plaintiff does not appear to misunderstand the RFA as it so asserted in its objections. Rather, Defendant states that “[u]ltimately, only Ruppel knows the reason behind his resignation. Secondly, the extent of Defendant’s knowledge and understanding is reflected in Defendant’s response.” (Opp. 12:22-24.) If Defendant lacks knowledge to respond to the question, it shall so assert in compliance with Code Civ. Proc. § 2033.220(c).
The motion is granted as to RFA 26 and 27.
RFA 29, 32, 53, and 55
RFA No. 29 asks Defendant to admit “that plaintiff Saif Hussain was terminated on January 13, 2016.”
RFA No. 32 asks Defendant to admit “that plaintiff's notice of unsatisfactory service utilized information from the performance evaluation issued by Peyman Soroosh Moghadam on or around October 7, 2015.”
RFA No. 53 asks Defendant to admit “that Defendants in part banned plaintiff Saif Hussain from Los Angeles Unified School District Headquarters because of a religious video sent by Hussain to Talal Balaa.”
RFA No. 55 asks Defendant to admit that “Defendants in part terminated Plaintiff Hussain because of a religious video sent by Hussain to Talal Balaa.”
In response to RFA 29, Defendant admitted that he was terminated on January 13, 2017. Defendant’s admission is not responsive to the RFA because of the difference in year stated in the RFA and Defendant’s response. However, it appears that the parties overlook this discrepancy and agree in the moving and opposing papers that the termination occurred in 2017 as opposed to 2016.
The motion is denied as to RFP 29.
In response to RFA 32, Defendant admitted that LAUSD’s Notice of Unsatisfactory Service included information concerning Plaintiff’s shortcomings observed by management and discussed with Plaintiff multiple times, independent of the October 2017 performance evaluation. This response is purposefully unresponsive to the request. Plaintiff seeks an admission as to whether information from the report was used, but Defendant admits that information other than from the report was used.
The motion is granted as to RFA 32.
Despite objecting to RFP 53 claiming Defendant is unable to understand what information it seeks, Defendant admitted in response that Defendant LAUSD issued a Request for LAUSD Administrative Headquarters Building Visitor Access Restriction Form because of a video Plaintiff sent to Talal Balaa that was perceived to be threatening. This is directly responsive.
The motion is denied as to RFA 53.
Defendant submitted the same response to RFA 55 as it did to RFA 53. However, this time, the answer is not responsive to the question. The issuance of a restriction form does not respond to the question of whether Plaintiff was terminated in part because of the video sent to a third party.
The motion is granted as to RFA 55.
RFA No. 42 asks Defendant to admit “that emails produced in discovery show that plaintiff Saif Hussain kept Peter Ruppel apprised of the projects they worked on together.
In opposition, Defendant argues that this request “is unreasonably vague, overbroad, speculative conclusory, argumentative and subject to several interpretations. The fact that emails exist that appear to indicate some communication from Plaintiff to Ruppel regarding certain projects says nothing about the timing, thoroughness, or sufficiency of those communications.” (Opp. 14:3-6.) The RFA is clear and does not demand any of the information noted by Defendant in opposition. If emails exist which show that Plaintiff kept Ruppel appraised of the projects they worked on together, Defendant shall so admit, and conversely if not.
The motion is granted as to RFA 42.
RFA No. 56 asks Defendant to admit “that defendant Los Angeles Unified School District tracks the computer usage of its employees.”
RFA No. 57 asks Defendant to admit “that defendant Los Angeles Unified School District tracks the internet search history of its employees.”
RFA No. 59 asks Defendant to admit “that defendant Los Angeles Unified School District tracks the internet search history of those employed by the Facilities Services Division.”
RFA No. 60 asks Defendant to admit “that defendant Los Angeles Unified School District tracks the computer usage of those employed by the Maintenance and Operations Design Department.”
RFA No. 61 asks Defendant to admit “that defendant Los Angeles Unified School District tracks the internet search history of those employed by the Maintenance and Operations Design Department.”
These RFA are clear and concise. Nevertheless, Defendants objects on the basis that they are “overbroad and vague because as framed, it could encompass an employee’s computer usage at all hours of the day, is not limited to district-issued devices, and does not specify whether “tracking” simply means general monitoring or whether the request asks for the tracing of specific data points” (Opp. 14:16-19.) Indeed, the request could encompass such uses. Defendant’s identification thereof demonstrates the scope of the request and why Defendant should be compelled to respond thereto.
The motion is granted as to RFA 56 through 61.
RFA 64 and 65
RFA No. 64 asks Defendant to admit “that plaintiff Saif Hussain did not make ‘false claims’ to the DSA and District Police as alleged in the document bated LAUSD 0462.”
RFA No. 65 asks Defendant to admit “that plaintiff Saif Hussain never waived his right to an appeal as alleged in the document bated LAUSD 1553.”
These requests both reference an external document. Defendant contends that as such, they are not self-contained within the meaning of Code Civ. Proc. § 2033.060(d). This is incorrect. The request itself is self-contained because it does not refer to external language such as an instruction or a preface in furtherance of the request. A reference to an external document does not render the RFA defective. If Defendant does not have the knowledge to respond to such RFA, it may assert as such. However, RFA 64 and 65 are sufficiently narrow to warrant a response.
The court declines to award sanctions as the circumstances of this matter make the imposition of sanctions unjust as this is a mixed ruling and there is substantial justification for the parties’ respective positions.
Date: January 21, 2021
Honorable Stuart M. Rice
Judge of the Superior Court
Case Number: BC669368 Hearing Date: October 07, 2020 Dept: 49
Superior Court of California
County of Los Angeles
Saif Hussain, et al.,
Los Angeles Unified School Dist.,
Hearing Date: October 7, 2020
Department 49, Judge Stuart M. Rice
(1) Motion to Strike Affirmative Defenses and for Sanctions Under Code of Civil Procedure Section 128.7
Moving Party: Plaintiff Saif Hussain
Responding Party: Defendant Los Angeles Unified School District (LAUSD)
Ruling: Plaintiff’s motion for sanctions is denied in full.
Defendant’s request for sanctions under CCP 128.7 is granted in the amount of $2,580 for fees reasonably incurred in opposing this motion.
On October 20, 2017, LAUSD responded, “not applicable,” because it had not yet filed or served any denial or affirmative defense. Before the hearing on the first demurrer, plaintiff filed a first amended complaint. Defendants filed another demurrer on January 5, 2018, which the court sustained in part and overruled in part. On January 30, 2018—still months before LAUSD filed its answer—plaintiff sent a meet-and-confer letter regarding purported deficiencies in LAUSD’s responses to form interrogatories. (See Motion, Exhibit 5.) As to number 216.1 at issue here, plaintiff’s letter states: “Plaintiff understands that no answer has been filed to date, but nonetheless seeks to meet and confer on the issue.” (Id.)
On May 4, 2018, plaintiff filed his second amended complaint. Defendants filed a collective answer to that operative complaint on June 7, 2018, which includes a general denial and 16 affirmative defenses.
Objections 1-3 are overruled.
Motion to Strike and for Sanctions
Plaintiff moves to strike LAUSD’s affirmative defenses and requests monetary sanctions for violating Code of Civil Procedure section 128.7 based on its “not applicable” response to form interrogatory number 216.1, which was served almost a year before LAUSD filed its answer containing any denial or affirmative defense and with respect to which plaintiff never filed a motion to compel further. For reasons explained below, plaintiff’s motion is denied.
By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met:
(1) Proper purpose: It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) Legal merit: The claims, defenses, and other legal contentions stated in the pleading or other paper are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
(3) Evidentiary support: The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
(Code Civ. Proc., § 128.7, subd. (b).)
A violation of any of these certifications may give rise to sanctions. (Eichenbaum v. Alon (2003) 106 Cal.App.4th 967, 976.) “The actual belief standard ... requires a well-founded belief. We measure the truth-finding inquiry’s reasonableness under an objective standard and apply this standard both to attorneys and to their clients.” (Bockrath v. Aldrich Chem. Co., Inc. (1999) 21 Cal.4th 71, 82; see also Optimal Markets, Inc. v. Salant (2013) 221 Cal.App.4th 912, 921 [“whether an action is frivolous under section 128.7 is measured by an objective standard”].)
A Code of Civil Procedure section 128.7 motion involves a two-step process. The moving party first serves the sanctions motion on the offending party without filing it. The opposing party then has 21 days to withdraw the improper pleading or petition and avoid sanctions (the so-called “safe harbor” waiting period). At the end of the waiting period, if the pleading is not withdrawn, the moving party may then file the motion. (Code Civ. Proc., § 128.7, subd. (c)(1); Martorana v. Marlin & Saltzman (2009) 175 Cal.App.4th 685, 698-699; see In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 826.)
“[S]anctions under section 128.7 are not designed to be punitive in nature but rather to promote compliance with statutory standards of conduct.” (Martorana v. Marlin & Saltzman (2009) 175 Cal.App.4th 685, 699; see also Peake v. Underwood (2014) 227 Cal.App.4th 428, 441 [“By providing this safe harbor period, the Legislature designed the statute to be ‘remedial, not punitive’”].)
“The primary of the [section 128.7] is deterrence of filing abuses, not to provide compensation for those impacted by those abuses.” (Optimal Markets, Inc. v. Salant (2013) 221 Cal.App.4th 912, 921.) Where counsel did not file or submit the objectionable pleading with the court or present it to the court by “later advocating” it, the imposition of sanctions concerning that pleading is not authorized under section 128.7. (Optimal Markets, 221 Cal.App.4th at p. 923.)
Sanctions under section 128.7 are discretionary. The court is not required to impose a monetary sanction or any sanction at all. (See Code Civ. Proc., § 128.7, subd. (c); See Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408, 421.)
Although plaintiff attempts to characterize this motion as though it is based on LAUSD’s answer, the real subject of this motion for sanctions is not the answer or any other pleading that was filed, signed, or later advocated for by LAUSD. Rather, this motion is based on a response to discovery. On that basis alone, this motion under section 128.7 is properly denied. (See Optimal Markets, 221 Cal.App.4th at p. 921 [section 128.7’s purpose is to prevent filing abuses]; see also Code Civ. Proc., § 128.7, subd. (g).) This motion provides no basis for finding LAUSD’s answer setting forth its general denial and affirmative defenses objectively frivolous under section 128.7 aside from plaintiff’s assertion that LAUSD gave a deficient response to discovery.
LAUSD is correct that the chronology of events is important for the court’s ruling on this motion. In August 11, 2017, plaintiff propounded employment form interrogatories, including number 216.1, seeking facts and identification of witnesses and documents to support LAUSD’s denials or affirmative defenses. However, LAUSD did not file a pleading asserting any denials or affirmative defenses until June 2018, after having filed two demurrers. Thus, when LAUSD responded to the prematurely propounded form interrogatory, its response “not applicable” was entirely appropriate.
Even if plaintiff had established LAUSD’s response to the form interrogatory was inadequate, LAUSD is also correct in its observation that has not cited a single case in which a purportedly insufficient interrogatory response warranted striking an answer in the first instance, without any prior motion to compel further. A trial court has broad discretion to impose discovery sanctions, but willful failure to comply with a court order is generally a prerequisite to the imposition of nonmonetary sanctions. (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327 [also recognizing that a responding party has no affirmative duty to supplement responses to interrogatories if new information comes into that party’s possession].)
In Thoren v. Johnston & Washer (1972) 29 Cal.App.3d 270, a trial court barred a party from presenting testimony at trial from any witness other than the sole witness that the party identified in an interrogatory. The court of appeal affirmed based on substantial evidence supporting the trial court’s finding that the response to the interrogatory was “willfully false.” (Id. at pp. 275-276.)
In Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, the trial court excluded a declaration submitted in support of an opposition to a motion for summary judgment on the ground that the declarant had not been identified in response to an earlier interrogatory. (Id. at p. 1319.) The court of appeal reversed the summary judgment, concluding that the declaration was improperly excluded and raised a triable issue of material fact. (Id.) Biles distinguished Thoren because in Thoren, “it was not until the start of trial, over two years after plaintiff served his interrogatory answer, that the defendant learned a witness had been omitted.” (Id. at p. 1324.) In contrast, in Biles, the record indicated that “no trial date had been set when the summary judgment motion was filed.” (Id.) More importantly, the court of appeal observed that the trial court did not find and could not have found that the responses were “willfully false when made.” (Id.)
Here, LAUSD’s “not applicable” response was plainly correct given that it had not yet filed any denial or affirmative defense. Thus, there is no basis for finding that the response was “willfully false” when made. Further, LAUSD had no affirmative duty to respond to an interrogatory which had not been propounded at the appropriate time at a later date, when plaintiff should have actually propounded the interrogatory (i.e., after LAUSD filed its answer). (See Biles, at p. 1327.) As was the case in Biles, this action has not yet proceeded to trial, or even the summary judgment stage. Thus, multiple facets of the procedural posture in this case reinforce the court’s denial of plaintiff’s motion.
Plaintiff argues that the court should nonetheless grant his motion for sanctions because plaintiff propounded form interrogatories – employment (set two), which again included number 216.1 because plaintiff has received no response (hence the pending motion to compel, scheduled in March 2021). This argument fails because LAUSD’s purportedly inadequate response to plaintiff’s second set of form interrogatories, propounded after plaintiff filed the instant motion, was not the subject of this motion. Therefore, plaintiff’s request that the court use this purported lack of response as a basis to grant this motion does not meet the notice requirements of section 128.7. Nor does section 128.7 even apply because, as stated above, an inadequate discovery response does not involve a frivolous “filing.” Finally, the court lacks discretion to strike LAUSD’s answer in the absence of a single instance of LAUSD’s failure to comply with a court order, let alone a failure which was willful. (See Biles, at p. 1327.)
Therefore, plaintiff’s motion to strike LAUSD’s affirmative defenses and for monetary sanctions is denied in full. The parties are reminded that they are required to engage in an informal discovery conference with the court before filing any discovery motions. (See Code Civ. Proc., § 2016.080.)
LAUSD’s Request for Monetary Sanctions
LAUSD seeks to recover the fees it incurred in opposing this motion. Code of Civil Procedure section 128.7 provides, “the court may award to the party prevailing on the motion the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion.” The court finds that a fee award is warranted against plaintiff’s counsel under section 128.7 in favor of LAUSD as the prevailing party in opposing this motion. The amount sought of $2,580 for fees incurred at the hourly rate of $205 is reasonable. Therefore, plaintiff’s counsel shall pay LAUSD $2,580. The court declines to impose a deadline for payment. LAUSD may use other legal remedies for recovery.
LAUSD is ordered to give notice of this ruling.
Date: October 7, 2020
Honorable Stuart M. Rice
Judge of the Superior Court
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