Preview
1 JACKSON LEWIS P.C.
JAMES T. JONES (SBN 167967)
2 400 Capitol Mall, Suite 1600
Sacramento, Califomia 95814
3 Telephone: (916) 341-0404
Facsimile: (916)341-0141 FILEO/EI^IDORSIED
4 Email: iames.iones(a),iacksonlewis.com
5 JACKSON LEWIS P.C. AU6 .15 m
BENJAMIN A. MAINS (SBN 274056)
6 50 Califomia Street, 9* Floor
San Francisco, Califomia 94111
7 Telephone: (415)394-9400
Facsimile: (415)394-9401
8 Email: beniamin.mains@iacksonlewis.com
9 Attomeys for Defendant
LIQUI-BOX CORPORATION
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11 SUPERIOR COURT OF THE STATE OF CALIFORNIA
12 COUNTY OF SACRAMENTO
13 SAHDA ZAMAN, CASE NO. 34-2019-00252121 -CU-WT-GDS
14 Plaintiff, DEFENDANT'S MEMORANDUM OF
POINTS AND AUTHORITIES IN
15 vs. SUPPORT OF DEFENDANT'S
OPPOSITION TO PLAINTIFF'S
16 MOTION TO COMPEL FURTHER
LIQUI-BOX CORPORATION, and DOES 1 RESPONSES TO SPECIAL
17 through 20, inclusive. INTERROGATORIES, SET FIVE, AND
MONETARY SANCTIONS
18 Defendants.
Rescheduled Date: August 25, 2022
19 Time: 1:30 p.m.
Dept: 53
20 Reservation No.: 2664200 BY FAX
21 Complaint Filed: March 8, 2019
Trial Date: September 12, 2022
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MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT'S OPPOSITION TO PLAINTIFF'S
MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET FIVE
1 TO T H E HONORABLE COURT, PLAINTIFF, AND H E R ATTORNEYS OF
2 RECORD:
3 Defendant LIQUI-BOX CORPORATION ("Defendant") hereby submits the following
4 Opposition to Plaindff SAJIDA ZAMAN's ("Plaintiff') Motion to Compel Further Responses to
5 Plaintiffs Special Interrogatories, Set Five, Request of Waiver of Objections and Request for
6 Sanctions.
7 MEMORANDUM OF POINTS AND AUTHORITIES
8 I. INTRODUCTION
9 Plaintiffs Motion to Compel Further Responses to Plaintiffs Special Interrogatories, Set
10 Five, Request of Waiver of Objections and Request for Sanctions ("Motion") is premature,
11 improper, unnecessary, and a further example of Plaintiffs counsel's misuse of the discovery
12 process. Because Plaintiff has filed her Motion to Compel in bad faith. Plaintiffs Motion to
13 Compel must be denied and this Court should award sanctions to Defendant.
14 First, Plaintiff failed to engage in a good faith effort to meet and confer after Defendant
15 indicated the responses to the discovery requests at issue would be provided and requested an
16 extension.
17 Second, Defendant failure to serve a timely response was the result of mistake,
18 inadvertence, or excusable neglect. Defendant does request that the present motion be continued
19 and heard concurrently with Defendant's soon to be filed motion for relief from waivers which is
20 required to be heard via a separate filed motion.
21 Third, Plaintiffs request for sanctions is baseless. Defendant has cooperatively engaged in
22 extensive discovery and has produced responses and thousands of pages of documents to Plaintiff.
23 Instead, Plaintiff engaged in the misuse of the discovery. Not only the discovery sought by
24 Plaintiff amounts to requests of information that has already been provided, but some of that
25 information does also not exist or constitutes an unjustified fishing expedition. Plaintiff failed to
26 engage in good faith meet and confer efforts prior to filing this Motion.
27 ///
28 ///
MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT'S OPPOSITION TO PLAINTIFF'S
MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET FIVE
1 Therefore, Plaintiffs Motion to Compel was filed without substantial justification, it is
2 without merit, and it should be denied. Defendant also respectfully requests this Court deny
3 Plaintiffs request for sanctions.
4 H. STATEMENT OF FACTS
5 On January 24, 2020, Plaintiff Sajida Zaman ("Plaintiff") field a complaint in Sacramento
6 Superior Court against Defendant Liqui-Box Corporation. The complaint alleges causes of action
7 for (1) Wrongful Termination in Violation of Public Policy; (2) Retaliation in Violation of Public
8 Policy; (3) Disability Discrimination in Violation of the Fair Employment and Housing Act
9 ("FEHA"); (4) Failure to Engage in the Interactive Process in Violation of FEHA; (5) Failure to
10 Provide a Reasonable Accommodation in Violation of FEHA; (6) Intentional Infliction of
11 Emotional Distress; and (7) Unfair Competition Law several employment-related claims under
12 the Fair Employment and Housing Act and Violations of Public Policy. {See Declaration of
13 James T. Jones ("Jones Decl.") at 2.)
14 On May 18, 2022, Plaintiff electronically served Defendant with Special Interrogatories,
15 Set Three, and Request for Production of Documents, Set Four. {See Declaration of James T.
16 Jones ("Jones Decl."), \ 3.) Six days later, on May 24, 2022, Plaintiff electronically served
17 Defendant with Special Interrogatories, Set Four, and Request for Production of Documents, Set
18 Five. {See Jones Decl., T| 3.) A few days later, on May 27, 2022, Plaintiff electronically served
19 Defendant with Form Interrogatories - General, Set Two, Requests for Admissions, Set One, and
20 Special Interrogatories, Set Five, along with three notices of depositions. {See Jones Decl., 1[ 3.)
21 A proof of service for the May 27, 2022, discovery was later submitted by Plaintiff on May 31,
22 2022. {See Jones Decl., t 3; Exhibit A.)
23 On June 24, 2022, Defense counsel requested a discovery extension to respond to all
24 outstanding discovery, including the special interrogatories, set five, until after mediation set for
25 July 1, 2022. {See Jones Decl., \ 4; Exhibit B.) Plaintiffs counsel did not respond. {Id.)
26 On August 2, 2022, Defense counsel followed up with Plaintiffs counsel to extend the
27 deadline for discovery responses. Defense counsel reminded Plaintiffs counsel that the associate
28 working on the case went on leave, explained he was dealing with the other pressing items
MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT'S OPPOSITION TO PLAINTIFF'S
MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET FIVE
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including filing the summary judgment reply papers, and was attempting to find an associate who
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could take over handing the case. Defense counsel then followed up offering to continue motion
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to compel deadlines permitting further meeting and conferring. {See Jones Decl., ^ 6 Exhibit D.)
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Plaintiffs counsel rebuffed these efforts. {See Jones Decl., ^ 6.)
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HI. L E G A L ARGUMENT
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A. Defendant Intends to Serve Code Compliant Responses Mooting PlaintifTs Motion
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to Compel Responses to Special Interrogatories, Set Five.
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9 Defendant is preparing responses to the discovery Plaintiff propounded and intends to
10 serve the verified responses before the hearing in this matter. {See Jones Decl., 7). Here,
11 Defense counsel's calendaring department made a mistake that is a legitimate basis for relief, the
12 attomey handling the matter went on leave unexpectedly early, and Defense counsel sought
13 reasonable extensions to provide responses. Plaintiffs counsel chose to play hard-ball.
14 B. Defendant Requests This Motion Be Denied Due to PlaintifTs Failure to Engage in
15 Any Meaningful Effort to Meet and Confer Prior to Filing this Motion.
16 Plaintiffs counsel argues he was not obligated to meet and confer before filing the instant
17 Motion. Even if that is true, it does not mean his motion must be granted. The motion is a waste
18 of judicial resources and a waste of the parties' resources.
19 Plaintiffs counsel knew Defendant's counsel had provided legitimate reasons to need
20 additional response time and unreasonably refused. On June 24, 2022, Defense counsel sought a
21 reasonable extension of time to respond to requests at issue. Plaintiff did not respond. On
22 August 2, 2022, defense counsel indicated the need for additional time but Plaintiffs counsel did
23 not respond and instead, prematurely filed the instant Motion.
24 C. Defendant Requests this Motion Be Continued and Heard Concurrently with
25 Defendant's Motion for Relief for Waiver of Objections.
26 Plaintiff also requests an order deeming waiver of objections to the discovery responses
27 including any claim of privilege. The Court has statutory authority to grant relief from waiver.
28 Because such relief must be requested by a separate noticed motion. Defendant requests this
MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT'S OPPOSITION TO PLAINTIFF'S
MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET FIVE
1 matter be continued and heard concurrently with its motion for relief from waiver of objections
2 which Defendant intends to file promptly following the filing of this motion.
3 In that motion. Defendant will seek relief from a waiver of objections. The Court is
4 authorized to relieve a party of waiver of objections for failure to serve a timely response to
5 discovery if the affected party demonstrates that:
6 (1) The party has subsequently served a response that is in substantial compliance with the
7 relevant sections of the Code of Civil Procedure; and
8 (2) The party's failure to serve timely responses was the result of mistake, inadvertence,
9 or excusable neglect. {See Code of Civil Procedure §§ 2030.290, subd. (a) and
10 2033.280, subd. (a).)
11 To obtain relief under Code of Civil Procedure §§ 2030.290 and 2033.280, a party must
12 have subsequently served a response which is in substantial compliance with the relevant sections
13 of the Code of Civil Procedure Sections 2030.210, 2030.220, 2030.230, and 2030.240 for
14 interrogatories.
15 The second prong for obtaining relief under Code of Civil Procedure §§ 2030.290 and
16 2033.280 is to show that the party's failure to serve a timely response was the result of mistake,
17 inadvertence, or excusable neglect. (Code of Civil Procedure §§ 2030.290, subd. (a) (2) and
18 2033.280, subd. (a) (2).) The law favors granting relief except in circumstances in which
19 "inexcusable neglect is clear." {Elston v. City of Turlock (1985) 38 Cal.3d. 227, 235.) In
20 determining what constitutes "mistake, inadvertence, or excusable neglect" under the Discovery
21 Act, the same standards apply as for relief from default under Code of Civil Procedure section
22 473, subdivision (b). {City of Fresno v. Sup. Ct. (1988) 205 Cal. App. 3d 1459, 1467 (applying
23 case law interpreting standard under Code of Civil Procedure, section 473 to the Discovery Act.)
24 A mistake of fact is when a person understands the facts to be other than they are; a mistake of
25 law is when a person knows the facts as they really are but has a mistaken belief as to the legal
26 consequences of those facts. {Baratti v. Baratti (1952) 109 Cal.App.2nd 917, 921.) Inadvertence
27 ///
28 ///
MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT'S OPPOSITION TO PLAINTIFF'S
MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET FIVE
1 is defined as lack of heedfulness or attentiveness, inattention, fauh from negligence. {Ibid.) The
2 excusable neglect referred to in the section is that neglect which might have been the act of a
3 reasonable pmdent person under the circumstances. {Ibid.)
4 Here, Defense counsel mistakenly believed responses were due on July 5, 2022.
5 Defendant sought to meet and confer to resolve this matter informally. Instead, Plaintiff filed the
6 instant Motion on August 2, 2022. As such, at most Defense counsel made an inadvertent
7 mistake, which does not rise to the level of "inexcusable neglect."
8 Furthermore, a party's failure to object cannot impair the privacy rights of non-parties,
9 who have no notice of the proceedings in which the question is asked. Their rights may be
10 asserted for the first time in opposition to a motion to compel because "[a]n inflexible waiver mie
11 would...infringe upon the constitutional privacy rights of citizens not participating in the
12 lawsuit." {Boler v. Superior Court (Everett) (1987) 201 Cal.App.3d 467,472.) The right of
13 privacy is of constitutional dimension. Moreover, where (as here) disclosure would infringe the
14 privacy of third persons, their rights to object must be protected.
15 D. Sanctions Would be Unjust Considering the Challenges Posed by the Case, Which
16 Were Disclosed to Plaintiffs Counsel.
17 The Court may not impose monetary sanctions against Defendant if it concludes either
18 that: (1) Defendant acted with substantial justification in opposing the Motion; or (2) the
19 imposition of sanctions would be unjust. {See Cal. Code Civ. Proc. § 2031.320(b).) Plaintiffs
20 request for monetary sanctions should be denied for several reasons.
21 First, Defendant is substantially justified in opposing this Motion because it attempted to
22 resolve this matter informally. Instead, Plaintiffs counsel ignored requests for extension and filed
23 the instant Motion.
24 The delay in providing responses to Plaintiffs discovery was not intentional and was the
25 result of the above-stated facts. Considering these facts, in would be unfair and unjust to require
26 Defendant to incur the costs associated with Plaintiffs misuse of the discovery process.
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28 ///
MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT'S OPPOSITION TO PLAINTIFF'S
MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET FIVE
1 IV. CONCLUSION
2 For the foregoing reasons. Defendant requests that the Court should deny Plaintiffs
3 motion to compel responses, andfiartherrequests that Plaintiffs motion for sanctions be denied.
4 Dated: August 15, 2022 JACKSON LEWIS P.C.
5 JtC'\^-^n^ I ^(Vt-^H^'
6 By:_
JAMES T. JONES
7 BENJAMIN A. MAINS
Attomeys for Defendant
8 LIQUI-BOX CORPORATION
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MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT'S OPPOSITION TO PLAINTIFF'S
MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET FIVE
1 PROOF OF S E R V I C E
2 1 am employed in the County of Sacramento, State of Califomia. I am over the age of
eighteen years and not a party to the within action; my business address is Jackson Lewis P.C,
3 400 Capitol Mall, Suite 1600, Sacramento, Califomia 95814.
4 On August 15, 2022,1 served the within:
5 DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER
6 RESPONSES TO SPECIAL INTERROGATORIES, SET F I V E , AND MONETARY
SANCTIONS
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on all interested parties in said action, through their attomeys of record as listed below, by placing
8 a tme and correct copy thereof, addressed as shown below, by the following means:
9 Q PERSONAL SERVICE - by causing personal delivery of a tme and correct copy
thereof to the person at the address set forth below, in accordance with Code of Civil
10 Procedure section 1011 (a).
11 Q M A I L - by placing a tme and correct copy thereof enclosed in a sealed envelope with
postage thereon fully prepaid for deposit in the United States Post Office mailbox, at
12 my business address shown above, following Jackson Lewis P.C.'s ordinary business
practices for the collection and processing of mail, of which 1 am readily familiar, and
13 addressed as set forth below. On the same day correspondence is placed for collection
and mailing, it is deposited in the ordinary course of business with the United States
14 Postal Service.
15 Q OVERNIGHT DELIVERY - by depositing a true and correct copy thereof enclosed
in a sealed envelope with delivery fees thereon fully prepaid in a box or other facility
16 regularly maintained by UPS or delivering to an authorized courier or driver
authorized by UPS to receive documents, addressed as set forth below.
17
[X] E-MAIL OR ELECTRONIC TRANSMISSION - Based on Califomia Code of Civil
18 Procedure Section 1010.6(e)(l)(2), 1 caused the document(s) described above to be
sent from e-mail address kellv.asano@iacksonlewis.com to the person(s) at the e-mail
19 address(es) listed below. I did not receive, within a reasonable time after the
transmission, any electronic message or other indication that the transmission was
20 unsuccessful.
21 Joshua F. Falakassa (SBN 295045) Arash S. Khosrowshahi (SBN 293246)
FALAKASSA LAW, P.C. LIBERTY MAN LAW, P.C.
22 1901 Avenue of the Stars, Suite 450 1010 F Street, Suite 300
Los Angeles, CA 90067 Sacramento, CA 95814
23 Telephone: (818)456-6168 Telephone: (916)573-0469
Facsimile: (888)505-0868 Facsimile: (866)700-0787
24 Email: Josh@Falakassalaw.com Email: ash@libertvmanlaw.com
I declare under penalty of perjury under the laws of the State of Califomia that the
2g foregoing is tme and correct, and that this declaration was executed on August 15, 2022 at
Sacramento, Califomia. . , >,>7
27 Wlim
Kelly Asano
28 4883-5150-4430, V. 1
PROOF OF SERVICE
Preview
1 JACKSON LEWIS P.C. JAMES T. JONES (SBN 167967) 2 400 Capitol Mall, Suite 1600 Sacramento, Califomia 95814 3 Telephone: (916) 341-0404 Facsimile: (916)341-0141 FILEO/EI^IDORSIED 4 Email: iames.iones(a),iacksonlewis.com 5 JACKSON LEWIS P.C. AU6 .15 m BENJAMIN A. MAINS (SBN 274056) 6 50 Califomia Street, 9* Floor San Francisco, Califomia 94111 7 Telephone: (415)394-9400 Facsimile: (415)394-9401 8 Email: beniamin.mains@iacksonlewis.com 9 Attomeys for Defendant LIQUI-BOX CORPORATION 10 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SACRAMENTO 13 SAHDA ZAMAN, CASE NO. 34-2019-00252121 -CU-WT-GDS 14 Plaintiff, DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN 15 vs. SUPPORT OF DEFENDANT'S OPPOSITION TO PLAINTIFF'S 16 MOTION TO COMPEL FURTHER LIQUI-BOX CORPORATION, and DOES 1 RESPONSES TO SPECIAL 17 through 20, inclusive. INTERROGATORIES, SET FIVE, AND MONETARY SANCTIONS 18 Defendants. Rescheduled Date: August 25, 2022 19 Time: 1:30 p.m. Dept: 53 20 Reservation No.: 2664200 BY FAX 21 Complaint Filed: March 8, 2019 Trial Date: September 12, 2022 22 23 24 25 26 27 28 1 MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET FIVE 1 TO T H E HONORABLE COURT, PLAINTIFF, AND H E R ATTORNEYS OF 2 RECORD: 3 Defendant LIQUI-BOX CORPORATION ("Defendant") hereby submits the following 4 Opposition to Plaindff SAJIDA ZAMAN's ("Plaintiff') Motion to Compel Further Responses to 5 Plaintiffs Special Interrogatories, Set Five, Request of Waiver of Objections and Request for 6 Sanctions. 7 MEMORANDUM OF POINTS AND AUTHORITIES 8 I. INTRODUCTION 9 Plaintiffs Motion to Compel Further Responses to Plaintiffs Special Interrogatories, Set 10 Five, Request of Waiver of Objections and Request for Sanctions ("Motion") is premature, 11 improper, unnecessary, and a further example of Plaintiffs counsel's misuse of the discovery 12 process. Because Plaintiff has filed her Motion to Compel in bad faith. Plaintiffs Motion to 13 Compel must be denied and this Court should award sanctions to Defendant. 14 First, Plaintiff failed to engage in a good faith effort to meet and confer after Defendant 15 indicated the responses to the discovery requests at issue would be provided and requested an 16 extension. 17 Second, Defendant failure to serve a timely response was the result of mistake, 18 inadvertence, or excusable neglect. Defendant does request that the present motion be continued 19 and heard concurrently with Defendant's soon to be filed motion for relief from waivers which is 20 required to be heard via a separate filed motion. 21 Third, Plaintiffs request for sanctions is baseless. Defendant has cooperatively engaged in 22 extensive discovery and has produced responses and thousands of pages of documents to Plaintiff. 23 Instead, Plaintiff engaged in the misuse of the discovery. Not only the discovery sought by 24 Plaintiff amounts to requests of information that has already been provided, but some of that 25 information does also not exist or constitutes an unjustified fishing expedition. Plaintiff failed to 26 engage in good faith meet and confer efforts prior to filing this Motion. 27 /// 28 /// MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET FIVE 1 Therefore, Plaintiffs Motion to Compel was filed without substantial justification, it is 2 without merit, and it should be denied. Defendant also respectfully requests this Court deny 3 Plaintiffs request for sanctions. 4 H. STATEMENT OF FACTS 5 On January 24, 2020, Plaintiff Sajida Zaman ("Plaintiff") field a complaint in Sacramento 6 Superior Court against Defendant Liqui-Box Corporation. The complaint alleges causes of action 7 for (1) Wrongful Termination in Violation of Public Policy; (2) Retaliation in Violation of Public 8 Policy; (3) Disability Discrimination in Violation of the Fair Employment and Housing Act 9 ("FEHA"); (4) Failure to Engage in the Interactive Process in Violation of FEHA; (5) Failure to 10 Provide a Reasonable Accommodation in Violation of FEHA; (6) Intentional Infliction of 11 Emotional Distress; and (7) Unfair Competition Law several employment-related claims under 12 the Fair Employment and Housing Act and Violations of Public Policy. {See Declaration of 13 James T. Jones ("Jones Decl.") at 2.) 14 On May 18, 2022, Plaintiff electronically served Defendant with Special Interrogatories, 15 Set Three, and Request for Production of Documents, Set Four. {See Declaration of James T. 16 Jones ("Jones Decl."), \ 3.) Six days later, on May 24, 2022, Plaintiff electronically served 17 Defendant with Special Interrogatories, Set Four, and Request for Production of Documents, Set 18 Five. {See Jones Decl., T| 3.) A few days later, on May 27, 2022, Plaintiff electronically served 19 Defendant with Form Interrogatories - General, Set Two, Requests for Admissions, Set One, and 20 Special Interrogatories, Set Five, along with three notices of depositions. {See Jones Decl., 1[ 3.) 21 A proof of service for the May 27, 2022, discovery was later submitted by Plaintiff on May 31, 22 2022. {See Jones Decl., t 3; Exhibit A.) 23 On June 24, 2022, Defense counsel requested a discovery extension to respond to all 24 outstanding discovery, including the special interrogatories, set five, until after mediation set for 25 July 1, 2022. {See Jones Decl., \ 4; Exhibit B.) Plaintiffs counsel did not respond. {Id.) 26 On August 2, 2022, Defense counsel followed up with Plaintiffs counsel to extend the 27 deadline for discovery responses. Defense counsel reminded Plaintiffs counsel that the associate 28 working on the case went on leave, explained he was dealing with the other pressing items MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET FIVE 1 including filing the summary judgment reply papers, and was attempting to find an associate who 2 could take over handing the case. Defense counsel then followed up offering to continue motion 3 to compel deadlines permitting further meeting and conferring. {See Jones Decl., ^ 6 Exhibit D.) 4 Plaintiffs counsel rebuffed these efforts. {See Jones Decl., ^ 6.) 5 HI. L E G A L ARGUMENT 6 A. Defendant Intends to Serve Code Compliant Responses Mooting PlaintifTs Motion 7 to Compel Responses to Special Interrogatories, Set Five. 8 9 Defendant is preparing responses to the discovery Plaintiff propounded and intends to 10 serve the verified responses before the hearing in this matter. {See Jones Decl., 7). Here, 11 Defense counsel's calendaring department made a mistake that is a legitimate basis for relief, the 12 attomey handling the matter went on leave unexpectedly early, and Defense counsel sought 13 reasonable extensions to provide responses. Plaintiffs counsel chose to play hard-ball. 14 B. Defendant Requests This Motion Be Denied Due to PlaintifTs Failure to Engage in 15 Any Meaningful Effort to Meet and Confer Prior to Filing this Motion. 16 Plaintiffs counsel argues he was not obligated to meet and confer before filing the instant 17 Motion. Even if that is true, it does not mean his motion must be granted. The motion is a waste 18 of judicial resources and a waste of the parties' resources. 19 Plaintiffs counsel knew Defendant's counsel had provided legitimate reasons to need 20 additional response time and unreasonably refused. On June 24, 2022, Defense counsel sought a 21 reasonable extension of time to respond to requests at issue. Plaintiff did not respond. On 22 August 2, 2022, defense counsel indicated the need for additional time but Plaintiffs counsel did 23 not respond and instead, prematurely filed the instant Motion. 24 C. Defendant Requests this Motion Be Continued and Heard Concurrently with 25 Defendant's Motion for Relief for Waiver of Objections. 26 Plaintiff also requests an order deeming waiver of objections to the discovery responses 27 including any claim of privilege. The Court has statutory authority to grant relief from waiver. 28 Because such relief must be requested by a separate noticed motion. Defendant requests this MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET FIVE 1 matter be continued and heard concurrently with its motion for relief from waiver of objections 2 which Defendant intends to file promptly following the filing of this motion. 3 In that motion. Defendant will seek relief from a waiver of objections. The Court is 4 authorized to relieve a party of waiver of objections for failure to serve a timely response to 5 discovery if the affected party demonstrates that: 6 (1) The party has subsequently served a response that is in substantial compliance with the 7 relevant sections of the Code of Civil Procedure; and 8 (2) The party's failure to serve timely responses was the result of mistake, inadvertence, 9 or excusable neglect. {See Code of Civil Procedure §§ 2030.290, subd. (a) and 10 2033.280, subd. (a).) 11 To obtain relief under Code of Civil Procedure §§ 2030.290 and 2033.280, a party must 12 have subsequently served a response which is in substantial compliance with the relevant sections 13 of the Code of Civil Procedure Sections 2030.210, 2030.220, 2030.230, and 2030.240 for 14 interrogatories. 15 The second prong for obtaining relief under Code of Civil Procedure §§ 2030.290 and 16 2033.280 is to show that the party's failure to serve a timely response was the result of mistake, 17 inadvertence, or excusable neglect. (Code of Civil Procedure §§ 2030.290, subd. (a) (2) and 18 2033.280, subd. (a) (2).) The law favors granting relief except in circumstances in which 19 "inexcusable neglect is clear." {Elston v. City of Turlock (1985) 38 Cal.3d. 227, 235.) In 20 determining what constitutes "mistake, inadvertence, or excusable neglect" under the Discovery 21 Act, the same standards apply as for relief from default under Code of Civil Procedure section 22 473, subdivision (b). {City of Fresno v. Sup. Ct. (1988) 205 Cal. App. 3d 1459, 1467 (applying 23 case law interpreting standard under Code of Civil Procedure, section 473 to the Discovery Act.) 24 A mistake of fact is when a person understands the facts to be other than they are; a mistake of 25 law is when a person knows the facts as they really are but has a mistaken belief as to the legal 26 consequences of those facts. {Baratti v. Baratti (1952) 109 Cal.App.2nd 917, 921.) Inadvertence 27 /// 28 /// MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET FIVE 1 is defined as lack of heedfulness or attentiveness, inattention, fauh from negligence. {Ibid.) The 2 excusable neglect referred to in the section is that neglect which might have been the act of a 3 reasonable pmdent person under the circumstances. {Ibid.) 4 Here, Defense counsel mistakenly believed responses were due on July 5, 2022. 5 Defendant sought to meet and confer to resolve this matter informally. Instead, Plaintiff filed the 6 instant Motion on August 2, 2022. As such, at most Defense counsel made an inadvertent 7 mistake, which does not rise to the level of "inexcusable neglect." 8 Furthermore, a party's failure to object cannot impair the privacy rights of non-parties, 9 who have no notice of the proceedings in which the question is asked. Their rights may be 10 asserted for the first time in opposition to a motion to compel because "[a]n inflexible waiver mie 11 would...infringe upon the constitutional privacy rights of citizens not participating in the 12 lawsuit." {Boler v. Superior Court (Everett) (1987) 201 Cal.App.3d 467,472.) The right of 13 privacy is of constitutional dimension. Moreover, where (as here) disclosure would infringe the 14 privacy of third persons, their rights to object must be protected. 15 D. Sanctions Would be Unjust Considering the Challenges Posed by the Case, Which 16 Were Disclosed to Plaintiffs Counsel. 17 The Court may not impose monetary sanctions against Defendant if it concludes either 18 that: (1) Defendant acted with substantial justification in opposing the Motion; or (2) the 19 imposition of sanctions would be unjust. {See Cal. Code Civ. Proc. § 2031.320(b).) Plaintiffs 20 request for monetary sanctions should be denied for several reasons. 21 First, Defendant is substantially justified in opposing this Motion because it attempted to 22 resolve this matter informally. Instead, Plaintiffs counsel ignored requests for extension and filed 23 the instant Motion. 24 The delay in providing responses to Plaintiffs discovery was not intentional and was the 25 result of the above-stated facts. Considering these facts, in would be unfair and unjust to require 26 Defendant to incur the costs associated with Plaintiffs misuse of the discovery process. 27 /// 28 /// MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET FIVE 1 IV. CONCLUSION 2 For the foregoing reasons. Defendant requests that the Court should deny Plaintiffs 3 motion to compel responses, andfiartherrequests that Plaintiffs motion for sanctions be denied. 4 Dated: August 15, 2022 JACKSON LEWIS P.C. 5 JtC'\^-^n^ I ^(Vt-^H^' 6 By:_ JAMES T. JONES 7 BENJAMIN A. MAINS Attomeys for Defendant 8 LIQUI-BOX CORPORATION 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET FIVE 1 PROOF OF S E R V I C E 2 1 am employed in the County of Sacramento, State of Califomia. I am over the age of eighteen years and not a party to the within action; my business address is Jackson Lewis P.C, 3 400 Capitol Mall, Suite 1600, Sacramento, Califomia 95814. 4 On August 15, 2022,1 served the within: 5 DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER 6 RESPONSES TO SPECIAL INTERROGATORIES, SET F I V E , AND MONETARY SANCTIONS 7 on all interested parties in said action, through their attomeys of record as listed below, by placing 8 a tme and correct copy thereof, addressed as shown below, by the following means: 9 Q PERSONAL SERVICE - by causing personal delivery of a tme and correct copy thereof to the person at the address set forth below, in accordance with Code of Civil 10 Procedure section 1011 (a). 11 Q M A I L - by placing a tme and correct copy thereof enclosed in a sealed envelope with postage thereon fully prepaid for deposit in the United States Post Office mailbox, at 12 my business address shown above, following Jackson Lewis P.C.'s ordinary business practices for the collection and processing of mail, of which 1 am readily familiar, and 13 addressed as set forth below. On the same day correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States 14 Postal Service. 15 Q OVERNIGHT DELIVERY - by depositing a true and correct copy thereof enclosed in a sealed envelope with delivery fees thereon fully prepaid in a box or other facility 16 regularly maintained by UPS or delivering to an authorized courier or driver authorized by UPS to receive documents, addressed as set forth below. 17 [X] E-MAIL OR ELECTRONIC TRANSMISSION - Based on Califomia Code of Civil 18 Procedure Section 1010.6(e)(l)(2), 1 caused the document(s) described above to be sent from e-mail address kellv.asano@iacksonlewis.com to the person(s) at the e-mail 19 address(es) listed below. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was 20 unsuccessful. 21 Joshua F. Falakassa (SBN 295045) Arash S. Khosrowshahi (SBN 293246) FALAKASSA LAW, P.C. LIBERTY MAN LAW, P.C. 22 1901 Avenue of the Stars, Suite 450 1010 F Street, Suite 300 Los Angeles, CA 90067 Sacramento, CA 95814 23 Telephone: (818)456-6168 Telephone: (916)573-0469 Facsimile: (888)505-0868 Facsimile: (866)700-0787 24 Email: Josh@Falakassalaw.com Email: ash@libertvmanlaw.com I declare under penalty of perjury under the laws of the State of Califomia that the 2g foregoing is tme and correct, and that this declaration was executed on August 15, 2022 at Sacramento, Califomia. . , >,>7 27 Wlim Kelly Asano 28 4883-5150-4430, V. 1 PROOF OF SERVICE