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1 Jonathan C. Teller, Esq. SBN 280312
TellerTeam@wilshirelawfirm.com
2 Nicol E. Hajjar, Esq., SBN 303102
NicolHajjarsTeam@wilshirelawfirm.com
3
WILSHIRE LAW FIRM
4 3055 Wilshire Blvd., 12th Floor
Los Angeles, California 90010
5 Telephone: (213) 381-9988
Facsimile: (213) 381-9989
6
Attorneys for Plaintiff, JOHN DOE
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SUPERIOR COURT FOR THE STATE OF CALIFORNIA
9
COUNTY OF SANTA BARBARA
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11 Case No. 23CV01348
JOHN DOE, an individual,
12
Plaintiff,
13 PLAINTIFF’S REPLY TO DEFENDANT
3055 Wilshire Blvd, 12th Floor
Los Angeles, CA 90010-1137
WILSHIRE LAW FIRM, PLC
NORMAN'S NURSERY, INC’S
14 v.
OPPOSITION TO PLAINTIFF’S MOTION
TO COMPEL FURTHER RESPONSES TO
15 PLAINTIFF’S FORM
NORMAN'S NURSERY, INC. a
16 INTERROGATORIES-EMPLOYMENT,
Corporation; CUAUHTEMOC
SET ONE
RODRIGUEZ, an individual; and DOES 1
17 through 50, inclusive,
Date: April 19, 2024
18 Time: 10:00am
Dept.: 4
19 Defendants.
20
Action Filed: April 03, 2023
21 Trial: Not set.
22
23 Plaintiff herein submits his Reply to Defendant’s Opposition to Plaintiff’s Motion to
24 Compel Further Responses to Form Interrogatories – Employment, Set One.
25 //
26 //
27 //
28 //
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PLAINTIFF’S REPLY TO DEFENDANT NORMAN'S NURSERY, INC’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
FURTHER RESPONSES TO PLAINTIFF’S FORM INTERROGATORIES-EMPLOYMENT, SET ONE
1 MEMORANDUM OF POINTS & AUTHORITIES
2 I. INTRODUCTION
3 Plaintiff John Doe (“Plaintiff”) respectfully submits this reply brief in support of his
4 motion to compel further responses from Defendant Norman’s Nursery (“Defendant”) as
5 sought in Plaintiff’s Form Interrogatories-Employment Law (Set One).
6 With regard to Plaintiff’s Form Interrogatories – Employment Nos. 201.1, 201.2, 201.4
7 and 201.6, Defendant deliberately misconstrued Judicial Council’s definition of “resignation”
8 to mean “affirmative termination.” This is facially false. Defendant’s refusal to conduct proper
9 investigation based on this misinterpretation is inappropriate and violates court-mandated
10 requirements.
11 With regard to Plaintiff’s Form Interrogatories – Employment Nos. 207.1 and 211.1,
12 Defendant's reliance on Civil Code section 2030.230 is misplaced. It is much more
13 burdensome for Plaintiff to compile, audit and summarize Defendant’s own documents
3055 Wilshire Blvd, 12th Floor
Los Angeles, CA 90010-1137
WILSHIRE LAW FIRM, PLC
14 production. Referring to a big pile of documents in response to an Interrogatory is also evasive.
15 Defendant’s Opposition with regarding to Form Interrogatory No. 216.1 boils down to
16 this, “after reasonable inquiry and diligent investigation, we do not have any supporting facts,
17 witnesses and documents for affirmative defenses Nos. 8, 10, 11, 15, 17, 21, 23, and 40, but we
18 are going to assert them anyways in case something comes up later.” [See Opposition 3:15-21]
19 This argument is flawed in two-prong. First, Defendant failed to fulfill its duty of investigation.
20 Party furnishing answers to interrogatories cannot plead ignorance to information which can be
21 obtained from sources under its control, and it must furnish information from all sources under
22 its control. See Regency Health Services, Inc. v. Superior Court (1998) 64 Cal.App.4th 1496,
23 1504; Gordon v. Superior Court (1984) 161 Cal.App.3d 157, 167-168. Second, Defendant
24 failed to plead its affirmative defenses with the same level of specificity as Plaintiff’s causes of
25 action. FPI Development, Inc vs. A1 Nakashima (1991) 231 Cal. App. 3d 367, 384. As such, if
26 there are no supporting facts, witnesses and/or documents for an affirmative defense,
27 Defendant should simply state so in a verified response.
28
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PLAINTIFF’S REPLY TO DEFENDANT NORMAN'S NURSERY, INC’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
FURTHER RESPONSES TO PLAINTIFF’S FORM INTERROGATORIES-EMPLOYMENT, SET ONE
1 “Where the question is specific and explicit, an answer which supplies only a portion of
2 the information sought is wholly insufficient.” Deyo v. Kilbourne (1978) 84 Cal.App.3d 771,
3 783. Facially, this interrogatory requires the responding party to address denials of material
4 allegations and affirmative defenses. The responding party has the burden to justify any
5 objection or failure to fully respond to this interrogatory. Coy v. Superior Court, 58 Cal.App.2d
6 210 (1962). Defendant has failed to do so. Plaintiff’s motion should be granted.
7 II. DEFENDANT DELIBERATELY MISCONTRUED FORM INTERROGATORY
8 NOS. 201.1, 201.2, 201.4 AND 201.6 TO AVOID DISCOVERY
9 Defendant does not dispute Plaintiff’s argument that Judicial Council broadly defined
10 “termination” to include resignation. [See Opposition 3:11-12.] It simply argues that this does
11 not change its analysis because a resignation was not “an affirmative termination” so
12 Defendant “would not have any responsive information.” This argument has no merit.
13 First, this response is facially non code compliant. Defendant has a duty to make a good
3055 Wilshire Blvd, 12th Floor
Los Angeles, CA 90010-1137
WILSHIRE LAW FIRM, PLC
14 faith investigation in answering Interrogatories. In answering interrogatories, a party must
15 furnish information available from sources under the party’s control. Deyo v. Kilbourne (1978)
16 84 Cal. App. 3d 771, 782 Regency Health Services, Inc. v. Superior Court (1998) 64 Cal. App.
17 4th 1496, 1504. Accordingly, “a corporation or public agency . . . has a . . . duty to obtain
18 information from all sources under its control . . . .” Gordon v. Superior Court (1984) 161 Cal.
19 App. 3d 157, 167-168 (emphasis added). Here, Defendant refused to engage in good-faith
20 discovery based on the sole belief that it would not have responsive information. It is evident
21 that Defendant did not bother to conduct any investigations. This is insufficient. These
22 Interrogatories must be supplemented.
23 Additionally, Defendant deliberately misconstrues “resignation” as “affirmative
24 termination.” This is clearly erroneous. By its plain meaning, resignation and affirmative
25 termination refer to different courses of action. It is improper for a responding party to
26 “deliberately misconstru[e] [a] question” for purposes of objection as to engage in mere “game
27 playing,” a tactic which is sanctionable. Clement v. Alegre (2009) 177 Cal. App. 1277, 1286.
28
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PLAINTIFF’S REPLY TO DEFENDANT NORMAN'S NURSERY, INC’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
FURTHER RESPONSES TO PLAINTIFF’S FORM INTERROGATORIES-EMPLOYMENT, SET ONE
1 IV. DEFENDANT.S RELIANCE ON CODE CIV. PRO § 2030.230 IN RESPONSE
2 TO FORM INTERROGATORIES NOS. 207.1 AND 211.1 IS IN APPROPRIATE
3 Defendant’s reference to Civil Code section 2030.230 is unpersuasive as it only applies
4 “if the burden or expense of preparing or making it would be substantially the same for the
5 party propounding the interrogatory as for the responding party.” It is much more burdensome
6 for Plaintiff to sift through Defendant’s document production for any relevant civil actions than
7 for Defendant to consult its own files.
8 Furthermore, invocation of Section 2030.230 is only properly asserted, when in order to
9 answer an interrogatory, it is necessary to make a compilation, abstract audit or summary of the
10 records. “A party who makes recourse to this section declares that the information in the
11 specified records is true, accurate, and complete, and that no other information is available to
12 the answering party. This exception applies only if the summary is not available and the party
13 specifies the records from which the information can be ascertained. “A broad statement that
3055 Wilshire Blvd, 12th Floor
Los Angeles, CA 90010-1137
WILSHIRE LAW FIRM, PLC
14 the information is available from a mass of documents is insufficient.” Deyo, 84 Cal.App.3d at
15 784 (citations omitted). Here, while the documents may contain some facts, other facts that are
16 not written, are certainly omitted. Defendant is in possession of all the facts pertaining to its
17 internal policies governing complaints and the benefits its employee is entitled to. As such,
18 Defendant must provide code-complaint responses.
19 V. GOOD CAUSE EXISTS TO COMPEL DEFENDANT TO PROVIDE ALL
20 FACT, WITNESSES, AND DOCUMENTS THAT SUPPORT ITS
21 AFFIRMATIVE DEFENSES
22 In its Opposition, Defendant concedes to Plaintiff’s allegation that it does not have any
23 facts, witnesses and/or documents in support of its affirmative defenses Nos. 8, 10, 11, 15, 17,
24 21, 23, and 40. [See Opposition 3:17-19]. It further admits that those affirmative defenses are
25 simply placeholders asserted to avoid waiver. Id. Defendant’s argument that “we will provide
26 if we discover them later” is not convincing. Defendant has a duty to investigate, and the time
27 is now. See, e.g., Regency Health Services, Inc. v. Superior Court (1998) 64 Cal.App.4th 1496,
28 1504 [“When responding to discovery, counsel generally has a duty to disclose information
4
PLAINTIFF’S REPLY TO DEFENDANT NORMAN'S NURSERY, INC’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
FURTHER RESPONSES TO PLAINTIFF’S FORM INTERROGATORIES-EMPLOYMENT, SET ONE
1 known to counsel, such as the names of witnesses,” and “a party has a general duty to conduct
2 a reasonable investigation to obtain responsive information…, and must furnish information
3 from all sources under his or her control”]; Gordon v. Superior Court (1984) 161 Cal.App.3d
4 157, 167-168 [party furnishing answers to interrogatories cannot plead ignorance to
5 information which can be obtained from sources under its control]. As such, if there is no
6 supporting facts, witnesses and/or documents for an affirmative defense, Defendant should
7 simply state so.
8 Clearly, the information sought in Judicial Council-approved interrogatory no. 216.1 is
9 relevant to the subject matter of this action and there is no alternative source therefor.
10 Associated Brewers v. Superior Court (1964) 65 Cal.2d 583. The factual basis for a
11 defendant’s affirmative defenses and denials of material allegations is, intuitively, crucial to a
12 plaintiff’s preparation of his case for trial. See, e.g., Singer v. Superior Court (1960) 54 Cal.2d
13 318, 323-24. Discovery sought by this interrogatory has statutory authority. Code Civ. Proc. §
3055 Wilshire Blvd, 12th Floor
Los Angeles, CA 90010-1137
WILSHIRE LAW FIRM, PLC
14 2017.010 [“Discovery may relate to the claim or defense of…any party to the action”
15 (emphasis added)]. A defendant’s incomplete answer to this interrogatory may be used to
16 satisfy a plaintiff’s burden on a motion for summary judgment or adjudication of issues to
17 show there is no evidence of a triable issue of fact. Union Bank v. Superior Court (1995) 31
18 Cal.App.4th 573, 580-581.
19 Defendant’s argument that it can simply assert an affirmative defense without any basis
20 is also mistaken. The law is clear that affirmative defenses must be pled in the same fashion
21 and with the same specificity as a cause of action in a complaint. FPI Development, Inc vs. A1
22 Nakashima (1991) 231 Cal. App. 3d 367, 384 (“FPI”). The court in FPI repeatedly referred to
23 defendant’s answer, which was a general denial and included “conclusory allegations of
24 affirmative defense,” as a defective answer. (Id. at pps. 375, 376, 381, 382, 383). Specifically,
25 the court reasoned that when affirmative defenses “are proffered in the form of terse legal
26 conclusions, rather than as facts averred as carefully and with as much detail as the facts which
27 constitute the cause of action…alleged in the complaint[,]” then such affirmative defenses are
28 “not well pled.” Id. at 384.
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PLAINTIFF’S REPLY TO DEFENDANT NORMAN'S NURSERY, INC’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
FURTHER RESPONSES TO PLAINTIFF’S FORM INTERROGATORIES-EMPLOYMENT, SET ONE
1 Plaintiff is entitled to a verified response specifically addressing this affirmative
2 defense and stating the facts, and only those facts, supporting that defense, or admitting
3 Defendant has none. Plaintiff is entitled to a response identifying those persons—and only
4 those persons—with knowledge of these specific facts, and specification of what documents—
5 and only those documents—support that particular defense. Too often, defense firms use a
6 kitchens sink approach to pleading affirmative defenses, and no. 216.1 is aimed at boiling
7 down such excessive pleading to what is truly at issue. That is the case here. If there are simply
8 no facts to support a defense, the time to admit that is now. That is exactly what Defendant
9 failed to do here.
10 The Supreme Court has already confirmed the propriety of this type of interrogatory,
11 even before the Judicial Council, in its wisdom, drafted and approved one for use in nearly
12 every unlimited civil litigation case:
13 The interrogatory demanding that the [defendant] state ‘all the facts upon which
3055 Wilshire Blvd, 12th Floor
Los Angeles, CA 90010-1137
WILSHIRE LAW FIRM, PLC
14 you have based your denial of * all * the allegations contained in plaintiffs'
15 complaint’ is obviously wide-ranging. However, interrogatories are designed to
16 permit discovery of all facts ‘presently known to a defendant upon which it
17 predicates its defenses' ([citation]), and no reason appears why such an
18 interrogatory should not be permitted under this principle where, as here, the
19 answer consists solely of a disfavored overbroad general denial which gives the
20 plaintiff no guidance whatsoever regarding what specific matters legitimately
21 are at issue and warrant discovery.
22
Burke v. Superior Court of Sacramento County, 71 Cal.2d 276, 285 (1969).
23
24 Finally, defendant evades answering subsection (c) of this form interrogatory by either
25 identifying no documents or vaguely identifying documents with no reference to Bates
26 numbers, leaving Plaintiff to guess which documents it’s referring to. Defendant’s reference to
27 Civil Code section 2030.230 is unpersuasive as it only applies “if the burden or expense of
28 preparing or making it would be substantially the same for the party propounding the
6
PLAINTIFF’S REPLY TO DEFENDANT NORMAN'S NURSERY, INC’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
FURTHER RESPONSES TO PLAINTIFF’S FORM INTERROGATORIES-EMPLOYMENT, SET ONE
1 interrogatory as for the responding party.” It is much more burdensome for Plaintiff to sift
2 through Defendant’s entire document production for any relevant civil actions than for
3 Defendant to consult its own files. As such, Defendant must provide code-complaint responses.
4 IV. CONCLUSION
5 For the foregoing reasons, Plaintiff’s Motion to Compel Further Responses should be
6 granted in its entirety, and defendant NORMAN’S NURSERY, INC., should be directed to
7 provide complete answers to Form Interrogatories – Employment Nos. 201.1, 201.2, 201.4,
8 201.6, 207.1, 211.1, and 216.1.
9
10 DATED: April 11, 2024 WILSHIRE LAW FIRM
11
12
13 By________________________
3055 Wilshire Blvd, 12th Floor
Los Angeles, CA 90010-1137
WILSHIRE LAW FIRM, PLC
Jonathan C. Teller, Esq.
14 Nicol E. Hajjar, Esq
Attorneys for Plaintiff
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PLAINTIFF’S REPLY TO DEFENDANT NORMAN'S NURSERY, INC’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
FURTHER RESPONSES TO PLAINTIFF’S FORM INTERROGATORIES-EMPLOYMENT, SET ONE
1 PROOF OF SERVICE (2015.5 C.C.P.)
2
3 STATE OF CALIFORNIA)
) ss.
4 COUNTY OF LOS ANGELES)
5
I am employed in the County of Los Angeles, State of California. I am over the age of
th
6 18 and not a party to the within action; my business address is: 3055 Wilshire Blvd., 12 Floor,
Los Angeles, California 90010.
7
On April 12, 2024, I served on the parties of record in this action the foregoing
8 document described as PLAINTIFF’S REPLY TO DEFENDANT NORMAN'S
9 NURSERY, INC’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
FURTHER RESPONSES TO PLAINTIFF’S FORM INTERROGATORIES-
10 EMPLOYMENT, SET ONE addressed to the parties on the attached service list.
11 [ ] BY MAIL (C.C.P. '1013(a) - I caused the aforementioned document(s) to be served
upon the addressee as indicated on the attached service list. I am readily familiar with the firm's
12 practice of collection and processing correspondence for mailing. Under that practice it would be
13 deposited with U.S. postal service on that same day with postage thereon fully prepaid at Los
3055 Wilshire Blvd, 12th Floor
Los Angeles, CA 90010-1137
WILSHIRE LAW FIRM, PLC
Angeles, California in the ordinary course of business. I am aware that on motion of the party
14 served, service is presumed invalid if postal cancellation date or postage meter date is more than
one day after date of deposit for mailing in affidavit.
15
[] BY FACSIMILE (C.C.P. '1013(e); C.R.C. 2.306) - I caused the facsimile transmission
16
to the facsimile number(s) indicated on the attached service list. Upon completion of the said
17 facsimile transmission, the facsimile machine issued a report showing the transmission was
complete and without error.
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[ X ] ELECTRONIC SERVICE - Pursuant to stipulation of the parties, this document is
19 served only by emailing the document(s) to the person(s) at the email address(es) listed which
were the last known emails provided. There will be no hard copy sent. This will be the only
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service copy.
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[] BY PERSONAL SERVICE (C.C.P. '1011) - I caused the aforementioned document(s)
22 to be personally served upon the addressee as indicated on the attached service list.
23 Executed on April 12, 2024, at Los Angeles, California.
24
I declare under penalty of perjury under the laws of the State of California that the above
25 is true and correct.
26 ___________________
27 Christine Ohanyan
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PLAINTIFF’S REPLY TO DEFENDANT NORMAN'S NURSERY, INC’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
FURTHER RESPONSES TO PLAINTIFF’S FORM INTERROGATORIES-EMPLOYMENT, SET ONE
1 SERVICE LIST
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Spencer Waldron, Esq. Attorneys for Defendant,
4 Lyle Chan, Esq. NORMAN'S NURSERY, INC.
Fisher & Phillips LLP
5 2050 Main Street, Suite 1000
Irvine, CA 92614
6 Tel: (949) 208-8236
Email: swaldron@fisherphillips.com
7
lchan@fisherphillips.com
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Cc: Brianna Huschke
9 bhuschke@fisherphillips.com
Jennifer Gonzales
10 jgonzales@fisherphillips.com
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13 Brandon Saxon, Esq. Attorneys for Defendant,
3055 Wilshire Blvd, 12th Floor
Los Angeles, CA 90010-1137
WILSHIRE LAW FIRM, PLC
Esperanza Alcazar, Esq. CUAUHTEMOC RODRIGUEZ
14 GORDON REES SCULLY MANSUKHANI
15 101 W. Broadway, Suite 2000
San Diego, CA 92101
16 Tel: 619-544-7229
Email: bsaxon@grsm.com
17 ealcazar@grsm.com
18 Cc: Mary Ann Santos
19 msantos@grsm.com
Maggie Diaz
20 mxdiaz@grsm.com
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PLAINTIFF’S REPLY TO DEFENDANT NORMAN'S NURSERY, INC’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
FURTHER RESPONSES TO PLAINTIFF’S FORM INTERROGATORIES-EMPLOYMENT, SET ONE
Preview
1 Jonathan C. Teller, Esq. SBN 280312 TellerTeam@wilshirelawfirm.com 2 Nicol E. Hajjar, Esq., SBN 303102 NicolHajjarsTeam@wilshirelawfirm.com 3 WILSHIRE LAW FIRM 4 3055 Wilshire Blvd., 12th Floor Los Angeles, California 90010 5 Telephone: (213) 381-9988 Facsimile: (213) 381-9989 6 Attorneys for Plaintiff, JOHN DOE 7 8 SUPERIOR COURT FOR THE STATE OF CALIFORNIA 9 COUNTY OF SANTA BARBARA 10 11 Case No. 23CV01348 JOHN DOE, an individual, 12 Plaintiff, 13 PLAINTIFF’S REPLY TO DEFENDANT 3055 Wilshire Blvd, 12th Floor Los Angeles, CA 90010-1137 WILSHIRE LAW FIRM, PLC NORMAN'S NURSERY, INC’S 14 v. OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO 15 PLAINTIFF’S FORM NORMAN'S NURSERY, INC. a 16 INTERROGATORIES-EMPLOYMENT, Corporation; CUAUHTEMOC SET ONE RODRIGUEZ, an individual; and DOES 1 17 through 50, inclusive, Date: April 19, 2024 18 Time: 10:00am Dept.: 4 19 Defendants. 20 Action Filed: April 03, 2023 21 Trial: Not set. 22 23 Plaintiff herein submits his Reply to Defendant’s Opposition to Plaintiff’s Motion to 24 Compel Further Responses to Form Interrogatories – Employment, Set One. 25 // 26 // 27 // 28 // 1 PLAINTIFF’S REPLY TO DEFENDANT NORMAN'S NURSERY, INC’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF’S FORM INTERROGATORIES-EMPLOYMENT, SET ONE 1 MEMORANDUM OF POINTS & AUTHORITIES 2 I. INTRODUCTION 3 Plaintiff John Doe (“Plaintiff”) respectfully submits this reply brief in support of his 4 motion to compel further responses from Defendant Norman’s Nursery (“Defendant”) as 5 sought in Plaintiff’s Form Interrogatories-Employment Law (Set One). 6 With regard to Plaintiff’s Form Interrogatories – Employment Nos. 201.1, 201.2, 201.4 7 and 201.6, Defendant deliberately misconstrued Judicial Council’s definition of “resignation” 8 to mean “affirmative termination.” This is facially false. Defendant’s refusal to conduct proper 9 investigation based on this misinterpretation is inappropriate and violates court-mandated 10 requirements. 11 With regard to Plaintiff’s Form Interrogatories – Employment Nos. 207.1 and 211.1, 12 Defendant's reliance on Civil Code section 2030.230 is misplaced. It is much more 13 burdensome for Plaintiff to compile, audit and summarize Defendant’s own documents 3055 Wilshire Blvd, 12th Floor Los Angeles, CA 90010-1137 WILSHIRE LAW FIRM, PLC 14 production. Referring to a big pile of documents in response to an Interrogatory is also evasive. 15 Defendant’s Opposition with regarding to Form Interrogatory No. 216.1 boils down to 16 this, “after reasonable inquiry and diligent investigation, we do not have any supporting facts, 17 witnesses and documents for affirmative defenses Nos. 8, 10, 11, 15, 17, 21, 23, and 40, but we 18 are going to assert them anyways in case something comes up later.” [See Opposition 3:15-21] 19 This argument is flawed in two-prong. First, Defendant failed to fulfill its duty of investigation. 20 Party furnishing answers to interrogatories cannot plead ignorance to information which can be 21 obtained from sources under its control, and it must furnish information from all sources under 22 its control. See Regency Health Services, Inc. v. Superior Court (1998) 64 Cal.App.4th 1496, 23 1504; Gordon v. Superior Court (1984) 161 Cal.App.3d 157, 167-168. Second, Defendant 24 failed to plead its affirmative defenses with the same level of specificity as Plaintiff’s causes of 25 action. FPI Development, Inc vs. A1 Nakashima (1991) 231 Cal. App. 3d 367, 384. As such, if 26 there are no supporting facts, witnesses and/or documents for an affirmative defense, 27 Defendant should simply state so in a verified response. 28 2 PLAINTIFF’S REPLY TO DEFENDANT NORMAN'S NURSERY, INC’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF’S FORM INTERROGATORIES-EMPLOYMENT, SET ONE 1 “Where the question is specific and explicit, an answer which supplies only a portion of 2 the information sought is wholly insufficient.” Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 3 783. Facially, this interrogatory requires the responding party to address denials of material 4 allegations and affirmative defenses. The responding party has the burden to justify any 5 objection or failure to fully respond to this interrogatory. Coy v. Superior Court, 58 Cal.App.2d 6 210 (1962). Defendant has failed to do so. Plaintiff’s motion should be granted. 7 II. DEFENDANT DELIBERATELY MISCONTRUED FORM INTERROGATORY 8 NOS. 201.1, 201.2, 201.4 AND 201.6 TO AVOID DISCOVERY 9 Defendant does not dispute Plaintiff’s argument that Judicial Council broadly defined 10 “termination” to include resignation. [See Opposition 3:11-12.] It simply argues that this does 11 not change its analysis because a resignation was not “an affirmative termination” so 12 Defendant “would not have any responsive information.” This argument has no merit. 13 First, this response is facially non code compliant. Defendant has a duty to make a good 3055 Wilshire Blvd, 12th Floor Los Angeles, CA 90010-1137 WILSHIRE LAW FIRM, PLC 14 faith investigation in answering Interrogatories. In answering interrogatories, a party must 15 furnish information available from sources under the party’s control. Deyo v. Kilbourne (1978) 16 84 Cal. App. 3d 771, 782 Regency Health Services, Inc. v. Superior Court (1998) 64 Cal. App. 17 4th 1496, 1504. Accordingly, “a corporation or public agency . . . has a . . . duty to obtain 18 information from all sources under its control . . . .” Gordon v. Superior Court (1984) 161 Cal. 19 App. 3d 157, 167-168 (emphasis added). Here, Defendant refused to engage in good-faith 20 discovery based on the sole belief that it would not have responsive information. It is evident 21 that Defendant did not bother to conduct any investigations. This is insufficient. These 22 Interrogatories must be supplemented. 23 Additionally, Defendant deliberately misconstrues “resignation” as “affirmative 24 termination.” This is clearly erroneous. By its plain meaning, resignation and affirmative 25 termination refer to different courses of action. It is improper for a responding party to 26 “deliberately misconstru[e] [a] question” for purposes of objection as to engage in mere “game 27 playing,” a tactic which is sanctionable. Clement v. Alegre (2009) 177 Cal. App. 1277, 1286. 28 3 PLAINTIFF’S REPLY TO DEFENDANT NORMAN'S NURSERY, INC’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF’S FORM INTERROGATORIES-EMPLOYMENT, SET ONE 1 IV. DEFENDANT.S RELIANCE ON CODE CIV. PRO § 2030.230 IN RESPONSE 2 TO FORM INTERROGATORIES NOS. 207.1 AND 211.1 IS IN APPROPRIATE 3 Defendant’s reference to Civil Code section 2030.230 is unpersuasive as it only applies 4 “if the burden or expense of preparing or making it would be substantially the same for the 5 party propounding the interrogatory as for the responding party.” It is much more burdensome 6 for Plaintiff to sift through Defendant’s document production for any relevant civil actions than 7 for Defendant to consult its own files. 8 Furthermore, invocation of Section 2030.230 is only properly asserted, when in order to 9 answer an interrogatory, it is necessary to make a compilation, abstract audit or summary of the 10 records. “A party who makes recourse to this section declares that the information in the 11 specified records is true, accurate, and complete, and that no other information is available to 12 the answering party. This exception applies only if the summary is not available and the party 13 specifies the records from which the information can be ascertained. “A broad statement that 3055 Wilshire Blvd, 12th Floor Los Angeles, CA 90010-1137 WILSHIRE LAW FIRM, PLC 14 the information is available from a mass of documents is insufficient.” Deyo, 84 Cal.App.3d at 15 784 (citations omitted). Here, while the documents may contain some facts, other facts that are 16 not written, are certainly omitted. Defendant is in possession of all the facts pertaining to its 17 internal policies governing complaints and the benefits its employee is entitled to. As such, 18 Defendant must provide code-complaint responses. 19 V. GOOD CAUSE EXISTS TO COMPEL DEFENDANT TO PROVIDE ALL 20 FACT, WITNESSES, AND DOCUMENTS THAT SUPPORT ITS 21 AFFIRMATIVE DEFENSES 22 In its Opposition, Defendant concedes to Plaintiff’s allegation that it does not have any 23 facts, witnesses and/or documents in support of its affirmative defenses Nos. 8, 10, 11, 15, 17, 24 21, 23, and 40. [See Opposition 3:17-19]. It further admits that those affirmative defenses are 25 simply placeholders asserted to avoid waiver. Id. Defendant’s argument that “we will provide 26 if we discover them later” is not convincing. Defendant has a duty to investigate, and the time 27 is now. See, e.g., Regency Health Services, Inc. v. Superior Court (1998) 64 Cal.App.4th 1496, 28 1504 [“When responding to discovery, counsel generally has a duty to disclose information 4 PLAINTIFF’S REPLY TO DEFENDANT NORMAN'S NURSERY, INC’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF’S FORM INTERROGATORIES-EMPLOYMENT, SET ONE 1 known to counsel, such as the names of witnesses,” and “a party has a general duty to conduct 2 a reasonable investigation to obtain responsive information…, and must furnish information 3 from all sources under his or her control”]; Gordon v. Superior Court (1984) 161 Cal.App.3d 4 157, 167-168 [party furnishing answers to interrogatories cannot plead ignorance to 5 information which can be obtained from sources under its control]. As such, if there is no 6 supporting facts, witnesses and/or documents for an affirmative defense, Defendant should 7 simply state so. 8 Clearly, the information sought in Judicial Council-approved interrogatory no. 216.1 is 9 relevant to the subject matter of this action and there is no alternative source therefor. 10 Associated Brewers v. Superior Court (1964) 65 Cal.2d 583. The factual basis for a 11 defendant’s affirmative defenses and denials of material allegations is, intuitively, crucial to a 12 plaintiff’s preparation of his case for trial. See, e.g., Singer v. Superior Court (1960) 54 Cal.2d 13 318, 323-24. Discovery sought by this interrogatory has statutory authority. Code Civ. Proc. § 3055 Wilshire Blvd, 12th Floor Los Angeles, CA 90010-1137 WILSHIRE LAW FIRM, PLC 14 2017.010 [“Discovery may relate to the claim or defense of…any party to the action” 15 (emphasis added)]. A defendant’s incomplete answer to this interrogatory may be used to 16 satisfy a plaintiff’s burden on a motion for summary judgment or adjudication of issues to 17 show there is no evidence of a triable issue of fact. Union Bank v. Superior Court (1995) 31 18 Cal.App.4th 573, 580-581. 19 Defendant’s argument that it can simply assert an affirmative defense without any basis 20 is also mistaken. The law is clear that affirmative defenses must be pled in the same fashion 21 and with the same specificity as a cause of action in a complaint. FPI Development, Inc vs. A1 22 Nakashima (1991) 231 Cal. App. 3d 367, 384 (“FPI”). The court in FPI repeatedly referred to 23 defendant’s answer, which was a general denial and included “conclusory allegations of 24 affirmative defense,” as a defective answer. (Id. at pps. 375, 376, 381, 382, 383). Specifically, 25 the court reasoned that when affirmative defenses “are proffered in the form of terse legal 26 conclusions, rather than as facts averred as carefully and with as much detail as the facts which 27 constitute the cause of action…alleged in the complaint[,]” then such affirmative defenses are 28 “not well pled.” Id. at 384. 5 PLAINTIFF’S REPLY TO DEFENDANT NORMAN'S NURSERY, INC’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF’S FORM INTERROGATORIES-EMPLOYMENT, SET ONE 1 Plaintiff is entitled to a verified response specifically addressing this affirmative 2 defense and stating the facts, and only those facts, supporting that defense, or admitting 3 Defendant has none. Plaintiff is entitled to a response identifying those persons—and only 4 those persons—with knowledge of these specific facts, and specification of what documents— 5 and only those documents—support that particular defense. Too often, defense firms use a 6 kitchens sink approach to pleading affirmative defenses, and no. 216.1 is aimed at boiling 7 down such excessive pleading to what is truly at issue. That is the case here. If there are simply 8 no facts to support a defense, the time to admit that is now. That is exactly what Defendant 9 failed to do here. 10 The Supreme Court has already confirmed the propriety of this type of interrogatory, 11 even before the Judicial Council, in its wisdom, drafted and approved one for use in nearly 12 every unlimited civil litigation case: 13 The interrogatory demanding that the [defendant] state ‘all the facts upon which 3055 Wilshire Blvd, 12th Floor Los Angeles, CA 90010-1137 WILSHIRE LAW FIRM, PLC 14 you have based your denial of * all * the allegations contained in plaintiffs' 15 complaint’ is obviously wide-ranging. However, interrogatories are designed to 16 permit discovery of all facts ‘presently known to a defendant upon which it 17 predicates its defenses' ([citation]), and no reason appears why such an 18 interrogatory should not be permitted under this principle where, as here, the 19 answer consists solely of a disfavored overbroad general denial which gives the 20 plaintiff no guidance whatsoever regarding what specific matters legitimately 21 are at issue and warrant discovery. 22 Burke v. Superior Court of Sacramento County, 71 Cal.2d 276, 285 (1969). 23 24 Finally, defendant evades answering subsection (c) of this form interrogatory by either 25 identifying no documents or vaguely identifying documents with no reference to Bates 26 numbers, leaving Plaintiff to guess which documents it’s referring to. Defendant’s reference to 27 Civil Code section 2030.230 is unpersuasive as it only applies “if the burden or expense of 28 preparing or making it would be substantially the same for the party propounding the 6 PLAINTIFF’S REPLY TO DEFENDANT NORMAN'S NURSERY, INC’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF’S FORM INTERROGATORIES-EMPLOYMENT, SET ONE 1 interrogatory as for the responding party.” It is much more burdensome for Plaintiff to sift 2 through Defendant’s entire document production for any relevant civil actions than for 3 Defendant to consult its own files. As such, Defendant must provide code-complaint responses. 4 IV. CONCLUSION 5 For the foregoing reasons, Plaintiff’s Motion to Compel Further Responses should be 6 granted in its entirety, and defendant NORMAN’S NURSERY, INC., should be directed to 7 provide complete answers to Form Interrogatories – Employment Nos. 201.1, 201.2, 201.4, 8 201.6, 207.1, 211.1, and 216.1. 9 10 DATED: April 11, 2024 WILSHIRE LAW FIRM 11 12 13 By________________________ 3055 Wilshire Blvd, 12th Floor Los Angeles, CA 90010-1137 WILSHIRE LAW FIRM, PLC Jonathan C. Teller, Esq. 14 Nicol E. Hajjar, Esq Attorneys for Plaintiff 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 PLAINTIFF’S REPLY TO DEFENDANT NORMAN'S NURSERY, INC’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF’S FORM INTERROGATORIES-EMPLOYMENT, SET ONE 1 PROOF OF SERVICE (2015.5 C.C.P.) 2 3 STATE OF CALIFORNIA) ) ss. 4 COUNTY OF LOS ANGELES) 5 I am employed in the County of Los Angeles, State of California. I am over the age of th 6 18 and not a party to the within action; my business address is: 3055 Wilshire Blvd., 12 Floor, Los Angeles, California 90010. 7 On April 12, 2024, I served on the parties of record in this action the foregoing 8 document described as PLAINTIFF’S REPLY TO DEFENDANT NORMAN'S 9 NURSERY, INC’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF’S FORM INTERROGATORIES- 10 EMPLOYMENT, SET ONE addressed to the parties on the attached service list. 11 [ ] BY MAIL (C.C.P. '1013(a) - I caused the aforementioned document(s) to be served upon the addressee as indicated on the attached service list. I am readily familiar with the firm's 12 practice of collection and processing correspondence for mailing. Under that practice it would be 13 deposited with U.S. postal service on that same day with postage thereon fully prepaid at Los 3055 Wilshire Blvd, 12th Floor Los Angeles, CA 90010-1137 WILSHIRE LAW FIRM, PLC Angeles, California in the ordinary course of business. I am aware that on motion of the party 14 served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. 15 [] BY FACSIMILE (C.C.P. '1013(e); C.R.C. 2.306) - I caused the facsimile transmission 16 to the facsimile number(s) indicated on the attached service list. Upon completion of the said 17 facsimile transmission, the facsimile machine issued a report showing the transmission was complete and without error. 18 [ X ] ELECTRONIC SERVICE - Pursuant to stipulation of the parties, this document is 19 served only by emailing the document(s) to the person(s) at the email address(es) listed which were the last known emails provided. There will be no hard copy sent. This will be the only 20 service copy. 21 [] BY PERSONAL SERVICE (C.C.P. '1011) - I caused the aforementioned document(s) 22 to be personally served upon the addressee as indicated on the attached service list. 23 Executed on April 12, 2024, at Los Angeles, California. 24 I declare under penalty of perjury under the laws of the State of California that the above 25 is true and correct. 26 ___________________ 27 Christine Ohanyan 28 8 PLAINTIFF’S REPLY TO DEFENDANT NORMAN'S NURSERY, INC’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF’S FORM INTERROGATORIES-EMPLOYMENT, SET ONE 1 SERVICE LIST 2 3 Spencer Waldron, Esq. Attorneys for Defendant, 4 Lyle Chan, Esq. NORMAN'S NURSERY, INC. Fisher & Phillips LLP 5 2050 Main Street, Suite 1000 Irvine, CA 92614 6 Tel: (949) 208-8236 Email: swaldron@fisherphillips.com 7 lchan@fisherphillips.com 8 Cc: Brianna Huschke 9 bhuschke@fisherphillips.com Jennifer Gonzales 10 jgonzales@fisherphillips.com 11 12 13 Brandon Saxon, Esq. Attorneys for Defendant, 3055 Wilshire Blvd, 12th Floor Los Angeles, CA 90010-1137 WILSHIRE LAW FIRM, PLC Esperanza Alcazar, Esq. CUAUHTEMOC RODRIGUEZ 14 GORDON REES SCULLY MANSUKHANI 15 101 W. Broadway, Suite 2000 San Diego, CA 92101 16 Tel: 619-544-7229 Email: bsaxon@grsm.com 17 ealcazar@grsm.com 18 Cc: Mary Ann Santos 19 msantos@grsm.com Maggie Diaz 20 mxdiaz@grsm.com 21 22 23 24 25 26 27 28 9 PLAINTIFF’S REPLY TO DEFENDANT NORMAN'S NURSERY, INC’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF’S FORM INTERROGATORIES-EMPLOYMENT, SET ONE