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Shaun Setareh (SBN 204514)
shaun@setarehlaw.com
William M. Pao (SBN 219846)
william@setarehlaw.com
Alexandra R. McIntosh (SBN 320904)
alex@setarehlaw.com
SETAREH LAW GROUP
315 South Beverly Drive, Suite 315
Beverly Hills, California 90212
Telephone: (310) 888-7771
Facsimile: (310) 888-0109
Attorneys for Plaintiff
MARCELO A IGNELZI
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA CLARA
UNLIMITED JURISDICTION
MARCELO A IGNELZI, on behalf of himself,
all others similarly situated,
Plaintiff,
vs.
DA DEFENSE LOGISTICS HQ, LLC, a
Texas Limited Liability Company; and DOES
1 through 50, inclusive,
Defendants.
Case No. 17CV318170
Assigned For All Purposes To The Honorable
Thomas E. Kuhnle, Department 5
PLAINTIFF’S NOTICE OF MOTION AND
MOTION TO COMPEL DEFENDANT DA
DEFENSE LOGISTICS HQ, LLC’S
FURTHER RESPONSES TO REQUEST
FOR PRODUCTION OF DOCUMENTS
(SET ONE); MEMORANDUM OF POINTS
AND AUTHORITIES; DECLARATION OF
WILLIAM M. PAO; [PROPOSED] ORDER
Date: August 23, 2019
Time: 9:00 a.m.
Place: Department 5
Complaint Filed: October 26, 2017
TAC Filed: April 26, 2019
PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL DEFENDANT DA DEFENSE, INC’S
FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE)cm YN DH FB WY =
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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on August 23, 2019 in Department 5 located at Superior
Court of California, County of Santa Clara, 191 N. First Street, San Jose, California, at 9:00 a.m.,
Plaintiff MARCELO A IGNELZI (“Plaintiff”) will and does hereby move for an order compelling
Defendant DA DEFENSE LOGISTICS HQ, LLC (“Defendant”) to provide further responses to
Plaintiff's Request for Production of Documents, (Set One).
This motion will be made pursuant to Code of Civil Procedure §§ 2031.010 et seq.;
2023.010 et seq.; 2030.290 et seq.; 2030.240 et seq.; and 2030.300 et seq., on the ground that
Defendant’s response to Plaintiff's Request for Production of Documents, (Set One) is insufficient
and non-responsive.
This motion will be based upon this Notice of Motion and Motion, the Memorandum of
Points and Authorities, Separate Statement, the Declaration of Alexandra R. McIntosh, the lodged
exhibits, filed and served herewith, the complete files and records in this action and upon such oral
and documentary evidence as may be presented at or before the hearing of this motion.
DATED: July 15, 2019 SETAREH LAW GROUP
SHAUN SETAREH
WILLIAM M. PAO
ALEXANDRA R. MCINTOSH
Attomeys for Plaintiff
MARCELO A. IGNELZI
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PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL DEFENDANT DA DEFENSE, INC.’S
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MEMORANDUM OF POINTS AND AUTHORITIES
L INTRODUCTION
In this class action for alleged violations of the Labor Code and the Business and
Professions Code, Defendant DA DEFENSE, INC. (“Defendant”) refuses without proper
justification to provide full and complete responsive answers to Plaintiff MARCELO A. IGNELZI’s
(“Plaintiff”) discovery requests.
Defendant provided incomplete and non-responsive responses and boilerplate objections to
most of Plaintiff's discovery requests and refuses to engage in a meaningful meet and confer,
despite Plaintiff's best efforts. Plaintiff is now forced to seek relief from the Court and bring this
Motion to Compel with respect to his requests for Production of Documents, (Set One) (“RFP”)
propounded on Defendant. The discovery requests at issue here seek documents relating to payroll
and timekeeping for the class members.
Faced with routine and well-defined discovery requests, Defendant served meritless
objections combined with non-responsive and evasive answers to many of Plaintiff's discovery
requests. When prompted for further responses by Plaintiffs meet and confer efforts, Defendant
failed to supplement Plaintiff's requests regarding the class payroll records and timekeeping data.
Plaintiff seeks legitimate discovery specifically related to class certification in this litigation. Asa
result of Defendant’s failure to comply with its obligations under the Code of Civil Procedure,
Plaintiff is still without sufficient information necessary to complete a motion for class certification.
Defendant’s refusal to comply is a clear abuse of the discovery process. As such, Plaintiff is
entitled to an order compelling Defendant to provide supplemental responses to his formal
discovery requests.
Tl. STATEMENT OF FACTS AND PROCEDURAL HISTORY
A. Discovery At Issue
On April 11, 2018, Plaintiff served Defendant with Requests for Production of
Documents (Set One) which seeks, among other documents, class timekeeping and payroll data.
(Declaration of William M. Pao [Pao Declaration], at P 4).
On May 30, 2018, Defendant served its responses that consisted largely of boilerplate
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Objections, including that the request is overly burdensome and oppressive; the request seeks class
information prior to certification; and the request seeks information that is protected by the privacy
tights of Defendant. (Pao Declaration, { 5).
On December 20, 2018, Defendant served a supplemental response to Plaintiff's Request for
Production Number 4, which requests all documents in support of Defendant’s affirmative defenses.
Defendant’s further response was limited only to Plaintiff. (Pao Declaration, 6).
Pursuant to Code of Civil Procedure section 2017.010, Plaintiff is entitled to obtain
discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the
pending action or to the determination of any motion made in that action, if the matter either is itself
admissible or appears reasonably calculated to lead to the discovery of admissible evidence.
Discovery may relate to the claim or defense of the party seeking discovery or of any other party to
the action. Discovery may be obtained of the identity and location of persons having knowledge of
any discoverable matter, as well as of the existence, description, nature, custody, condition and
location of any document, electronically stored information, tangible thing, or land or other
property.” It is also well-settled that “admissibility is not prerequisite to discovery.” Volkswagen of
America, Inc. v. Superior Court (2006) 139 Cal. App. 4th 1481, 1490. Rather, “the scope of
discovery is very broad” and includes the right to “obtain the identity and location of persons
having knowledge of any discoverable matter.” Tien v. Superior Court (2006) 139 Cal. App. 4th
528, 535.
Plaintiff’s discovery requests seek relevant and discoverable information, such as, class
timekeeping and payroll data. Defendant has unfairly withheld this crucial information, which
Plaintiff is clearly entitled to for purposes of class certification.
B. Meet and Confer Process
On July 2, 2018, Plaintiff engaged in written meet and confer efforts by sending a detailed
letter to Defendant’s counsel regarding the deficiencies in its response to Plaintiffs discovery
request, including its failure to produce the class payroll and timekeeping data. In the meet and
confer letter, Plaintiff supplied Defendant with the arguments that support this motion. (Pao
Declaration, § 7).
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PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL DEFENDANT DA DEFENSE, INC.’S
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On August 24, 2018, H. Scott Leviant, former lead counsel for Plaintiff, and Sarah K.
Simon, lead counsel for Defendant met and conferred in person regarding Defendant’s deficient
responses to Plaintiff's first set of discovery requests, including Defendant’s failure to produce the
class time keeping and payroll data. During this in person meet and confer conference, Mr. Leviant,
further explained the authorities included in Plaintiff's written meet and confer letter and requested
that Defendant’s provide supplemental responses to Plaintiff's Requests for Production Nos. 5 and 6
seeking the class payroll and timekeeping data. Ms. Simon refused. (Pao Declaration, P 8).
Consequently, on January 18, 2019, the parties attended an informal discovery conference
before the Honorable Thomas E. Kuhnle. During the conference, Judge Kuhnle made it clear that
Defendant should provide a sampling of the class timekeeping and payroll data. As such, following
the conference, Plaintiff emailed Defendant to inquire as to whether Defendant would provide a
reasonable representative sampling of the payroll and class data. Defendant refused. (Pao
Declaration, [PP 9-12).
Consequently, Plaintiff now brings this motion.
Ill ARGUMENT
A. Legal Standards Governing Discovery and Motions to Compel
Unless limited by order of the court, any party may obtain discovery regarding any matter,
not privileged, that is relevant to the subject matter involved if the matter either is itself admissible
in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. See
Code Civ. Proc. § 2017.010. The “relevance to the subject matter” and “reasonably calculated to
lead to discovery of admissible evidence” standards are applied liberally. Information is “relevant to
the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial, or
facilitating settlement thereof. Gonzalez v. Superior Court (City of San Fernando) (1995) 33 Cal.
App. 4th 1539, 1546. Any doubt is generally resolved in favor of permitting discovery, particularly
where the precise issues in the case are not yet clearly established. Colonial Life & Acc. Ins. Co. v.
Superior Court (Perry) (1982) 31 Cal.3d 785, 790. Thus, the scope of permissible discovery is one
of reason, logic and common sense. Lipton v. Super. Ct. (Lawyers’ Mut. Ins. Co.) (1996) 48 Cal.
App. 4th 1599, 1611.
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PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL DEFENDANT DA DEFENSE, INC.’S
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A motion to compel further responses under Code of Civil Procedure section 2031.310(a) is
the appropriate remedy where the responding party has furnished responses to document requests,
but the propounding party believes that: (1) the responding party’s statement of compliance with the
demand is incomplete; (2) the responding party’s representation of inability to comply is inadequate,
incomplete, or evasive; or (3) the responding party’s objection in the response is without merit or
too general.
B. Plaintiff is Entitled to Class-wide Time Records and Payroll Data as Such
Discovery is Relevant to Damages and Class Certification Issues
Plaintiff is entitled to discover class-wide time records and payroll data. This information is
relevant to damages, as well as to certification factors such as numerosity, typicality, commonality,
and ascertainability. See, e.g., Ho, et al v. Ernst & Young LLP, 2009 WL 1394007, *1 (N.D. Cal.
2007) (holding that in wage-and-hour class action, plaintiff entitled to discovery class-wide time and
activity records because they “may indicate whether the putative class members did work that was
sufficiently similar to justify a class action”); see also Kiser v. Pride Communications, Inc., 2011
WL 5080162, *3 (D. Nev. 2011) [emphasis added] (holding that in wage-and-hour class action,
plaintiff entitled to discover payroll records because these documents would demonstrate if the
class is certifiable, “as they go to questions of commonality, typicality, and numerosity.”)
[emphasis added]. The requested information is therefore relevant to, among other things,
numerosity, predominance, typicality, and whether this case will be manageable as a class action.
Indeed, the disclosure of names, addresses, and telephone numbers is a common practice in
the class action context. See Currie—White v. Blockbuster, Inc., 2010 WL 1526314, at *2 (N.D. Cal.
Apr. 15, 2010); see also Babbitt v. Albertson's Inc., 1992 WL 605652, at *6 (N.D. Cal. Nov. 30,
1992) (at pre-certification stage of Title VII class action, defendant employer ordered to disclose
names, addresses, telephone numbers and social security numbers of current and past employees);
Putnam v. Eli Lilly & Co., 508 F.Supp.3d 812, 814 (C.D. Cal. 2007) (ordering production of the
names, addresses, and telephone numbers of putative class members, subject to a protective order,
including those who worked in a sales division other than the plaintiffs own).
Given the relevant case law and the fact that discovery in this case is not bifurcated, Plaintiff
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PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL DEFENDANT DA DEFENSE, INC.’S
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is clearly entitled to the discovery she seeks. The information Plaintiff seeks here, time records and
payroll data, are clearly far less invasive than names or contact information. Additionally, the names
of individuals can be redacted instead of denying the discovery sought.
Cc. Plaintiff Is Entitled To Class Discovery
Plaintiff is entitled to discover class discovery. This information is relevant to CCP 382
certification factors such as numerosity, typicality, commonality, and ascertainability. Several case
laws entitle Plaintiff to class discovery. As stated by the Ninth Circuit, “discovery is likely warranted
where it will resolve factual issues necessary for the determination of whether the action may be
maintained as a class action, such as whether a class or set of subclasses exist. (Kamm v. California
City Development Co.(9th Cir. 1975) 509 F.2d 205, 210 To deny discovery where it is necessary to
determine the existence of a class or set of subclasses would be an abuse of discretion. (Doninger
v. Pacific Northwest Bell, Inc. (9 Cir. 1977) 564 F.2d 1304, 1313 (citing Kamm, 509 F.2d at
210). “[T]he better and more advisable practice for a District Court to follow is to afford the litigants
an opportunity to present evidence as to whether a class action was maintainable. And, the necessary
antecedent to the presentation of evidence is, in most cases, enough discovery to obtain the material,
especially when the information is within the sole possession of the defendant.” (Doniger at 1313;
see also Artis v. Deere & Co, 276 F.R.D. 348.) “No longer can the time-honored cry of ‘fishing
expedition’ serve to preclude a party from inquiring into facts underlying his opponent’s case.”
(Hickman vy. Taylor (1947) 329 US 495, 506-507).
Courts have acknowledged that "due process requires 'an opportunity to conduct discovery
on class issues before ... documents in support of or in opposition to the must be filed,' and 'a full
opportunity to brief the issues and present evidence." (Bartold v. Glendale Federal Bank (2000) 81
Cal.App. 4th 816, 827, overturned on unrelated grounds as stated in Garcia v. ARCS Mortgage, Inc.
(Cal. App. Oct. 18, 2002) 2002 WL 31341254). Accordingly, Defendant may not avoid its obligation
to produce evidence pertinent to class discovery.
Pursuant to these authorities and factual circumstances, Plaintiff requested that Defendant
provide complete documents to requests asking for class-wide data relating to payroll and timekeeping
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PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL DEFENDANT DA DEFENSE, INC.’S
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data (Requests Nos. 5-6). The information is essential for Plaintiff to analyze the claims asserted in her
lawsuit, including but not limited to Plaintiff's allegation that Defendant failed to provide meal periods
and rest periods, Defendant failed to pay hourly wages, and Defendant failed to provide accurate written
wage statements, among others.
Given the necessity of Plaintiff to file this Motion in order to obtain the time and payroll records
of the putative class, Plaintiff requests that Defendant be ordered to provide all time and payroll records.
Or in the alternative, if this Court orders Defendant to produce only a sampling, that Defendant be
ordered to provide time and payroll records for at least 1/3 of the relatively small class of 360 employees
and stipulate that this sampling is indicative of the class.
E. CONCLUSION
Based upon the foregoing, Plaintiff requests an Order that requires Defendant to supplement its
discovery responses as delineated herein and in Plaintiff's supporting documents filed herewith.
Because Plaintiff has been required to bring this motion, Plaintiff requests that Defendant be required to
provide the timekeeping and payroll records for the entire putative class, which is estimated to be 360
employees.
DATED: July 15, 2019 SETAREH LAW GROUP
Joe 4
SHAUN SETAREH
WILLIAM M. PAO
ALEXANDRA R. MCINTOSH
Attorneys for Plaintiff
MARCELO A. IGNELZI
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PROOF OF SERVICE
I am a citizen of the United States and am employed in the County of Los Angeles, State
of California. I am over the age of 18 and not a party to the within action. My business address
is 315 South Beverly Drive, Suite 315 Beverly Hills, CA 90212.
On July 15, 2019, served the foregoing documents described as:
PLAINTIFF'S NOTICE OF MOTION AND MOTION TO COMPEL DEFENDANT DA
DEFENSE LOGISTICS HQ, LLC'S FURTHER RESPONSES TO REQUEST FOR
PRODUCTION OF DOCUMENTS (SET ONE); MEMORANDUM OF POINTS AND
AUTHORITIES; DECLARATION OF WILLIAM M. PAO; [PROPOSED] ORDER
PLAINTIFF'S SEPARATE STATEMENT OF FACTS IN SUPPORT OF PLAINTIFF'S
MOTION TO COMPEL DA DEFENSE HQ, LLC'S FURTHER RESPONSES TO
REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE)
DECLARATION OF WILLIAM M. PAO IN SUPPORT OF PLAINTIFF'S MOTION TO
COMPEL DEFENDANT DA DEFENSE LOGISTICS HQ, LLC'S FURTHER
RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION (SET ONE)
[PROPOSED] ORDER GRANTING PLAINTIFF'S MOTION TO COMPEL
DEFENDANT DA DEFENSE LLC'S FURTHER RESPONSES TO REQUEST FOR
PRODUCTION OF DOCUMENTS (SET ONE)
in this action by transmitting a true copy thereof enclosed in a sealed envelope addressed as
follows:
Thomas F. Nowland Esq.
Daniel A. Brodnax Esq.
Sarah K. Simmons Esq.
Sean B. Janzen Esq.
Kayla Kruschke Esq.
LAW OFFICES OF THOMAS F. NOWLAND
20241 SW Birch St. Suite 203
New Port Beach, CA 92660
Defense Counsel for DA DEFENSE
LOGISTICS HQ, LLC
[Xx] BY MAIL
1 am readily familiar with the practice of Setareh Law Group for the collection and
processing of correspondence for mailing with the United States Postal Service. It is the
practice that correspondence is deposited with United States Postal Service the same day it is
submitted for mailing with postage thereon fully prepaid at Beverly Hills, California. I am
aware that on motion of the party 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.
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[x]
STATE | declare under penalty of perjury under the laws of the State of California that
the above is true and correct.
Executed on July 15, 2019 at Beverly Hills, California.
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PROOF OF SERVICE
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oo moe NY DH FE Ww NH = NY NY NY NY NN NY ND RQ mm i ony nn BF wNH KF SFB wD IRA DH FB wWN SF GS Shaun Setareh (SBN 204514) shaun@setarehlaw.com William M. Pao (SBN 219846) william@setarehlaw.com Alexandra R. McIntosh (SBN 320904) alex@setarehlaw.com SETAREH LAW GROUP 315 South Beverly Drive, Suite 315 Beverly Hills, California 90212 Telephone: (310) 888-7771 Facsimile: (310) 888-0109 Attorneys for Plaintiff MARCELO A IGNELZI SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA UNLIMITED JURISDICTION MARCELO A IGNELZI, on behalf of himself, all others similarly situated, Plaintiff, vs. DA DEFENSE LOGISTICS HQ, LLC, a Texas Limited Liability Company; and DOES 1 through 50, inclusive, Defendants. Case No. 17CV318170 Assigned For All Purposes To The Honorable Thomas E. Kuhnle, Department 5 PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL DEFENDANT DA DEFENSE LOGISTICS HQ, LLC’S FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE); MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF WILLIAM M. PAO; [PROPOSED] ORDER Date: August 23, 2019 Time: 9:00 a.m. Place: Department 5 Complaint Filed: October 26, 2017 TAC Filed: April 26, 2019 PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL DEFENDANT DA DEFENSE, INC’S FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE)cm YN DH FB WY = NY Ne NY N NY NY NY DY DORR BB Be ee OR on DA vA F&F Ww NY F§ SDS 6 et DH FF BW NY KY SG TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on August 23, 2019 in Department 5 located at Superior Court of California, County of Santa Clara, 191 N. First Street, San Jose, California, at 9:00 a.m., Plaintiff MARCELO A IGNELZI (“Plaintiff”) will and does hereby move for an order compelling Defendant DA DEFENSE LOGISTICS HQ, LLC (“Defendant”) to provide further responses to Plaintiff's Request for Production of Documents, (Set One). This motion will be made pursuant to Code of Civil Procedure §§ 2031.010 et seq.; 2023.010 et seq.; 2030.290 et seq.; 2030.240 et seq.; and 2030.300 et seq., on the ground that Defendant’s response to Plaintiff's Request for Production of Documents, (Set One) is insufficient and non-responsive. This motion will be based upon this Notice of Motion and Motion, the Memorandum of Points and Authorities, Separate Statement, the Declaration of Alexandra R. McIntosh, the lodged exhibits, filed and served herewith, the complete files and records in this action and upon such oral and documentary evidence as may be presented at or before the hearing of this motion. DATED: July 15, 2019 SETAREH LAW GROUP SHAUN SETAREH WILLIAM M. PAO ALEXANDRA R. MCINTOSH Attomeys for Plaintiff MARCELO A. IGNELZI 1 PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL DEFENDANT DA DEFENSE, INC.’S FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE)CO NY DH BF WN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES L INTRODUCTION In this class action for alleged violations of the Labor Code and the Business and Professions Code, Defendant DA DEFENSE, INC. (“Defendant”) refuses without proper justification to provide full and complete responsive answers to Plaintiff MARCELO A. IGNELZI’s (“Plaintiff”) discovery requests. Defendant provided incomplete and non-responsive responses and boilerplate objections to most of Plaintiff's discovery requests and refuses to engage in a meaningful meet and confer, despite Plaintiff's best efforts. Plaintiff is now forced to seek relief from the Court and bring this Motion to Compel with respect to his requests for Production of Documents, (Set One) (“RFP”) propounded on Defendant. The discovery requests at issue here seek documents relating to payroll and timekeeping for the class members. Faced with routine and well-defined discovery requests, Defendant served meritless objections combined with non-responsive and evasive answers to many of Plaintiff's discovery requests. When prompted for further responses by Plaintiffs meet and confer efforts, Defendant failed to supplement Plaintiff's requests regarding the class payroll records and timekeeping data. Plaintiff seeks legitimate discovery specifically related to class certification in this litigation. Asa result of Defendant’s failure to comply with its obligations under the Code of Civil Procedure, Plaintiff is still without sufficient information necessary to complete a motion for class certification. Defendant’s refusal to comply is a clear abuse of the discovery process. As such, Plaintiff is entitled to an order compelling Defendant to provide supplemental responses to his formal discovery requests. Tl. STATEMENT OF FACTS AND PROCEDURAL HISTORY A. Discovery At Issue On April 11, 2018, Plaintiff served Defendant with Requests for Production of Documents (Set One) which seeks, among other documents, class timekeeping and payroll data. (Declaration of William M. Pao [Pao Declaration], at P 4). On May 30, 2018, Defendant served its responses that consisted largely of boilerplate 2 PLAIN 'S NOTICE OF MOTION AND MOTION TO COMPEL DEFENDANT DA DEFENSE, INC.’S FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE)oO NY DH BF WN Nw N NY NY NY NN KD RD mee a oI AD A FB YW Sb |= SOD OD IAA A BRB WN FS Objections, including that the request is overly burdensome and oppressive; the request seeks class information prior to certification; and the request seeks information that is protected by the privacy tights of Defendant. (Pao Declaration, { 5). On December 20, 2018, Defendant served a supplemental response to Plaintiff's Request for Production Number 4, which requests all documents in support of Defendant’s affirmative defenses. Defendant’s further response was limited only to Plaintiff. (Pao Declaration, 6). Pursuant to Code of Civil Procedure section 2017.010, Plaintiff is entitled to obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition and location of any document, electronically stored information, tangible thing, or land or other property.” It is also well-settled that “admissibility is not prerequisite to discovery.” Volkswagen of America, Inc. v. Superior Court (2006) 139 Cal. App. 4th 1481, 1490. Rather, “the scope of discovery is very broad” and includes the right to “obtain the identity and location of persons having knowledge of any discoverable matter.” Tien v. Superior Court (2006) 139 Cal. App. 4th 528, 535. Plaintiff’s discovery requests seek relevant and discoverable information, such as, class timekeeping and payroll data. Defendant has unfairly withheld this crucial information, which Plaintiff is clearly entitled to for purposes of class certification. B. Meet and Confer Process On July 2, 2018, Plaintiff engaged in written meet and confer efforts by sending a detailed letter to Defendant’s counsel regarding the deficiencies in its response to Plaintiffs discovery request, including its failure to produce the class payroll and timekeeping data. In the meet and confer letter, Plaintiff supplied Defendant with the arguments that support this motion. (Pao Declaration, § 7). 3 PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL DEFENDANT DA DEFENSE, INC.’S FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE)CO ND HW BRB Ww NY NN Ye N YN N NY YN ar ® Yaa RFK fF 8S S6Ce WADED HEAS On August 24, 2018, H. Scott Leviant, former lead counsel for Plaintiff, and Sarah K. Simon, lead counsel for Defendant met and conferred in person regarding Defendant’s deficient responses to Plaintiff's first set of discovery requests, including Defendant’s failure to produce the class time keeping and payroll data. During this in person meet and confer conference, Mr. Leviant, further explained the authorities included in Plaintiff's written meet and confer letter and requested that Defendant’s provide supplemental responses to Plaintiff's Requests for Production Nos. 5 and 6 seeking the class payroll and timekeeping data. Ms. Simon refused. (Pao Declaration, P 8). Consequently, on January 18, 2019, the parties attended an informal discovery conference before the Honorable Thomas E. Kuhnle. During the conference, Judge Kuhnle made it clear that Defendant should provide a sampling of the class timekeeping and payroll data. As such, following the conference, Plaintiff emailed Defendant to inquire as to whether Defendant would provide a reasonable representative sampling of the payroll and class data. Defendant refused. (Pao Declaration, [PP 9-12). Consequently, Plaintiff now brings this motion. Ill ARGUMENT A. Legal Standards Governing Discovery and Motions to Compel Unless limited by order of the court, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. See Code Civ. Proc. § 2017.010. The “relevance to the subject matter” and “reasonably calculated to lead to discovery of admissible evidence” standards are applied liberally. Information is “relevant to the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof. Gonzalez v. Superior Court (City of San Fernando) (1995) 33 Cal. App. 4th 1539, 1546. Any doubt is generally resolved in favor of permitting discovery, particularly where the precise issues in the case are not yet clearly established. Colonial Life & Acc. Ins. Co. v. Superior Court (Perry) (1982) 31 Cal.3d 785, 790. Thus, the scope of permissible discovery is one of reason, logic and common sense. Lipton v. Super. Ct. (Lawyers’ Mut. Ins. Co.) (1996) 48 Cal. App. 4th 1599, 1611. 4 PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL DEFENDANT DA DEFENSE, INC.’S FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE)Ceo YN DH RF WwW BD He N N NY NY NN NN NO em ee ee a a i ot A AW BF BH F&F SF OD we A DH RF BW NH SF OO A motion to compel further responses under Code of Civil Procedure section 2031.310(a) is the appropriate remedy where the responding party has furnished responses to document requests, but the propounding party believes that: (1) the responding party’s statement of compliance with the demand is incomplete; (2) the responding party’s representation of inability to comply is inadequate, incomplete, or evasive; or (3) the responding party’s objection in the response is without merit or too general. B. Plaintiff is Entitled to Class-wide Time Records and Payroll Data as Such Discovery is Relevant to Damages and Class Certification Issues Plaintiff is entitled to discover class-wide time records and payroll data. This information is relevant to damages, as well as to certification factors such as numerosity, typicality, commonality, and ascertainability. See, e.g., Ho, et al v. Ernst & Young LLP, 2009 WL 1394007, *1 (N.D. Cal. 2007) (holding that in wage-and-hour class action, plaintiff entitled to discovery class-wide time and activity records because they “may indicate whether the putative class members did work that was sufficiently similar to justify a class action”); see also Kiser v. Pride Communications, Inc., 2011 WL 5080162, *3 (D. Nev. 2011) [emphasis added] (holding that in wage-and-hour class action, plaintiff entitled to discover payroll records because these documents would demonstrate if the class is certifiable, “as they go to questions of commonality, typicality, and numerosity.”) [emphasis added]. The requested information is therefore relevant to, among other things, numerosity, predominance, typicality, and whether this case will be manageable as a class action. Indeed, the disclosure of names, addresses, and telephone numbers is a common practice in the class action context. See Currie—White v. Blockbuster, Inc., 2010 WL 1526314, at *2 (N.D. Cal. Apr. 15, 2010); see also Babbitt v. Albertson's Inc., 1992 WL 605652, at *6 (N.D. Cal. Nov. 30, 1992) (at pre-certification stage of Title VII class action, defendant employer ordered to disclose names, addresses, telephone numbers and social security numbers of current and past employees); Putnam v. Eli Lilly & Co., 508 F.Supp.3d 812, 814 (C.D. Cal. 2007) (ordering production of the names, addresses, and telephone numbers of putative class members, subject to a protective order, including those who worked in a sales division other than the plaintiffs own). Given the relevant case law and the fact that discovery in this case is not bifurcated, Plaintiff 5 PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL DEFENDANT DA DEFENSE, INC.’S FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE)co Oe IN DA WH BF Ww NY Be YPN NY NY NY KY KR KR KY He Ye Be Be ewe ewe ew eB BK oy DH FF YB NH =F Go MA DWH BW NH S&S SO is clearly entitled to the discovery she seeks. The information Plaintiff seeks here, time records and payroll data, are clearly far less invasive than names or contact information. Additionally, the names of individuals can be redacted instead of denying the discovery sought. Cc. Plaintiff Is Entitled To Class Discovery Plaintiff is entitled to discover class discovery. This information is relevant to CCP 382 certification factors such as numerosity, typicality, commonality, and ascertainability. Several case laws entitle Plaintiff to class discovery. As stated by the Ninth Circuit, “discovery is likely warranted where it will resolve factual issues necessary for the determination of whether the action may be maintained as a class action, such as whether a class or set of subclasses exist. (Kamm v. California City Development Co.(9th Cir. 1975) 509 F.2d 205, 210 To deny discovery where it is necessary to determine the existence of a class or set of subclasses would be an abuse of discretion. (Doninger v. Pacific Northwest Bell, Inc. (9 Cir. 1977) 564 F.2d 1304, 1313 (citing Kamm, 509 F.2d at 210). “[T]he better and more advisable practice for a District Court to follow is to afford the litigants an opportunity to present evidence as to whether a class action was maintainable. And, the necessary antecedent to the presentation of evidence is, in most cases, enough discovery to obtain the material, especially when the information is within the sole possession of the defendant.” (Doniger at 1313; see also Artis v. Deere & Co, 276 F.R.D. 348.) “No longer can the time-honored cry of ‘fishing expedition’ serve to preclude a party from inquiring into facts underlying his opponent’s case.” (Hickman vy. Taylor (1947) 329 US 495, 506-507). Courts have acknowledged that "due process requires 'an opportunity to conduct discovery on class issues before ... documents in support of or in opposition to the must be filed,' and 'a full opportunity to brief the issues and present evidence." (Bartold v. Glendale Federal Bank (2000) 81 Cal.App. 4th 816, 827, overturned on unrelated grounds as stated in Garcia v. ARCS Mortgage, Inc. (Cal. App. Oct. 18, 2002) 2002 WL 31341254). Accordingly, Defendant may not avoid its obligation to produce evidence pertinent to class discovery. Pursuant to these authorities and factual circumstances, Plaintiff requested that Defendant provide complete documents to requests asking for class-wide data relating to payroll and timekeeping 6 PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL DEFENDANT DA DEFENSE, INC.’S FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE)oO ON DA FE Be YH —& NY N Ye N NY N N HN Dee oN DH Bw NHN fF SB wM AIX A A BW NH SB DO data (Requests Nos. 5-6). The information is essential for Plaintiff to analyze the claims asserted in her lawsuit, including but not limited to Plaintiff's allegation that Defendant failed to provide meal periods and rest periods, Defendant failed to pay hourly wages, and Defendant failed to provide accurate written wage statements, among others. Given the necessity of Plaintiff to file this Motion in order to obtain the time and payroll records of the putative class, Plaintiff requests that Defendant be ordered to provide all time and payroll records. Or in the alternative, if this Court orders Defendant to produce only a sampling, that Defendant be ordered to provide time and payroll records for at least 1/3 of the relatively small class of 360 employees and stipulate that this sampling is indicative of the class. E. CONCLUSION Based upon the foregoing, Plaintiff requests an Order that requires Defendant to supplement its discovery responses as delineated herein and in Plaintiff's supporting documents filed herewith. Because Plaintiff has been required to bring this motion, Plaintiff requests that Defendant be required to provide the timekeeping and payroll records for the entire putative class, which is estimated to be 360 employees. DATED: July 15, 2019 SETAREH LAW GROUP Joe 4 SHAUN SETAREH WILLIAM M. PAO ALEXANDRA R. MCINTOSH Attorneys for Plaintiff MARCELO A. IGNELZI 7 PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL DEFENDANT DA DEFENSE, INC.’S FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE)20 21 22 23 24 26 27 28 PROOF OF SERVICE I am a citizen of the United States and am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is 315 South Beverly Drive, Suite 315 Beverly Hills, CA 90212. On July 15, 2019, served the foregoing documents described as: PLAINTIFF'S NOTICE OF MOTION AND MOTION TO COMPEL DEFENDANT DA DEFENSE LOGISTICS HQ, LLC'S FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE); MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF WILLIAM M. PAO; [PROPOSED] ORDER PLAINTIFF'S SEPARATE STATEMENT OF FACTS IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL DA DEFENSE HQ, LLC'S FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE) DECLARATION OF WILLIAM M. PAO IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL DEFENDANT DA DEFENSE LOGISTICS HQ, LLC'S FURTHER RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION (SET ONE) [PROPOSED] ORDER GRANTING PLAINTIFF'S MOTION TO COMPEL DEFENDANT DA DEFENSE LLC'S FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE) in this action by transmitting a true copy thereof enclosed in a sealed envelope addressed as follows: Thomas F. Nowland Esq. Daniel A. Brodnax Esq. Sarah K. Simmons Esq. Sean B. Janzen Esq. Kayla Kruschke Esq. LAW OFFICES OF THOMAS F. NOWLAND 20241 SW Birch St. Suite 203 New Port Beach, CA 92660 Defense Counsel for DA DEFENSE LOGISTICS HQ, LLC [Xx] BY MAIL 1 am readily familiar with the practice of Setareh Law Group for the collection and processing of correspondence for mailing with the United States Postal Service. It is the practice that correspondence is deposited with United States Postal Service the same day it is submitted for mailing with postage thereon fully prepaid at Beverly Hills, California. I am aware that on motion of the party 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. 1 PROOF OF SERVICE20 21 22 23 24 25 26 27 28 [x] STATE | declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on July 15, 2019 at Beverly Hills, California. 2 PROOF OF SERVICE