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}OF RECORD:
Joseph Lavi, Esq. (SBN 209776). _
Vincent C. Granberry, Esq. (SBN 276483)
LAVI'& EBRAHIMIAN, LLP
8889 W. Olympic Blvd:, Suite 200
Beverly Hills, California 90211
Telephone: (310) 432-0000
Facsimile: (310) 432-0001
‘Attomeys for PLAINTIFF REGINALD LYLE,
‘on behalf of himself and others similarly situated.
so SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN JOAQUIN
:
REGINALD LYLE, on behalf of himself and Case No.: STK-CV-UOE-2016-0006523
others similarly situated, |
CLASS. ACTION i
PLAINTIEF,
[Assigned for all purposes to the Hon.
Elizabeth. Humphries, Ripe onent 22]
: : PLAINTIFF | REGINALD LYLE’S
/DOCTORS HOSPITAL OF MANTECA, INC;, | NOTICE OF MOTION AND MOTION TO
COMPEL DEFENDANT DOCTORS
AUXILIARY OF DOCTORS HOSPITAL OF
HOSPITAL OF MANTECA, INC’S
| MANTECA; DRS HOSP OF MANTECA INC; SP FURTHER RESPONSES TO
OF MANTECA INC; TENET HEALTHCARE
| CORPORATION; TENET HEALTH PLAINTIFF'S REQUESTS FOR
PRODUCTION OF DOCUMENTS, SET
HINTEGRATED SERVICES, INC.; TENET ONE AND REQEUEST FOR SANCTIONS
| HEALTH; and DOES.1 to 100, Inclusive,
IN THE AMOUNT OF $2,872.50
DEFENDANTS. [Filed concurrently withithe Declaration of
Vincent C. Granberry in\support thereof
Separate Statement in support thereof: and
{Proposed} Order)
! Hearing Information:
: Date: TBD (g—\~ il
10d & WM
Ad
! ' FO THE HONORABLE COURT, TO ALL PARTIES AND THEIR ATTORNEY(S)
PLAINTIFF REGINALD LYLE’S NOTICE OF MOTION AND MOTION.TO COMPEL DEFENDANT
DOCTORS HOSPITAL OF MANTECA, INC.’S FURTHER RESPONSES TO PLAINTIF! F’S REQUEST FOR
PRODUCTION OF DOCUMENTS, SET ONE AND REQUEST FOR SANCTIONS IN THE AMOUNT OF
$2,872.50
1NOTICE IS HEREBY GIVEN that on at a.m.,,or as soon thereafter
as the (matter can be- heard in Department 22 of the above-referenced Court, located at the San
Joaquin County Superior Court, Stockton Division, located at 222 East Weber Avenue, Stockton,
California 95202, Plaintiff Reginald Lyle ("Plaintiff") will, and hereby does, move for an order
dompelting Defendant Doctors Hospital of Manteca, Inc. ("Defendant") to provide further responses
to Plaintiff's Requests for Production of Documents, Set One numbers:9, 10, ny 19, 26, 37, 40, 52,
53, 54, 56, 58, 62, 75, 76, 80,81, 82, 84, 85, 86, 88, 89, 90, and 94, |
On November 8, 2016, Plaintiff mail served Defendant with his Requests for Production of
Documents Set One. (See Declaration of Vincent.C..Granberry (“Granberry Dée.”) 2.)
On February 9, 2017, following extensions granted by Plaintiff, Defendant served Responses
to Plaintiff’ s Request for Production of Decuments, Set One, (Granberty Dec. 3 )
On March 27, 2017, Plaintiff deemed the responses. inadequate and sent Defendant a
‘detailed meet and confer letter. (Granberry Dec. 4, Ex. 1.) Thereafter, |on March 29, 2017,
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‘Defendant agreed to respond to Plaintiff's March 27, 2017 meet and|confer letter and/or
-supplemental responses and responsive documents by April 14, 2017 and exténd Plaintiffs Motion
too :
to Coimpel deadline to May 5,:2017. (Granberry Dec. 95., Ex. 2.) Despite Defendant's foregoing
‘representation, as of April 26, 2017, Plaintiff had received neither a response to his March 27, 2017
meet ‘and confer letter nor ‘supplemental responses and responsive documents from Defendant.
Accordingly, Plaintiff sent an email to. Defendant advising that if Plaintiff was not in‘possession of
either a response to his March 27, 2017 meet and confer letter nor supplemental responses and
responsive documents from Defendant-by the end of that week [April 28,.2017] that-he would be
requited to file. a motion to ‘compel this information because of fast-approaching trial date.
(Granberry Dec. 8, Ex. 3.) Defendant never responded to Plaintiff's April 26, 2017. Therefore,
Plaintift now brings the instant motion to compel. (Granberry Dec. 7.) :
PLEASE TAKE FURTHER NOTICE Plaintiff will also seek sanctions in the amount of
$2,872.50 from Defendant or its attorneys of record for the attorneys’ fees and costs associated in
preparing and filing this motion. (Granberry Dec. 8.)
PLAINTIFF REGINALD LYLE’S NOTICE OF MOTION AND MOTION TO COMPEL DEFENDANT
DOCTORS HOSPITAL OF MANTECA, INC.’S FURTHER RESPONSES TO PLAINTIFF'S REQUEST FOR
PRODUCTION. OF DOCUMENTS, SET ONE AND REQUEST FOR SANCTIONS | iN THE AMOUNT OF.
. $2872 50This motion to compel ‘further responses and request for sanctions are based on Code of
Civil Procedure section 2031.310 and the following Memorandum of Points and Authorities,
Exhibits, Declaration of Vincent C. Granberry, all pleadings and other filings in this action, and
other evidence to be presented at the hearing on this motion. .
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Dated: May 5, 2017 , Respectfully Submitted,
' LAVI& EBRAHIMIAN, LLP
Joseph Layi, Esq.
. Vincent C. Granberry, Esq.
\ Attorneys for, PLAINTIFF REGINALD
: LYLE, on behalf of himself and others
: similarly situated
By:
PLAINTIFF REGINALD LYLE'S NOTICE OF MOTION AND MOTION TO COMPEL DEFENDANT
DOCTORS HOSPITAL OF MANTECA, INC.’S FURTHER RESPONSES TO PLAINTIFF'S REQUEST FOR
PRODUCTION OF DOCUMENTS, SET ONE AND REQUEST FOR SANCTIONS IN THE AMOUNT OF
‘ $2,872:50
3! MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION :
Plaintiff Reginald Lyle. (“Plaintiff”) filed this class action lawsuit alleging that Defendant
Doctors Hospital of Manteca, Inc. (“Defendant”), among other Defendants, failed to pay him and
similarly situated employees for all. hours worked at the appropriate minimum. wage and/or‘overtime
rate due to its failure to compensate Plaintiff and similarly situated employees for time: spent
donning and doffing their scrubs; “rounding down” or “shaving down” their daily hours worked to
the nearest quarter of an hour; and failing to pay them for “on-call” time First Amended Complaint
FAC”) 921-29); failure to authorize or permit. Plaintiff and similarly situated employees to take
duty-fiee first meal periods of not less than 30 minutes because of its requirement that Plaintiff and
‘similaily situated cmployées don and doff their ‘scrubs off-the-clock, failure to authiorize-or permit
second meal periods when Plaintiff and similarly situated employees worked shifts over 10 hours,
and failure to pay premium wages for first meal periods of less than 30 minutes or missed second
meal periods (FAC {f]30-32); fiilure to authorize or permit Plaintiff and similarly situated
‘employees to take third rest periods when they worked shifts over 10 hours and failure to pay
| premium wages for missed third rest periods (FAC 36-41); and derivative claims for failure to
provide complete and accurate wages statements because the wage statements Defendant provided
did not include. all hours worked, overtime hours worked, or meal and test period premium wages
and failure to pay all wage.‘due and owing (i.e. wages for all hours worked, overtime wages for
overtime hours worked, and’meal and rest period premium wages) upon sepattation of employment.
(FAC 1942-45).
On or around October 19; 2016, Defendant filed an Answer to Pleintif?’s FAC generally:
denying all allegations and asserting approximately 42 separate affirmative defenses.
, On November 8, 2016, Plaintiff mail served his first set of Requests for Production of
Documents on Defendant, which included the requests at issue in this motign: numbers 9, 10, 11,
19, 26, 37, 40, 52, 53, 54, 56, 58, 62, 75, 76, 80, 81, 82, 84, 85, 86, 88, 89, 90, and 94. (Granberry
Decl! 42.) These interrogatories encompass four:general categories of information:
L. Requests 9, 10, 11, 62, 63, and 81 sought production of documents (including, but
MEMORANDUM OF POINTS AND AUTHORITIES
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“tledece ea |
not limited to pay and punch data) related to putative class members. Defendant’s written response
indicated that it would produce all documents responsive to this request in its possession, custody,
or control, but unilaterally limited the-responsive documents produced to- those related to Plaintiff
only. |
2. Request numbers 19,.37, 52, 56, 58, 75, 80, 84, 85, 88, and 94‘sought production of
documents regarding putative class members’ complaints to Defendant eénceming the allegations in
the complain as. well as basic average rate of pay for putative class members, number of
workweeks, number of shifts over 10 hours, number of shifts over 12 hours! amount of premium
Wages paid, and related. policies and procedures in effect during the lads period. By: these.
terogators, Plaintiff not only seeks the: identify of putative class mehbers and petcipient
‘witnesses, but-also seeks basic-data enabling Plaintiff to establish the size of employees claims and
to caldulate damages-if Plaintiff's Counsel determines that it is in the best interests of the class to
attempt to settle the matter or to mediate the matter looking toward settlement (¢.g., number of
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‘workweeks, average number of hours worked, average amount of overtime worked). This
‘information is also related the bot the “numerosity” and “ascertainability” ‘equirements of class
action cases. Specifically, Plaintiff is entitled to this. information to “ascertain the-existence of a
certifiable class, e.g., to establish the size of employees’ claims which is relevant to demonstrate
that individual lawsuits would be uneconomical and that the class action |device is particularly
appropriate for this type of wage. and hour classaction, and whether there is a mechariism to- tell
which class members will ultimately fall in the-class definition. This-information is also relevant to
calculating. damages if Plaintiff's Counsel determines. that it is.in the best interests of the class to
attempt to settle the matter or to mediate the matter looking toward settlement,
3. Regarding requests 26, 40, 54, 53, 76, 82, 86, arid $9, \Defendant identically
responded to each of these requests, “following a diligent search and reasonable inquiry, Defendant
does inot have responsive documents in its: possession, custody, or control} This was not’a code|
compliant response pursuant to CCP §2031.230.
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4. Handbook supplements: in response to some of Plaintiff's requests, Defendant
produced it Employee Handbook.. The Employee Handbook produced: by ‘Defendant identifies a
MEMORANDUM OF POINTS AND AUTHORITIES
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umber of supplements regarding Plaintiff and similarly situated employees’ hours of work, work
schedules, and Defendant’s meal and rest period policies, but Defendant failed to produce the
supplements to the Employee Handbook. The Employee Handbook’s ireferences to these
supplements make it clear that these documents ‘are responsive to Plaintiff's requests and therefore
inust be produced. (Granberry Dec. 2.) /
On February 9, 2017, following extensions granted by Plaintiff, Defendant served Responses
to Plaintiff's Requests for Production, Set One. (Granberry Dec. 3.)
On March 27, 2017, Plaintiff deemed the responses inadequate and sent Defendant a
detailed, 18 page meet and confer. letter categorically outlining the reasons why Defendant’s
responses were inadequate and that Defendant failed to provide Plaintiff a verification to this set of
discovery. (Granberry Dec. {4., Ex. 1.) :
| Thereafter, on March 29, 2017, Defendant agreed to respond to Plaintiff's March 27, 2017
‘meet and confer letter and/or supplemental responses and responsive document by April 14, 2017
‘and extend PlaintifP's Motion to Compel deadling to May 5, 2017. (Granberry Dec. 4]5., Ex. 2.)
Despite Defendant’s foregoing representation, as of April 26, 2017, Plaintiff had received
‘neither a response to his March 27, 2017 meet and confer letter nor supplemental. responses and
tresponsive documents from Defendant. Accordingly, Plaintiff sent an email to Defendant advising
that if Plaintiff was not in possession of either 4 response to his March 27, 2017 meet and confer
letter mor supplemental responses and responsive documents: from Defendant by the end of that
week (April 28, 2017] that he would be required to file a motion to compel this information because
of fast-approaching trial date. (Granberry Dec. ]6., Ex..3.) Defendant never responded to Plaintiffs
April 26, 2017 email. Now, Plaintiff brings the:instant motion to compel.
I. ARGUMENT
A. The Court Has The Authority To Compel Defendant To Provide Further
‘ Responses To Plaintiff's Requests for Production
A motion to compel is proper when the party to whom discovery is served provides
responses which are deemed improper by the propouhding party. (Code Civ. Proc. §2031.310.) Ifa
timely motion to compel has been filed, the burden is on the responding party to justify any
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MEMORANDUM OF POINTS AND AUTHORITIES
3Objection or failure to fully respond to the interrogatories. (Coy v. Superior Court (Wolcher) (1962)
$8 Cal.2d 210, 220-221.)
‘B. Defendant Failed To Serve Verified Résponses
. Defendant failed to provide verified responses to Plaintiff's Request for Production, Set
One in violation of CCP §2031:250(a). The Court should order Defendant to provide a verification
to this'set of discovery and verified further responses as detailed below.
' iG. Defendant Indicated That It Would Produce Direuinents Responsive To.
: ! Plaintiff's Requests Regarding Putative Class Members, But Unilaterally
| ' Limited The Production Of Documents To Those Pertaining To:Plaintiff; Now
: The Court Must Order Defendant To Produce The Documents Pertaining To
i Putative Class Members
| Plaintif’s request 9, 10, 11, 62, 63, and 81 sought production of various documents and
eos pertaining to putative class members. In response-to these cust Defendant indicated
lthat it would produce all documents responsive. to these requests its possession, custody, or control.
[However, Defendant’s document production was limited to responsive documents that pertaining to
Plaintiff only,. Accordingly; ‘the Court must order Defendant to provide documents responsive to.
| putative class members consistent with its response to these requests.
dD Plaintiff Is Entitled To Basic Data Regarding The Class Which Is Relevant To
Establishing The Class Mechanism Is Superior To Individual Lawsiiits; Place
Plaintiff's Counsel In An Inférmed Position To Enable The Court To Approve
Any Potential Class Settlement; And California Law is Clear Plaintiff Is
Entitled To Names And Contact Information Of Class Members And Percipient
Witnesses .
: Requests numbers 19, 37, 52, 56, 58, 75, 80, 84, 85, 88, and 94/ sought production of
documents:regarding putative class members’ complaints to Defendant concerning. the allegations in
the complaint as well as basic average rate of pay for putative class !members, number of)
workwaeks, number of shifts over 10 hours, number of shifts over 12 hours, amount of premium
wages paid, and related policies and procedures in. effect during. the clas period. Defendant
objection to these requests on the grounds of third party privacy and that the Fequests sought merits-
' based discovery, prior the class certification. |
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MEMORANDUM OF POINTS.AND AUTHORITIES
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Regarding Defendant’s objection on grounds of third party privacy! a review of Crab
Addison, and its review of Puerto, illustrates the rule requiring disclosure of class
memiber/percipient witness contact information in wage and hour class actions, In Crab Addison, the
Second District Court of Appeal affirmed a trial judge's order requiring Production of class member
contact information in a wage and hour class action without any pre-nolice to the class members,
despite the fact that certain class members had signed releases expressly stating that they did not
want their contact information to be disclosed at all to third parties. (Crab Addison, supra, 169
Cal.App.4th at 974-975.) Like here, Crab Addison was a wage and hour class action seeking unpaid
overtime: (Id. at 961.) Like here, the named plaintiff propounded pre-certification discovery seeking
class member contact information by special interrogatories requiring the defendant employer to
“IDENTIFY each CLASS MEMBER.” (/d.) The named plaintiff also served a special interrogatory
requiring the employer to “IDENTIFY EACH PERSON who has knowledge of the facts”
Supporting the employer's contention that the case was “not appropriate. for class certification.” Ud.)
‘The employer objected to these interrogatories, including on the basis that they sought “confidential
sand private information.” (/d.) The named plaintiff filed a motion to compel, brauing that responses
\to these interrogatories were “necessary to meeting his burden of proving class certification was
appropriate” and that “production of the information would not violate: the witnesses” right to
privacy.” (Jd. at'961-962.) The employer opposed this motion, arguing that thd class member contact
information was not discoverable and that, if any discovery of this information is permitted, the
court should require an “opt-in” notice - especially given the fact that the putative class member
employees “had a heightened expectation of privacy as to their contact information based on forms
they signed regarding release of their contact information.” (/d. at 962.) Specifically, the employer
offered evidence that 19 of its employees signed a form stating that they “do not consent to the
Company’s disclosure of my contact information to third parties,” 17 of its eiployees signed a form
stating ‘I would like to be asked-on a case-by-case basis whether I consent to the disclosure of my
contact information to a particular third party, and my contact information should only be provided
if [ affirmatively consent in writing,” and “only a few” employees signed d form stating that they
consented to the disclosure. (/d. at 962-963.) Ultimately, the trial court granted the motion to
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MEMORANDUM OF.POINTS AND AUTHORITIES
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|cbmapel and required the production of the class member contact information’ without requiring any
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notice to the class. members or any “opt-in” or “opt-out” procedure and despite the fact that some
employees had already signed a document stating that they did not want their information released.
(id. at 964-965.)
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‘The employer filed a writ, but the Second District Court of Appeal fully affirrned the trial
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court’s:ruling noting that “[uJnder Puerto, the procedure chosen by the trial court was appropriate.”
! tos
-(id. at 975.) Under Crab Addison and Puerto, a notice procedure was unnecessary for the following
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reasons: |
| (1) | Considering the “fairness to the litigants in prosecuting; or defending tHe forthcoming” suit,
a notice procedure would significantly advantage the employer and create “an inequitable
situation in which one party has access to.all, or nearly’all potential witnesses but the other party
| is dependent on the willingness of those witnesses to participate in discovery.” Puerto at 1256;
‘ Crab Addison at968.
: (2) , A notice procedure would give percipient witnesses the unilateral jchoice to refuse to
| participate in litigation, a right which is not normally afforded to percipient witnesses by the
| discovery act. Crab Addison at 968; Puerto at 1256-1259 (“Not-only does’ the protective order
' advantage [the employer], it unnecessarily hamstrings petitioners.in their conduct of legitimate
1 discovery by making their statutory entitlement to percipient witness discovery: entirely
! dependent on the unreviewable decision of third parties whether they are interested in
participating.”). '
' (3), A notice procedure would also have a chilling effect on participation because employees
; choosing to participate in litigation would then have to identify themselves as persons willing to
participate in a Jawsuit against their employer. Crab Addison. at 968 (citing Gentry v. Superior
Court 42: Cal.4th 443, 460-461) (“Current employees may decline to opt in to the litigation for
fear of retaliation by their employer. This in turn could immunize the empldéyer from liability for
violation of statutory. wage and overtime requiremerits. This would violate the public policy
protecting employee rights.”).
The rule of Puerto, Crab-Addison and similar cases is now firmly entrenched in California
law. ‘In fact, it is so well-established that leading practice guides. acknowledge this rule. For
example, the California Judges Benchbook now provides the following on.this subject:
Discovery. As noted in Book § 11.76, contact information regarding the identity of potential class
members is gerierally discoverable. See Lee v. Dynamex, Inc. (2008) 1166 Cal.App.4th 1325,
1338, 83 CR3d 241 (employee was. entitled to disclosure of names and contact information of
similarly situated employees in’a class action against employer alleging that employer unlawfully
reclassified employées as. independent contractors); Puerto y. Superior Court (2008) 158
Cal.App.4th 1242, 1253-1259, 70 CR3d. 701 (requiring employees to be sent “opt: in” letter
before their contact information could be disseminated to plaintiffs in wage and hour violations
case was abuse of discretion because it effectively gave more protection to nonparty witnesses”
contact information than Discovery Act gives to much more sensitive consumer or employment
records). See Crab Addison, Inc. v. Superior Court (2008) 169 Cal-App-4th 958, 969-975, 87
CR3d 400 (court rejected employer’s contention that court should impose “opt in” notice
tequirement because its employees had heightened expectation of privacy as to their contact
MEMORANDUM OF POINTS AND AUTHORITIES
627
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'informhation based on forms they signed regarding release of inforination; public policy concems
“weigh against enforcing release form that-may have effect of waiving employee’s right to notice
of pending class action concerning employer's alleged violations of overtime and wage statutes).
Protection of recipients’ privacy rights. It is:only under unusual circumstances that the courts
restrict discovery. of nonparty witnesses’ residential contact information, 2.8.4 when disclosure of
l the information would violate their right to privacy and it is unnecessary to the prosecution of the
| litigation or. may endanger witnesses. Puerto. v. Superior Court, supra, 158 CA4th at 1254. When
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the judge concludes that there is no serious invasion of privacy, no balancing of opposing
' interésts is required. 158 CA4th at 1256. |
i Even: when the judge concludes that providing the requested information constitutes a serious
| invasion of a reasonable expectation of privacy, disclosure may be ordered. For example,
' plaintiffs-in a class action against several defendants that alleged a pattern ‘and practice: of age
| discrimination were entitled to seek data on third parties ftom which they. could prepare a
statistical analysis to support: their claims.. The plaintiffs demonstrated | that ‘the requested
, information was directly relevant to their claims and essential to a fair resolution of their lawsuit.
' See Alch v. Superior Court (2008) 165 CA4th 1412, 1426-1427, 82 CR3d ani.
(Cal. Judges Benchbook: Civ. Proc. Before Trial (2009 Supp.) Chap. 11, § 11.76.)
| | Current case law holds that depriving a plaintiff of the contact information of class members
in pre-certification discovery is grounds to reverse a denial of class certification. (Lee v. Dynamex,
dnc. (2008) 166 Cal.App.4th 1325, 1336-1338.) In Lee v. Dyramex, Ine, a plaintiff filed a putative
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class action lawsuit for wage and hour violations against his former employer. (Id. at 1329-1330.)
iThe plaintiff served discovery seeking the names and contact information of class members. (Jd. at
| 330-1331) The defendant resisted the discovery demanding that the parties use a notice procedure.
Idd) At the motion to compel hearing, the trial court held that the motion was premature and that
production: of names and contact information would only be required after the class had been
certified. (Ud. at 1331.) Approximately nine ‘months: later, the trial court denied the plaintiff's motion.
for class certification on the grounds that. the plaintiff failed to establish the elements for class
certification. (/d.) The Lez court reversed the trial court's denial of'class certification holding that
the trial court's earlier discovery order precluding identification of potential class members prior to
certification deprived plaintiff of "the means. to develop evidence capable of supporting his motion
for class certification." (Jd. at 1336-1338.) Under these circumstances, it is clear that the named
Plaintiff is entitled to the identity and contact information of the potential putative class members
and percipient witnesses without any notice procedure.
Regarding Defendant’s objection on the ground that these requests seék production of
| merits-baséd discovery prior to ceitification, “Unless otherwise limited by.ofder of the court ... any’
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MEMORANDUM OF POINTS AND AUTHORITIES. |
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party may obtain discovery regarding any matter, not privileged, that is relevantto 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...” (Code Civ. Proc. § 2017.010.) These interrogatories
seek information to establish the size of employees’ claims which is relevant show that individual
lawsuits would be uneconomical and that the class action device is particularly appropriate for this
type of wage and hour class action. (See Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 715 [The
cas action device is particularly appropriate when numerous parties suffer injury in‘small amounts,
because individual lawsuits would be uneconomical and the wrongdoer might otherwise escape
wii ) |
For discovery purposes, information is regarded as “relevant to the subject matter” of the
actionjif it might reasonably assist a party in’evaluating the case or facilitating settlement thereof.
(Gonzistes v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.) This information is relevant to
faleulating damages if Plaintiffs Counsel determines that it is in the best interests of the class to
attempt to settle the matter or to mediate the matter looking toward settlement, If the parties were to
jee the matter, the Court could only-approve such settlement if PlaintifPs Counsel has sufficient
‘information to properly evaluate. the risks.and value.of the case. (Dunk v. Ford Motor Co. (1996) 48
|calApp-tth 1794, 1801 [In evaluating preliminary approval of any class settlement, courts must
consider several relevant factors, including “the strength of the plaintiffs’ chse, the. risk, expense,
complexity and likely duration of further litigation, the: risk of maintaining class action status
through trial, the. amount offered in settlement, the extent of discovery completed and the stage of
the proceedings, fand] the experience and views of counsel....”].)
Moreover, the requests seek certification-based discovery, in addition tothe identity of
witnesses, which is germane to the discovery process, this information is releyant to showing a class
is ascertainable and to establish'a community of interest, i.e., to enable Plaintiff to identify the group
of class members who share a set of common characteristics and. whose claims and defenses are
common. (See Harper v. 24 Hour Fitness, Inc. (2008) 167 Cal.App.4th 966, 977 [The class is
ascertainable if it identifies a group of unnamed plaintiffs by describing a set of common
characteristics sufficient to allow a member of that group to identify himsel as having’a right to
i MEMORANDUM OF POINTS AND AUTHORITIES |
8discovery] )
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recover! based ‘on the description."]; Richmond v. Dart Industries, Ine, (1981)|29 Cal.3d 462, 470
i {
(commiinity of interest requirements requires showing predominant common questions of law or
fact and that the class representatives claims and defenses are typical of the class].) For these
Teasons, the Court should compel Defendant’s further responses to these.requests.
E. Defendant Failed to Provide Code-Compliant Responses
‘In response to request numbers 26, 40, 53, 54, 76, 82, 68, 89, and 90, Defendant responded
as follows: “Following a diligent search and reasonable inquiry, Defendant does not have responsive
documents in its custody, control, or possession.” However, CCP 2031.230 requires, “A
representation of inability to comply with the particular demand for inspection, copying, testing, or
sampling shall affirm that a diligent search and a reasonable inquiry’ has bed made in an effort to
zomply with that,demand. This ‘statement. shall also specify whether the. inability to comply. is
because the particular item or category has never existed, has: been destroyed, -has been lost,
misplaced, or stolen, or has never been, or is-no longer, in the possession, custody, or control of the
responding party. The statement shall set forth the name and address of any natural person or
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jorganization known or believed by that party to have possession, custody, or control of that item or
category of item.” The Court should compel Defendant to provide father, code-compliant
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UF CCP 2031.310 Allows The Court To Grant Monetary Sanctions Against
, Defendant Or Its Counsel Because Defendant's Failure To Provide The
Requested Information Is Not Justified
|respoises to these requests.
"Misuses of the discovery process include . . . [mJaking an evasive response to discovery."
(Code-Civ. Proc. §2031.310, subds. (h) & (i).) The propounding party's remedy is to file a motion to
comgel responses and to seek monetary sanctions to reimburse the propounding party's reasonable
expenses, including attorney's fees. (/d. §2031.310 ["The court shall impose 4 monetary sanction ...
agdinst any’party, person, or attorney who unsuccessfully makes or opposes a motion to compel a
farther response to demands ‘for ptoduction; see 2031:310, subd. (h) ‘[sanction for misuse of
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In this case, Defendant had and has no justification to refuse. to provide further responses
Wage I
setting forth the requested information. Indeed, despite having numerous oppoitunities and
MEMORANDUM OF POINTS AND AUTHORITIES |
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deadlines to provide substantive responses since the discovery was served approximately six months
ago, Defendant still fails to provide the requested information despite Plaintiff providing the legal
authority that requires Defendant do to so. Given that the court recently set a February 2018 trial
date, coupled with the substantial amount of discovery and motion practice (including a motion for
Class certification) that needs to be completed in advance of trial, Plaintiff Gan no longer further
delay discovery in this matter. (Granberry Deo. 47.) Yet, Defendant has hot provided a single
substantive response to either Plaintiff's detailed 18-page meet and confer letter, a single
Supplemental response, or a single supplemental responsive document. The reguested discovery has
been pending for months at the timé this motion has been filed. Plaintiff has|always acted in good
‘ith and attempted to work with Defendant to obtain supplemental responses, However,
Defendant’s unjustifiable delay, coupled with the fast-approaching trial date and thé tremendous
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amount to be accomplished thereto, demands that Plaintiff file this motion. Accordingly, this court
must grant. Plaintiff's motion to compel and award sanctions of $2,872.50 in costs and attorney’s
Hees which were required to obtain information which Defendant should have provided in its
responses. (Granberry Dec. 98.)
‘IM. CONCLUSION
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Plaintiff requests that the Court grant his Motion to Compel Farin Rr Special
Interrogatories, Set One. Plaintiff further requests an award of monetary sanctions in the amount of
$2,872.50 against Defendant or its attorneys of record.as compensation for the reasonable costs and
expenses incurred in connection with the filing of this motion.
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Dated: May 5, 2017 Respectfully Submitted,
: LAVI & FBRABIMIAY, LLP
o isl Hado
Joseph Lavi, Esqi
Vincent C. Granberry, ol
Attorneys for PLAINTIF F REGINALD
LYLE, on behalf of himself and others
similarly situated
MEMORANDUM OF POINTS AND AUTHORITIES’
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|2 @ FILED BY FAX
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1 || Lyle vs. Doctor Hospital of Manteca, Inc, et al. CASE NO. STK-CV-UOE-2016-0006523
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2 PROOF OF SERVICE |
3 ‘ STATE OF CALIFORNIA, COUNTY OF SAN JOAQUIN
| 4 l I am an employee in the County of San Joaquin, State of California, 1 am over the age of 18
and not a party to the within action; my business address is 8889 West Olymplp Boulevard, Suite
| 5 | 200, Beverly Hills, California 90211.
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6 On May 5, 2017, I served the foregoing document, described as: |
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7 {PLAINTIFE REGINALD LYLE’S NOTICE OF MOTION AND MOTION TO COMPEL
'DEFENDANT DOCTORS HOSPITAL OF MANTECA, INC.’S FURTHER RESPONSES
!'£O PLAINTIFF’S REQUESTS FOR PRODUCTION, SET ONE AND REQEUEST FOR
9 SANCTIONS IN THE AMOUNT OF $2,872.50"
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‘0 “DECLARATION OF VINCENT C. GRANBERRY IN SUPPORT OF PLAINTIFF
,_ | REGINALD LYLE’S MOTION TO COMPEL DEFENDANT DOCTORS HOSPITAL OF
MANTECA, INC.’S FURTHER RESPONSES TO PLAINTIFF'S REQUESTS FOR
ol: PRODUCTION, SET ONE” |
13. | “SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF REGINALD LYLE’S MOTION
TO COMPEL DEFENDANT DOCTORS HOSPITAL OF MANTECA, INC.’S FURTHER
i RESPONSES TO PLAINTIFF'S REQUESTS FOR PRODUCTION, ‘SET ONE”
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ey «(PROPOSED] ORDER GRANTING PLAINTIFF REGINALD LYLE’S MOTION TO
: 16 COMPEL DEFENDANT DOCTORS HOSPITAL OF MANTECA, INC/’S FURTHER
' . RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION, SET ONE”
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lon the! parties and by the method listed below: |
18 Il Attorneys for Defendants Doctors Hospital of _| Tenet Health :
Manteca, Inc.; Auxiliary of Doctors Hospital of | 1205 E. North Street |
19 Manteca; Drs Hosp of Manteca; Sp of Manteca, CA 95336 ;
Manteca; Tenet Healthcare Corporation; Tenet |
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20 Health Integrated Services, Inc.:
21 ELIZABETH STAGGS WILSON
SHANNON R, BOYCE
2 LITTLER MENDELSON, P.C.
633 West Sth Street |
23 63rd Floor
Los Angeles, CA 90071
A
* Il JOSE MACIAS, JR.
a5 || LITTLER MENDELSON, P.C. |
50 W. San Fernando, 15th Floor
San Jose, CA 95113 "2303 !
| , . PROOF OF SERVICE(BY MAIL) As follows:
I'placed such envelope, with postage thereon prepaid, in the United States mail at Los
Angeles, California. 1
lam “readily familiar” with the firm’s practice of collecting and processing correspondence
for mailing. Under that practice, it would be deposited with the U.S. Postal Service on that
same day, with postage thereon fully prepaid, at Los Angeles, California, i in the ordinary
course of business. I am aware that, on motion of the party served, service is presumed
invalid if the postal cancellation or postage meter date is more than one day after the date of
deposit for mailing in this affidavit.
(STATE) I declare, under penalty of perjury under the laws of the State of California,
that the above is true and correct.
Executed on May 5, 2017, at Beverly Hills, California.
PROOF OF SERVICE
Preview
| | }OF RECORD: Joseph Lavi, Esq. (SBN 209776). _ Vincent C. Granberry, Esq. (SBN 276483) LAVI'& EBRAHIMIAN, LLP 8889 W. Olympic Blvd:, Suite 200 Beverly Hills, California 90211 Telephone: (310) 432-0000 Facsimile: (310) 432-0001 ‘Attomeys for PLAINTIFF REGINALD LYLE, ‘on behalf of himself and others similarly situated. so SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN JOAQUIN : REGINALD LYLE, on behalf of himself and Case No.: STK-CV-UOE-2016-0006523 others similarly situated, | CLASS. ACTION i PLAINTIEF, [Assigned for all purposes to the Hon. Elizabeth. Humphries, Ripe onent 22] : : PLAINTIFF | REGINALD LYLE’S /DOCTORS HOSPITAL OF MANTECA, INC;, | NOTICE OF MOTION AND MOTION TO COMPEL DEFENDANT DOCTORS AUXILIARY OF DOCTORS HOSPITAL OF HOSPITAL OF MANTECA, INC’S | MANTECA; DRS HOSP OF MANTECA INC; SP FURTHER RESPONSES TO OF MANTECA INC; TENET HEALTHCARE | CORPORATION; TENET HEALTH PLAINTIFF'S REQUESTS FOR PRODUCTION OF DOCUMENTS, SET HINTEGRATED SERVICES, INC.; TENET ONE AND REQEUEST FOR SANCTIONS | HEALTH; and DOES.1 to 100, Inclusive, IN THE AMOUNT OF $2,872.50 DEFENDANTS. [Filed concurrently withithe Declaration of Vincent C. Granberry in\support thereof Separate Statement in support thereof: and {Proposed} Order) ! Hearing Information: : Date: TBD (g—\~ il 10d & WM Ad ! ' FO THE HONORABLE COURT, TO ALL PARTIES AND THEIR ATTORNEY(S) PLAINTIFF REGINALD LYLE’S NOTICE OF MOTION AND MOTION.TO COMPEL DEFENDANT DOCTORS HOSPITAL OF MANTECA, INC.’S FURTHER RESPONSES TO PLAINTIF! F’S REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE AND REQUEST FOR SANCTIONS IN THE AMOUNT OF $2,872.50 1NOTICE IS HEREBY GIVEN that on at a.m.,,or as soon thereafter as the (matter can be- heard in Department 22 of the above-referenced Court, located at the San Joaquin County Superior Court, Stockton Division, located at 222 East Weber Avenue, Stockton, California 95202, Plaintiff Reginald Lyle ("Plaintiff") will, and hereby does, move for an order dompelting Defendant Doctors Hospital of Manteca, Inc. ("Defendant") to provide further responses to Plaintiff's Requests for Production of Documents, Set One numbers:9, 10, ny 19, 26, 37, 40, 52, 53, 54, 56, 58, 62, 75, 76, 80,81, 82, 84, 85, 86, 88, 89, 90, and 94, | On November 8, 2016, Plaintiff mail served Defendant with his Requests for Production of Documents Set One. (See Declaration of Vincent.C..Granberry (“Granberry Dée.”) 2.) On February 9, 2017, following extensions granted by Plaintiff, Defendant served Responses to Plaintiff’ s Request for Production of Decuments, Set One, (Granberty Dec. 3 ) On March 27, 2017, Plaintiff deemed the responses. inadequate and sent Defendant a ‘detailed meet and confer letter. (Granberry Dec. 4, Ex. 1.) Thereafter, |on March 29, 2017, | ‘Defendant agreed to respond to Plaintiff's March 27, 2017 meet and|confer letter and/or -supplemental responses and responsive documents by April 14, 2017 and exténd Plaintiffs Motion too : to Coimpel deadline to May 5,:2017. (Granberry Dec. 95., Ex. 2.) Despite Defendant's foregoing ‘representation, as of April 26, 2017, Plaintiff had received neither a response to his March 27, 2017 meet ‘and confer letter nor ‘supplemental responses and responsive documents from Defendant. Accordingly, Plaintiff sent an email to. Defendant advising that if Plaintiff was not in‘possession of either a response to his March 27, 2017 meet and confer letter nor supplemental responses and responsive documents from Defendant-by the end of that week [April 28,.2017] that-he would be requited to file. a motion to ‘compel this information because of fast-approaching trial date. (Granberry Dec. 8, Ex. 3.) Defendant never responded to Plaintiff's April 26, 2017. Therefore, Plaintift now brings the instant motion to compel. (Granberry Dec. 7.) : PLEASE TAKE FURTHER NOTICE Plaintiff will also seek sanctions in the amount of $2,872.50 from Defendant or its attorneys of record for the attorneys’ fees and costs associated in preparing and filing this motion. (Granberry Dec. 8.) PLAINTIFF REGINALD LYLE’S NOTICE OF MOTION AND MOTION TO COMPEL DEFENDANT DOCTORS HOSPITAL OF MANTECA, INC.’S FURTHER RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION. OF DOCUMENTS, SET ONE AND REQUEST FOR SANCTIONS | iN THE AMOUNT OF. . $2872 50This motion to compel ‘further responses and request for sanctions are based on Code of Civil Procedure section 2031.310 and the following Memorandum of Points and Authorities, Exhibits, Declaration of Vincent C. Granberry, all pleadings and other filings in this action, and other evidence to be presented at the hearing on this motion. . | Dated: May 5, 2017 , Respectfully Submitted, ' LAVI& EBRAHIMIAN, LLP Joseph Layi, Esq. . Vincent C. Granberry, Esq. \ Attorneys for, PLAINTIFF REGINALD : LYLE, on behalf of himself and others : similarly situated By: PLAINTIFF REGINALD LYLE'S NOTICE OF MOTION AND MOTION TO COMPEL DEFENDANT DOCTORS HOSPITAL OF MANTECA, INC.’S FURTHER RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE AND REQUEST FOR SANCTIONS IN THE AMOUNT OF ‘ $2,872:50 3! MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION : Plaintiff Reginald Lyle. (“Plaintiff”) filed this class action lawsuit alleging that Defendant Doctors Hospital of Manteca, Inc. (“Defendant”), among other Defendants, failed to pay him and similarly situated employees for all. hours worked at the appropriate minimum. wage and/or‘overtime rate due to its failure to compensate Plaintiff and similarly situated employees for time: spent donning and doffing their scrubs; “rounding down” or “shaving down” their daily hours worked to the nearest quarter of an hour; and failing to pay them for “on-call” time First Amended Complaint FAC”) 921-29); failure to authorize or permit. Plaintiff and similarly situated employees to take duty-fiee first meal periods of not less than 30 minutes because of its requirement that Plaintiff and ‘similaily situated cmployées don and doff their ‘scrubs off-the-clock, failure to authiorize-or permit second meal periods when Plaintiff and similarly situated employees worked shifts over 10 hours, and failure to pay premium wages for first meal periods of less than 30 minutes or missed second meal periods (FAC {f]30-32); fiilure to authorize or permit Plaintiff and similarly situated ‘employees to take third rest periods when they worked shifts over 10 hours and failure to pay | premium wages for missed third rest periods (FAC 36-41); and derivative claims for failure to provide complete and accurate wages statements because the wage statements Defendant provided did not include. all hours worked, overtime hours worked, or meal and test period premium wages and failure to pay all wage.‘due and owing (i.e. wages for all hours worked, overtime wages for overtime hours worked, and’meal and rest period premium wages) upon sepattation of employment. (FAC 1942-45). On or around October 19; 2016, Defendant filed an Answer to Pleintif?’s FAC generally: denying all allegations and asserting approximately 42 separate affirmative defenses. , On November 8, 2016, Plaintiff mail served his first set of Requests for Production of Documents on Defendant, which included the requests at issue in this motign: numbers 9, 10, 11, 19, 26, 37, 40, 52, 53, 54, 56, 58, 62, 75, 76, 80, 81, 82, 84, 85, 86, 88, 89, 90, and 94. (Granberry Decl! 42.) These interrogatories encompass four:general categories of information: L. Requests 9, 10, 11, 62, 63, and 81 sought production of documents (including, but MEMORANDUM OF POINTS AND AUTHORITIES 1i | @ e | “tledece ea | not limited to pay and punch data) related to putative class members. Defendant’s written response indicated that it would produce all documents responsive to this request in its possession, custody, or control, but unilaterally limited the-responsive documents produced to- those related to Plaintiff only. | 2. Request numbers 19,.37, 52, 56, 58, 75, 80, 84, 85, 88, and 94‘sought production of documents regarding putative class members’ complaints to Defendant eénceming the allegations in the complain as. well as basic average rate of pay for putative class members, number of workweeks, number of shifts over 10 hours, number of shifts over 12 hours! amount of premium Wages paid, and related. policies and procedures in effect during the lads period. By: these. terogators, Plaintiff not only seeks the: identify of putative class mehbers and petcipient ‘witnesses, but-also seeks basic-data enabling Plaintiff to establish the size of employees claims and to caldulate damages-if Plaintiff's Counsel determines that it is in the best interests of the class to attempt to settle the matter or to mediate the matter looking toward settlement (¢.g., number of | : ‘workweeks, average number of hours worked, average amount of overtime worked). This ‘information is also related the bot the “numerosity” and “ascertainability” ‘equirements of class action cases. Specifically, Plaintiff is entitled to this. information to “ascertain the-existence of a certifiable class, e.g., to establish the size of employees’ claims which is relevant to demonstrate that individual lawsuits would be uneconomical and that the class action |device is particularly appropriate for this type of wage. and hour classaction, and whether there is a mechariism to- tell which class members will ultimately fall in the-class definition. This-information is also relevant to calculating. damages if Plaintiff's Counsel determines. that it is.in the best interests of the class to attempt to settle the matter or to mediate the matter looking toward settlement, 3. Regarding requests 26, 40, 54, 53, 76, 82, 86, arid $9, \Defendant identically responded to each of these requests, “following a diligent search and reasonable inquiry, Defendant does inot have responsive documents in its: possession, custody, or control} This was not’a code| compliant response pursuant to CCP §2031.230. 1 4. Handbook supplements: in response to some of Plaintiff's requests, Defendant produced it Employee Handbook.. The Employee Handbook produced: by ‘Defendant identifies a MEMORANDUM OF POINTS AND AUTHORITIES 2I ® e umber of supplements regarding Plaintiff and similarly situated employees’ hours of work, work schedules, and Defendant’s meal and rest period policies, but Defendant failed to produce the supplements to the Employee Handbook. The Employee Handbook’s ireferences to these supplements make it clear that these documents ‘are responsive to Plaintiff's requests and therefore inust be produced. (Granberry Dec. 2.) / On February 9, 2017, following extensions granted by Plaintiff, Defendant served Responses to Plaintiff's Requests for Production, Set One. (Granberry Dec. 3.) On March 27, 2017, Plaintiff deemed the responses inadequate and sent Defendant a detailed, 18 page meet and confer. letter categorically outlining the reasons why Defendant’s responses were inadequate and that Defendant failed to provide Plaintiff a verification to this set of discovery. (Granberry Dec. {4., Ex. 1.) : | Thereafter, on March 29, 2017, Defendant agreed to respond to Plaintiff's March 27, 2017 ‘meet and confer letter and/or supplemental responses and responsive document by April 14, 2017 ‘and extend PlaintifP's Motion to Compel deadling to May 5, 2017. (Granberry Dec. 4]5., Ex. 2.) Despite Defendant’s foregoing representation, as of April 26, 2017, Plaintiff had received ‘neither a response to his March 27, 2017 meet and confer letter nor supplemental. responses and tresponsive documents from Defendant. Accordingly, Plaintiff sent an email to Defendant advising that if Plaintiff was not in possession of either 4 response to his March 27, 2017 meet and confer letter mor supplemental responses and responsive documents: from Defendant by the end of that week (April 28, 2017] that he would be required to file a motion to compel this information because of fast-approaching trial date. (Granberry Dec. ]6., Ex..3.) Defendant never responded to Plaintiffs April 26, 2017 email. Now, Plaintiff brings the:instant motion to compel. I. ARGUMENT A. The Court Has The Authority To Compel Defendant To Provide Further ‘ Responses To Plaintiff's Requests for Production A motion to compel is proper when the party to whom discovery is served provides responses which are deemed improper by the propouhding party. (Code Civ. Proc. §2031.310.) Ifa timely motion to compel has been filed, the burden is on the responding party to justify any t MEMORANDUM OF POINTS AND AUTHORITIES 3Objection or failure to fully respond to the interrogatories. (Coy v. Superior Court (Wolcher) (1962) $8 Cal.2d 210, 220-221.) ‘B. Defendant Failed To Serve Verified Résponses . Defendant failed to provide verified responses to Plaintiff's Request for Production, Set One in violation of CCP §2031:250(a). The Court should order Defendant to provide a verification to this'set of discovery and verified further responses as detailed below. ' iG. Defendant Indicated That It Would Produce Direuinents Responsive To. : ! Plaintiff's Requests Regarding Putative Class Members, But Unilaterally | ' Limited The Production Of Documents To Those Pertaining To:Plaintiff; Now : The Court Must Order Defendant To Produce The Documents Pertaining To i Putative Class Members | Plaintif’s request 9, 10, 11, 62, 63, and 81 sought production of various documents and eos pertaining to putative class members. In response-to these cust Defendant indicated lthat it would produce all documents responsive. to these requests its possession, custody, or control. [However, Defendant’s document production was limited to responsive documents that pertaining to Plaintiff only,. Accordingly; ‘the Court must order Defendant to provide documents responsive to. | putative class members consistent with its response to these requests. dD Plaintiff Is Entitled To Basic Data Regarding The Class Which Is Relevant To Establishing The Class Mechanism Is Superior To Individual Lawsiiits; Place Plaintiff's Counsel In An Inférmed Position To Enable The Court To Approve Any Potential Class Settlement; And California Law is Clear Plaintiff Is Entitled To Names And Contact Information Of Class Members And Percipient Witnesses . : Requests numbers 19, 37, 52, 56, 58, 75, 80, 84, 85, 88, and 94/ sought production of documents:regarding putative class members’ complaints to Defendant concerning. the allegations in the complaint as well as basic average rate of pay for putative class !members, number of) workwaeks, number of shifts over 10 hours, number of shifts over 12 hours, amount of premium wages paid, and related policies and procedures in. effect during. the clas period. Defendant objection to these requests on the grounds of third party privacy and that the Fequests sought merits- ' based discovery, prior the class certification. | | MEMORANDUM OF POINTS.AND AUTHORITIES 4fo Regarding Defendant’s objection on grounds of third party privacy! a review of Crab Addison, and its review of Puerto, illustrates the rule requiring disclosure of class memiber/percipient witness contact information in wage and hour class actions, In Crab Addison, the Second District Court of Appeal affirmed a trial judge's order requiring Production of class member contact information in a wage and hour class action without any pre-nolice to the class members, despite the fact that certain class members had signed releases expressly stating that they did not want their contact information to be disclosed at all to third parties. (Crab Addison, supra, 169 Cal.App.4th at 974-975.) Like here, Crab Addison was a wage and hour class action seeking unpaid overtime: (Id. at 961.) Like here, the named plaintiff propounded pre-certification discovery seeking class member contact information by special interrogatories requiring the defendant employer to “IDENTIFY each CLASS MEMBER.” (/d.) The named plaintiff also served a special interrogatory requiring the employer to “IDENTIFY EACH PERSON who has knowledge of the facts” Supporting the employer's contention that the case was “not appropriate. for class certification.” Ud.) ‘The employer objected to these interrogatories, including on the basis that they sought “confidential sand private information.” (/d.) The named plaintiff filed a motion to compel, brauing that responses \to these interrogatories were “necessary to meeting his burden of proving class certification was appropriate” and that “production of the information would not violate: the witnesses” right to privacy.” (Jd. at'961-962.) The employer opposed this motion, arguing that thd class member contact information was not discoverable and that, if any discovery of this information is permitted, the court should require an “opt-in” notice - especially given the fact that the putative class member employees “had a heightened expectation of privacy as to their contact information based on forms they signed regarding release of their contact information.” (/d. at 962.) Specifically, the employer offered evidence that 19 of its employees signed a form stating that they “do not consent to the Company’s disclosure of my contact information to third parties,” 17 of its eiployees signed a form stating ‘I would like to be asked-on a case-by-case basis whether I consent to the disclosure of my contact information to a particular third party, and my contact information should only be provided if [ affirmatively consent in writing,” and “only a few” employees signed d form stating that they consented to the disclosure. (/d. at 962-963.) Ultimately, the trial court granted the motion to 3 MEMORANDUM OF.POINTS AND AUTHORITIES 5 1 |cbmapel and required the production of the class member contact information’ without requiring any ! notice to the class. members or any “opt-in” or “opt-out” procedure and despite the fact that some employees had already signed a document stating that they did not want their information released. (id. at 964-965.) 1 I | ‘The employer filed a writ, but the Second District Court of Appeal fully affirrned the trial I court’s:ruling noting that “[uJnder Puerto, the procedure chosen by the trial court was appropriate.” ! tos -(id. at 975.) Under Crab Addison and Puerto, a notice procedure was unnecessary for the following t reasons: | | (1) | Considering the “fairness to the litigants in prosecuting; or defending tHe forthcoming” suit, a notice procedure would significantly advantage the employer and create “an inequitable situation in which one party has access to.all, or nearly’all potential witnesses but the other party | is dependent on the willingness of those witnesses to participate in discovery.” Puerto at 1256; ‘ Crab Addison at968. : (2) , A notice procedure would give percipient witnesses the unilateral jchoice to refuse to | participate in litigation, a right which is not normally afforded to percipient witnesses by the | discovery act. Crab Addison at 968; Puerto at 1256-1259 (“Not-only does’ the protective order ' advantage [the employer], it unnecessarily hamstrings petitioners.in their conduct of legitimate 1 discovery by making their statutory entitlement to percipient witness discovery: entirely ! dependent on the unreviewable decision of third parties whether they are interested in participating.”). ' ' (3), A notice procedure would also have a chilling effect on participation because employees ; choosing to participate in litigation would then have to identify themselves as persons willing to participate in a Jawsuit against their employer. Crab Addison. at 968 (citing Gentry v. Superior Court 42: Cal.4th 443, 460-461) (“Current employees may decline to opt in to the litigation for fear of retaliation by their employer. This in turn could immunize the empldéyer from liability for violation of statutory. wage and overtime requiremerits. This would violate the public policy protecting employee rights.”). The rule of Puerto, Crab-Addison and similar cases is now firmly entrenched in California law. ‘In fact, it is so well-established that leading practice guides. acknowledge this rule. For example, the California Judges Benchbook now provides the following on.this subject: Discovery. As noted in Book § 11.76, contact information regarding the identity of potential class members is gerierally discoverable. See Lee v. Dynamex, Inc. (2008) 1166 Cal.App.4th 1325, 1338, 83 CR3d 241 (employee was. entitled to disclosure of names and contact information of similarly situated employees in’a class action against employer alleging that employer unlawfully reclassified employées as. independent contractors); Puerto y. Superior Court (2008) 158 Cal.App.4th 1242, 1253-1259, 70 CR3d. 701 (requiring employees to be sent “opt: in” letter before their contact information could be disseminated to plaintiffs in wage and hour violations case was abuse of discretion because it effectively gave more protection to nonparty witnesses” contact information than Discovery Act gives to much more sensitive consumer or employment records). See Crab Addison, Inc. v. Superior Court (2008) 169 Cal-App-4th 958, 969-975, 87 CR3d 400 (court rejected employer’s contention that court should impose “opt in” notice tequirement because its employees had heightened expectation of privacy as to their contact MEMORANDUM OF POINTS AND AUTHORITIES 627 28 | — 1 | | So ® e 'informhation based on forms they signed regarding release of inforination; public policy concems “weigh against enforcing release form that-may have effect of waiving employee’s right to notice of pending class action concerning employer's alleged violations of overtime and wage statutes). Protection of recipients’ privacy rights. It is:only under unusual circumstances that the courts restrict discovery. of nonparty witnesses’ residential contact information, 2.8.4 when disclosure of l the information would violate their right to privacy and it is unnecessary to the prosecution of the | litigation or. may endanger witnesses. Puerto. v. Superior Court, supra, 158 CA4th at 1254. When L the judge concludes that there is no serious invasion of privacy, no balancing of opposing ' interésts is required. 158 CA4th at 1256. | i Even: when the judge concludes that providing the requested information constitutes a serious | invasion of a reasonable expectation of privacy, disclosure may be ordered. For example, ' plaintiffs-in a class action against several defendants that alleged a pattern ‘and practice: of age | discrimination were entitled to seek data on third parties ftom which they. could prepare a statistical analysis to support: their claims.. The plaintiffs demonstrated | that ‘the requested , information was directly relevant to their claims and essential to a fair resolution of their lawsuit. ' See Alch v. Superior Court (2008) 165 CA4th 1412, 1426-1427, 82 CR3d ani. (Cal. Judges Benchbook: Civ. Proc. Before Trial (2009 Supp.) Chap. 11, § 11.76.) | | Current case law holds that depriving a plaintiff of the contact information of class members in pre-certification discovery is grounds to reverse a denial of class certification. (Lee v. Dynamex, dnc. (2008) 166 Cal.App.4th 1325, 1336-1338.) In Lee v. Dyramex, Ine, a plaintiff filed a putative 1 class action lawsuit for wage and hour violations against his former employer. (Id. at 1329-1330.) iThe plaintiff served discovery seeking the names and contact information of class members. (Jd. at | 330-1331) The defendant resisted the discovery demanding that the parties use a notice procedure. Idd) At the motion to compel hearing, the trial court held that the motion was premature and that production: of names and contact information would only be required after the class had been certified. (Ud. at 1331.) Approximately nine ‘months: later, the trial court denied the plaintiff's motion. for class certification on the grounds that. the plaintiff failed to establish the elements for class certification. (/d.) The Lez court reversed the trial court's denial of'class certification holding that the trial court's earlier discovery order precluding identification of potential class members prior to certification deprived plaintiff of "the means. to develop evidence capable of supporting his motion for class certification." (Jd. at 1336-1338.) Under these circumstances, it is clear that the named Plaintiff is entitled to the identity and contact information of the potential putative class members and percipient witnesses without any notice procedure. Regarding Defendant’s objection on the ground that these requests seék production of | merits-baséd discovery prior to ceitification, “Unless otherwise limited by.ofder of the court ... any’ t MEMORANDUM OF POINTS AND AUTHORITIES. | 7Poy 4 ' 1 | ® e foi | party may obtain discovery regarding any matter, not privileged, that is relevantto 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...” (Code Civ. Proc. § 2017.010.) These interrogatories seek information to establish the size of employees’ claims which is relevant show that individual lawsuits would be uneconomical and that the class action device is particularly appropriate for this type of wage and hour class action. (See Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 715 [The cas action device is particularly appropriate when numerous parties suffer injury in‘small amounts, because individual lawsuits would be uneconomical and the wrongdoer might otherwise escape wii ) | For discovery purposes, information is regarded as “relevant to the subject matter” of the actionjif it might reasonably assist a party in’evaluating the case or facilitating settlement thereof. (Gonzistes v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.) This information is relevant to faleulating damages if Plaintiffs Counsel determines that it is in the best interests of the class to attempt to settle the matter or to mediate the matter looking toward settlement, If the parties were to jee the matter, the Court could only-approve such settlement if PlaintifPs Counsel has sufficient ‘information to properly evaluate. the risks.and value.of the case. (Dunk v. Ford Motor Co. (1996) 48 |calApp-tth 1794, 1801 [In evaluating preliminary approval of any class settlement, courts must consider several relevant factors, including “the strength of the plaintiffs’ chse, the. risk, expense, complexity and likely duration of further litigation, the: risk of maintaining class action status through trial, the. amount offered in settlement, the extent of discovery completed and the stage of the proceedings, fand] the experience and views of counsel....”].) Moreover, the requests seek certification-based discovery, in addition tothe identity of witnesses, which is germane to the discovery process, this information is releyant to showing a class is ascertainable and to establish'a community of interest, i.e., to enable Plaintiff to identify the group of class members who share a set of common characteristics and. whose claims and defenses are common. (See Harper v. 24 Hour Fitness, Inc. (2008) 167 Cal.App.4th 966, 977 [The class is ascertainable if it identifies a group of unnamed plaintiffs by describing a set of common characteristics sufficient to allow a member of that group to identify himsel as having’a right to i MEMORANDUM OF POINTS AND AUTHORITIES | 8discovery] ) | | e e I recover! based ‘on the description."]; Richmond v. Dart Industries, Ine, (1981)|29 Cal.3d 462, 470 i { (commiinity of interest requirements requires showing predominant common questions of law or fact and that the class representatives claims and defenses are typical of the class].) For these Teasons, the Court should compel Defendant’s further responses to these.requests. E. Defendant Failed to Provide Code-Compliant Responses ‘In response to request numbers 26, 40, 53, 54, 76, 82, 68, 89, and 90, Defendant responded as follows: “Following a diligent search and reasonable inquiry, Defendant does not have responsive documents in its custody, control, or possession.” However, CCP 2031.230 requires, “A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry’ has bed made in an effort to zomply with that,demand. This ‘statement. shall also specify whether the. inability to comply. is because the particular item or category has never existed, has: been destroyed, -has been lost, misplaced, or stolen, or has never been, or is-no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or | jorganization known or believed by that party to have possession, custody, or control of that item or category of item.” The Court should compel Defendant to provide father, code-compliant I | UF CCP 2031.310 Allows The Court To Grant Monetary Sanctions Against , Defendant Or Its Counsel Because Defendant's Failure To Provide The Requested Information Is Not Justified |respoises to these requests. "Misuses of the discovery process include . . . [mJaking an evasive response to discovery." (Code-Civ. Proc. §2031.310, subds. (h) & (i).) The propounding party's remedy is to file a motion to comgel responses and to seek monetary sanctions to reimburse the propounding party's reasonable expenses, including attorney's fees. (/d. §2031.310 ["The court shall impose 4 monetary sanction ... agdinst any’party, person, or attorney who unsuccessfully makes or opposes a motion to compel a farther response to demands ‘for ptoduction; see 2031:310, subd. (h) ‘[sanction for misuse of | In this case, Defendant had and has no justification to refuse. to provide further responses Wage I setting forth the requested information. Indeed, despite having numerous oppoitunities and MEMORANDUM OF POINTS AND AUTHORITIES | 96 @ mo i . deadlines to provide substantive responses since the discovery was served approximately six months ago, Defendant still fails to provide the requested information despite Plaintiff providing the legal authority that requires Defendant do to so. Given that the court recently set a February 2018 trial date, coupled with the substantial amount of discovery and motion practice (including a motion for Class certification) that needs to be completed in advance of trial, Plaintiff Gan no longer further delay discovery in this matter. (Granberry Deo. 47.) Yet, Defendant has hot provided a single substantive response to either Plaintiff's detailed 18-page meet and confer letter, a single Supplemental response, or a single supplemental responsive document. The reguested discovery has been pending for months at the timé this motion has been filed. Plaintiff has|always acted in good ‘ith and attempted to work with Defendant to obtain supplemental responses, However, Defendant’s unjustifiable delay, coupled with the fast-approaching trial date and thé tremendous : | . amount to be accomplished thereto, demands that Plaintiff file this motion. Accordingly, this court must grant. Plaintiff's motion to compel and award sanctions of $2,872.50 in costs and attorney’s Hees which were required to obtain information which Defendant should have provided in its responses. (Granberry Dec. 98.) ‘IM. CONCLUSION I i | Plaintiff requests that the Court grant his Motion to Compel Farin Rr Special Interrogatories, Set One. Plaintiff further requests an award of monetary sanctions in the amount of $2,872.50 against Defendant or its attorneys of record.as compensation for the reasonable costs and expenses incurred in connection with the filing of this motion. | Dated: May 5, 2017 Respectfully Submitted, : LAVI & FBRABIMIAY, LLP o isl Hado Joseph Lavi, Esqi Vincent C. Granberry, ol Attorneys for PLAINTIF F REGINALD LYLE, on behalf of himself and others similarly situated MEMORANDUM OF POINTS AND AUTHORITIES’ 10 | | |2 @ FILED BY FAX : | | 1 || Lyle vs. Doctor Hospital of Manteca, Inc, et al. CASE NO. STK-CV-UOE-2016-0006523 | 2 PROOF OF SERVICE | 3 ‘ STATE OF CALIFORNIA, COUNTY OF SAN JOAQUIN | 4 l I am an employee in the County of San Joaquin, State of California, 1 am over the age of 18 and not a party to the within action; my business address is 8889 West Olymplp Boulevard, Suite | 5 | 200, Beverly Hills, California 90211. : 6 On May 5, 2017, I served the foregoing document, described as: | : | 7 {PLAINTIFE REGINALD LYLE’S NOTICE OF MOTION AND MOTION TO COMPEL 'DEFENDANT DOCTORS HOSPITAL OF MANTECA, INC.’S FURTHER RESPONSES !'£O PLAINTIFF’S REQUESTS FOR PRODUCTION, SET ONE AND REQEUEST FOR 9 SANCTIONS IN THE AMOUNT OF $2,872.50" | ‘0 “DECLARATION OF VINCENT C. GRANBERRY IN SUPPORT OF PLAINTIFF ,_ | REGINALD LYLE’S MOTION TO COMPEL DEFENDANT DOCTORS HOSPITAL OF MANTECA, INC.’S FURTHER RESPONSES TO PLAINTIFF'S REQUESTS FOR ol: PRODUCTION, SET ONE” | 13. | “SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF REGINALD LYLE’S MOTION TO COMPEL DEFENDANT DOCTORS HOSPITAL OF MANTECA, INC.’S FURTHER i RESPONSES TO PLAINTIFF'S REQUESTS FOR PRODUCTION, ‘SET ONE” | | ey «(PROPOSED] ORDER GRANTING PLAINTIFF REGINALD LYLE’S MOTION TO : 16 COMPEL DEFENDANT DOCTORS HOSPITAL OF MANTECA, INC/’S FURTHER ' . RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION, SET ONE” i lon the! parties and by the method listed below: | 18 Il Attorneys for Defendants Doctors Hospital of _| Tenet Health : Manteca, Inc.; Auxiliary of Doctors Hospital of | 1205 E. North Street | 19 Manteca; Drs Hosp of Manteca; Sp of Manteca, CA 95336 ; Manteca; Tenet Healthcare Corporation; Tenet | I | | 20 Health Integrated Services, Inc.: 21 ELIZABETH STAGGS WILSON SHANNON R, BOYCE 2 LITTLER MENDELSON, P.C. 633 West Sth Street | 23 63rd Floor Los Angeles, CA 90071 A * Il JOSE MACIAS, JR. a5 || LITTLER MENDELSON, P.C. | 50 W. San Fernando, 15th Floor San Jose, CA 95113 "2303 ! | , . PROOF OF SERVICE(BY MAIL) As follows: I'placed such envelope, with postage thereon prepaid, in the United States mail at Los Angeles, California. 1 lam “readily familiar” with the firm’s practice of collecting and processing correspondence for mailing. Under that practice, it would be deposited with the U.S. Postal Service on that same day, with postage thereon fully prepaid, at Los Angeles, California, i in the ordinary course of business. I am aware that, on motion of the party served, service is presumed invalid if the postal cancellation or postage meter date is more than one day after the date of deposit for mailing in this affidavit. (STATE) I declare, under penalty of perjury under the laws of the State of California, that the above is true and correct. Executed on May 5, 2017, at Beverly Hills, California. PROOF OF SERVICE