Preview
BY FAX
Cm rd AH BR WN
mwoN RP RYN RN ND Se Se se Be Be Be Se Se es
Ba a RON FS OD w&O I DH BW NH SD
Joseph Antonelli, Esq. (Bar No. 137039)
Janelle Carney, iso, ¢Bar No. 201570)
LAW OFFICE OF JOSEPH ANTONELLI
14758 Pipeline Ave., Suite E, 2nd Floor
Chino Hills, CA 91709
Tel.: (909) 393-0223 / Fax: (909) 393-0471
Joseph Lavi, Esq. (SBN 209776)
Vincent C. Granberry, Esq. (SBN 276483)
LAVI & EBRABIMIAN, LLP
8889 W. Olympic Blvd., Suite 200
Beverly Hills, California 90211
Telephone: (310) 432-0000
Facsimile: (310) 432-0001
David M. deRubertis (SBN 208709)
The deRubertis Law Firm, APC
4219 Coldwater Canyon Avenuc
Studio City, California 91604
Telephone: (818) 761-2322
Facsimile: (818) 761-2323
Attorneys for PLAINTIFF REGINALD LYLE,
on behalf of himself and others similarly situated.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN JOAQUIN
REGINALD LYLE, on behalf of himself and
others similarly situated,
Plaintiff,
v.
DOCTORS HOSPITAL OF MANTECA, INC.;
AUXILLARY OF DOCTORS HOSPITAL OF
MANTECA; DRS HOSP OF MANTECA INC;
SP OF MANTECA INC; TENET
HEALTHCARE CORPORATION, TENET
HEALTH INTEGRATED SERVICES, INC.;
TENET HEALTH; and DOES 1 to 100,
inclusive,
Defendants
et ee ll a
INAL
ey
E
SUPERIOR CouRT
|
HISHAR 18 PH} 30
ROSS paveino, clerk
Case No.: STK-CV-UOE-20,
Hon. Michael Mulvihill
Dept. 10C
CLASS ACTION
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
PLAINTIFF’S MOTION TO COMPLY
TORS
HOSPITAL OF MANTECA’S
RESPONSES TO PLAINTIFE’S
WITH DEFENDANT DO
DOCUMENTS, SETS TWO (2)
THROUGH FIVE (5) ANT
EVIDENTIARY SANCTI:
FAILURE TO COMPLY)
Submitted to the Discovery
Submission Date: April 11,
Action Filed: July 5, 2016
Trial Date: June 10, 2019
oe
16-6523
REQUESTS FOR PRODUCTION OF
/OR
IN FOR
Referee
2019
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S
COMPLY WITH DEFENDANT DOCTORS HOSPITAL OF MANTECA’S RESP
PLAINTIFF’S REQUESTS FOR PRODUCTION OF DOCUMENTS, SETS TWO (2) TH
AND/OR EVIDENTIARY SANCTION FOR FAILURE TO COMPLY |
MOT
INSES TO
OUGN FIVE (5)wo oN DAH RF BW NY
NyoNM MY NY NR NR KN | Fe Be ese Be ee Se Se
oa AA OND &— SF GCM A AHA RF YW NYE
INTRODUCTION
Plaintiff Reginald Lyle (‘Plaintiff’) brings this motion as Defendant Doctors Hospita} of
Manteca (hereinafter “Manteca” or “Defendant”) has failed to produce documents in responst to
Plaintiff's Request for Production of Documents (“RFPDs”), Scts ‘Two Through
though Manteca indicated it would produce said documents in their verified resp
Declaration of Janelle Carney). Defendant’s failure to produce the requested dq
i
ive, even |
muses. (see
cuments
deprives Plaintiff, and the putative class members, of their duc process rights for precertification
discovery and discovery under the Private Attorneys General Act (“PAGA”) cau,
This is just part of the continued delay by Defendant in this action. Given that the
than four months away, time is of the essence. ;
¢ of action.
trial is in less
Thus, Plaintiff seeks this court to compel Defendant to comply and produte documents in|
response to Plaintiff's RFPDs, Sets Two through Five, Nos. 98, 102-105, 107-10
Defendant did state it would produce,
I. STATEMENT OF FACTS
The current litigation is a proposed class action and a PAGA representati¥
brought by Plaintiff against Defendant regarding certain wage and hour practices
Defendant Doctors Hospital of Manteca, which Plaintiff alleges results in the und
minimum, straight time, and overtime wages, failure to provide compliant wage
and rest break violations, unlawful rounding of wages, and waiting time penalties
, to which
¢ action
lutilized by |
lerpayment at
tatements, mca
. These claims
are on behalf of Plaintiff, the putative class members, the aggrieved employees, and the State of
California. The Plaintiff's Eighth cause of action is his PAGA claim, which secks to recover
under theories alleged in his first seven causes of action of the First Amended Compalint
(“TAC”) filed on July 25, 2016.
Plaintiff served Request for Production of Documents, Set Two to Mante
28, 2018. (Decl. Carney §2, Exh. 1) Defendant served responses to said request
2018, and a supplemental response to all requests in Set Two on January 9, 2019
2, Exh. 2) Defendant’s original response to Set Two, No. 98 was that it would p
hire documents found after a diligent search and reasonable inquiry. Defendant’s
1
‘a. on September
bn November 9,
(Decl. Carney
roduce any hew
original |
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’G
COMPLY WITH DEFENDANT DOCTORS HOSPITAL OF MANTECA’S RESP:
PLAINTIFF’S REQUESTS FOR PRODUCTION OF DOCUMENTS, SETS TWO (2) TH
AND/OR EVIDENTIARY SANCTION FOR FAILURE TO COMPLY
MOTION TO
INSES TO
OUGII FIVE (5)woe N DH RW NY =
wR YN NY N NY KY KD SE Se we Be ee ee eB
ont Aw KR OY & SOD wm KAA HU BR wDW HK Oo
response to Set Two, No. 103 was that it would produce written job descriptions.
Defendant's
Supplemental Response to Set Two, No. 102 was that Defendant, “[pyursuant to the Parties’ meet
and confer efforts... will conduct a diligent search and reasonable inquiry for a s:
records for a one week period during the months of January, May, August, and O1
mpling of
ictober during
the relevant period for schedules reflective of eight hour shifts worked by relicf personnel.” -
(Decl. Carney §2). However, none of these documents were ever produced.
Plaintiff served Request for Production of Documents, Set ‘Three to Manteca on October
31, 2018. Plaintiff served Amended RFPDs, Set Three on November 20, 2018. (eel. Carney
3, Exh. 3) Defendant served responses to the requests on December 6, 2018 ani d
January 4,
2019, respectively. (Deel. Carney (3, Exh. 4) Those responses indicated that “Defendant agrees
to produce further responsive documentation... following a diligent search and re
inquiry to the extent they have yet to be produced.” (Decl. Carney 43, Exh. 4) Hi
Defendant neither indicated whether documents had been found nor produced an:
Plaintiff served Request for Production of Documents, Sct Four to Mante
20, 2018. (Decl. Carney §4, Exh. 5) Defendant responded on January 4, 2019, i
blind samples of time records and payroll records would be produced by Defenda
Carney 9/4, Exh. 6) However, these were never produced to Plaintiff, and given
constraints in this litigation, Plaintiff was forced to file his Opposition to Defend:
asonable
iowever,
documents.
a on Noverpber
dicating that
int. (Decl.
the time
nt’s Non-
Certification Motion, and his Motion for Certification without these records. (Decl. Carney $4)
Plaintiff served Request for Production of Documents, Set Five to Mantec
28, 2018. (Decl. Carney 95, Exh. 7) Defendant served responscs on January 30,:
a on December
2019, wherein.
Defendant “agree[d] to produce exemplar wage statements.” (Decl. Carney 95, Exh. 8)
However, following its pattern of disingenuously promising documents it appare:
ntly has no
intention of producing, Defendant never produced these documents and never responded to
Plaintiff's meet and confer efforts. (Decl. Carney 5).
M
MW
Mf
2
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’§
MOTION TO |
COMPLY WITH DEFENDANT DOCTORS HOSPITAL OF MANTECA’S RESPONSES TO
PLAINTIFF’S REQUESTS FOR PRODUCTION OF DOCUMENTS, SETS TWO (2) THR
AND/OR EVIDENTIARY SANCTION FOR FAILURE TO COMPLY
OUGH FIVE (5)0 ON DH BR Ww NY
RBM MN YN NY KN YD Se Ee Be ee Re ee Se
oA A RB Ow HN EF So wm I HH RW NY =
Il. MOTION TO COMPLY IS NECESSARY FOR REQUESTS NOS. 9
107-109
Per CCP §2031.320(a), when a party filing a response to a request for pro
documents “fails to permit the inspection, copying, testing, or sampling in accor
8, 102-105, }
Huction of
|
ance with tat
party's statement of compliance, the demanding party may move for an order cormpelling
compliance.” Id. Plaintiff has been more than patient awaiting the production of hecessary
documents, but can no longer put off this motion, given the fast approaching trial] date of June
10, 2019. As such, Plaintiff requests the discovery referee enter an order requiring Defendant to
produce all responsive documents Defendant said it would produce no later than'April 5, 2019,
or enter an evidence sanction pursuant to CCP § 2023.030(c). CCP § 2023.030(¢,
court may impose an evidence sanction by an order prohibiting any party engagi:
of the discovery process from introducing designated matters in evidence.”
A. Defendant’s Responses to these Requests State it Will Produce Re
states: “The
ig in the misuse
kponses.
Defendant’s Responses to these requests state it will produce responsive documents. See}
Separate Statement filed concurrently herewith.) Despite this, and despite over t
since the Defendant indicated it would produced these documents, no such docw
produced and Defendant has ignored Plaintiff's request for an update or meet and
for the status of these documents. (Decl. Carney 9-10).
o months
ents have been
confer effort
B. No Statutory Deadline for Filing 2 Motion to Comply Per CCP §2031.320
CCP §2031.320 does not provide a statutory deadline for filing a motion
‘o comply.
Plaintiff has met and conferred with Defendant about the production of these documents and has
yet to receive a complete or near-complete production, and further has yet to rece
since the beginning of January. (Decl. Carney (6-10, Exh. 9-16) As such, Plaint
comply is proper.
C. An Evidence Sanction is Appropriate
As stated supra, an evidence sanction as provided for in CCP § 2023.030
exclude all documents from evidence Defendant has not provided that it said it wy
Plaintiff requests that Defendant’s continued delay tactics and failure to produce
3
‘ive a response
ffs motion to
ic) would
ould provide.
flocuments it
I
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS MOTION
COMPLY WITH DEFENDANT DOCTORS HOSPITAL OF MANTECA’S RESP
“to
INSES TO
PLAINTIFF'S REQUESTS FOR PRODUCTION OF DOCUMENTS, SETS TWO (2) THROUGH FIVE (5)
AND/OR EVIDENTIARY SANCTION FOR FAILURE TO COMPLYoo NAW PF YW YP
RN YN NN KN NY Se Ee Be Be Se Se ee ee
aa Awa BON fF SD MIA A RB BH KH EH
stated it would produce, be sanctioned with evidence sanctions as to these-docum
Defendant be prevented from putting forth any evidence in defense to Plaintiff's :
ents, and
laims on the
discovery sought. Given that Plaintiff seeks time and payroll records and Defendant’s failure to
produce, the evidence sanctions could amount to an issue or terminating sanction|
failure to comply.
Evidence sanctions are justified in this matter as Defendant agreed to pro:
documents, and then intentionally delayed resolution with no intention of providi
documents. This is a clear misuse of the discovery process, as outlined in CCP §
After notice and the opportunity for hearing, misuse of the discovery process is 1
qualification for the court to impose an evidence sanction. Id. Although it it mor
see evidence sanctions after a court order to comply is not followed, as shown in
for Defendtnt’s|
luce responsive
those |
2023,030(c).
ic only
common to
CCP §
2023.030(c) and Lee v, Lee, 175 Cal. App. 4th 1553, 1559 (2009), “unusual circumstances, such
as repeated and egregious discovery abuses” can constitute grounds for evidenes banctions. Lee
v. Lee, 175 Cal. App. 4th 1553, 1559 (2009). Further, willful failure to comply contributes to
grounds for evidence sanctions, and a trial court has broad discretion when impo:
sanction. Id; see also Pratt v. Union Pacific Railroad Co., 168 Cal. App. 4th 165,
(“When imposing discovery sanctions, the trial court has broad discretion and its order will yot
ing a discovery
183 (2008),
be reversed on appeal in the absence of a manifest abuse of discretion that execeds the bounds of|
reason resolving all evidentiary conflicts in favor of its ruling.” [citations omitted|) |
Essentially, even though there is no Court order, Defendant, by refusing t
it promised to Plaintiff, is essentially admitting that it has “no meritous claim,” a
evidence is appropriate in that case, as stated in Biles v. Exxon Mobil Corp., 124
1315, 1327 (2004): ,
Thus, when a party repeatedly and willfully fails to provide certain evide:
the opposing party as required by the discovery rules, preclusion of that ¢
may be appropriate, even if such a sanction proves determinative in termi;
the plaintiff's case. (Juarez v. Boy Scouts of America, Inc., supra, 81 Cal.
at p. 390.) But “.‘[t]he ratio decidendi behind such cases[]’ ... is ‘that a
provide what
id exclusion of
Cal. App. 4th
ce to
idence
nating
App.4th
persistent refusal to comply with an order for the production of evidence is
tantamount to an admission that the disobedient party really has no
4
MEMORANDUM OF POINTS AND AUTIORITIES IN SUPPORT OF PLAINTIFF'§ MOTION TD |
COMPLY WITH DEFENDANT DOCTORS HOSPITAL OF MANTECA’S RESP:
PLAINTIFF'S REQUESTS FOR PRODUCTION OF DOCUMENTS, SETS TWO (2) TH.
AND/OR EVIDENTIARY SANCTION FOR FAILURE TO COMPLY
INSES TO
OUGH FIVE (5)
ieC Oo IN DH BW NY
PN RNY WN NN YD Se ee Be ee eR
old Ahm BON |= SB wea A DH BB wWwNH HE DS
meritorious claim ... .’ [Citation.]” (Ibid., quoting Kahn v. Kahn (1977)
App. 3d 372, 382 [137 Cal. Rptr. 332], italics in original quoted source.)
[emphasis added] Id.
CONCLUSION
68 Cal.
For all of the foregoing reasons, Plaintiff requests that this court referee order Defendant
Manteca to produce documents in response to Plaintiff's RFPDs, Sets Two through Five, Nos.
98, 102-105, 107-109. There is no good faith reason that Defendant should be permitted to
withhold such relevant documents, after it said it would produce such. Alternativ:
Defendant fails to comply, Plaintiff requests evidentiary santions accordingly giv
approaching trial date.
Dated: March 15, 2019 LAW OFFICE OF JOSEPH ANTO
5 '
ly, if
en the fast
ELLI
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIF}"§
MOTION TO
COMPLY WITH DEFENDANT DOCTORS HOSPITAL OF MANTECA’S RESPONSES TO
PLAINTIFF’S REQUESTS FOR PRODUCTION OF DOCUMENTS, SETS TWO (2) THROUGH FIVE (5)
AND/OR EVIDENTIARY SANCTION FOR FAILURE TO COMPLY:
Preview
BY FAX Cm rd AH BR WN mwoN RP RYN RN ND Se Se se Be Be Be Se Se es Ba a RON FS OD w&O I DH BW NH SD Joseph Antonelli, Esq. (Bar No. 137039) Janelle Carney, iso, ¢Bar No. 201570) LAW OFFICE OF JOSEPH ANTONELLI 14758 Pipeline Ave., Suite E, 2nd Floor Chino Hills, CA 91709 Tel.: (909) 393-0223 / Fax: (909) 393-0471 Joseph Lavi, Esq. (SBN 209776) Vincent C. Granberry, Esq. (SBN 276483) LAVI & EBRABIMIAN, LLP 8889 W. Olympic Blvd., Suite 200 Beverly Hills, California 90211 Telephone: (310) 432-0000 Facsimile: (310) 432-0001 David M. deRubertis (SBN 208709) The deRubertis Law Firm, APC 4219 Coldwater Canyon Avenuc Studio City, California 91604 Telephone: (818) 761-2322 Facsimile: (818) 761-2323 Attorneys for PLAINTIFF REGINALD LYLE, on behalf of himself and others similarly situated. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN JOAQUIN REGINALD LYLE, on behalf of himself and others similarly situated, Plaintiff, v. DOCTORS HOSPITAL OF MANTECA, INC.; AUXILLARY OF DOCTORS HOSPITAL OF MANTECA; DRS HOSP OF MANTECA INC; SP OF MANTECA INC; TENET HEALTHCARE CORPORATION, TENET HEALTH INTEGRATED SERVICES, INC.; TENET HEALTH; and DOES 1 to 100, inclusive, Defendants et ee ll a INAL ey E SUPERIOR CouRT | HISHAR 18 PH} 30 ROSS paveino, clerk Case No.: STK-CV-UOE-20, Hon. Michael Mulvihill Dept. 10C CLASS ACTION MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION TO COMPLY TORS HOSPITAL OF MANTECA’S RESPONSES TO PLAINTIFE’S WITH DEFENDANT DO DOCUMENTS, SETS TWO (2) THROUGH FIVE (5) ANT EVIDENTIARY SANCTI: FAILURE TO COMPLY) Submitted to the Discovery Submission Date: April 11, Action Filed: July 5, 2016 Trial Date: June 10, 2019 oe 16-6523 REQUESTS FOR PRODUCTION OF /OR IN FOR Referee 2019 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S COMPLY WITH DEFENDANT DOCTORS HOSPITAL OF MANTECA’S RESP PLAINTIFF’S REQUESTS FOR PRODUCTION OF DOCUMENTS, SETS TWO (2) TH AND/OR EVIDENTIARY SANCTION FOR FAILURE TO COMPLY | MOT INSES TO OUGN FIVE (5)wo oN DAH RF BW NY NyoNM MY NY NR NR KN | Fe Be ese Be ee Se Se oa AA OND &— SF GCM A AHA RF YW NYE INTRODUCTION Plaintiff Reginald Lyle (‘Plaintiff’) brings this motion as Defendant Doctors Hospita} of Manteca (hereinafter “Manteca” or “Defendant”) has failed to produce documents in responst to Plaintiff's Request for Production of Documents (“RFPDs”), Scts ‘Two Through though Manteca indicated it would produce said documents in their verified resp Declaration of Janelle Carney). Defendant’s failure to produce the requested dq i ive, even | muses. (see cuments deprives Plaintiff, and the putative class members, of their duc process rights for precertification discovery and discovery under the Private Attorneys General Act (“PAGA”) cau, This is just part of the continued delay by Defendant in this action. Given that the than four months away, time is of the essence. ; ¢ of action. trial is in less Thus, Plaintiff seeks this court to compel Defendant to comply and produte documents in| response to Plaintiff's RFPDs, Sets Two through Five, Nos. 98, 102-105, 107-10 Defendant did state it would produce, I. STATEMENT OF FACTS The current litigation is a proposed class action and a PAGA representati¥ brought by Plaintiff against Defendant regarding certain wage and hour practices Defendant Doctors Hospital of Manteca, which Plaintiff alleges results in the und minimum, straight time, and overtime wages, failure to provide compliant wage and rest break violations, unlawful rounding of wages, and waiting time penalties , to which ¢ action lutilized by | lerpayment at tatements, mca . These claims are on behalf of Plaintiff, the putative class members, the aggrieved employees, and the State of California. The Plaintiff's Eighth cause of action is his PAGA claim, which secks to recover under theories alleged in his first seven causes of action of the First Amended Compalint (“TAC”) filed on July 25, 2016. Plaintiff served Request for Production of Documents, Set Two to Mante 28, 2018. (Decl. Carney §2, Exh. 1) Defendant served responses to said request 2018, and a supplemental response to all requests in Set Two on January 9, 2019 2, Exh. 2) Defendant’s original response to Set Two, No. 98 was that it would p hire documents found after a diligent search and reasonable inquiry. Defendant’s 1 ‘a. on September bn November 9, (Decl. Carney roduce any hew original | MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’G COMPLY WITH DEFENDANT DOCTORS HOSPITAL OF MANTECA’S RESP: PLAINTIFF’S REQUESTS FOR PRODUCTION OF DOCUMENTS, SETS TWO (2) TH AND/OR EVIDENTIARY SANCTION FOR FAILURE TO COMPLY MOTION TO INSES TO OUGII FIVE (5)woe N DH RW NY = wR YN NY N NY KY KD SE Se we Be ee ee eB ont Aw KR OY & SOD wm KAA HU BR wDW HK Oo response to Set Two, No. 103 was that it would produce written job descriptions. Defendant's Supplemental Response to Set Two, No. 102 was that Defendant, “[pyursuant to the Parties’ meet and confer efforts... will conduct a diligent search and reasonable inquiry for a s: records for a one week period during the months of January, May, August, and O1 mpling of ictober during the relevant period for schedules reflective of eight hour shifts worked by relicf personnel.” - (Decl. Carney §2). However, none of these documents were ever produced. Plaintiff served Request for Production of Documents, Set ‘Three to Manteca on October 31, 2018. Plaintiff served Amended RFPDs, Set Three on November 20, 2018. (eel. Carney 3, Exh. 3) Defendant served responses to the requests on December 6, 2018 ani d January 4, 2019, respectively. (Deel. Carney (3, Exh. 4) Those responses indicated that “Defendant agrees to produce further responsive documentation... following a diligent search and re inquiry to the extent they have yet to be produced.” (Decl. Carney 43, Exh. 4) Hi Defendant neither indicated whether documents had been found nor produced an: Plaintiff served Request for Production of Documents, Sct Four to Mante 20, 2018. (Decl. Carney §4, Exh. 5) Defendant responded on January 4, 2019, i blind samples of time records and payroll records would be produced by Defenda Carney 9/4, Exh. 6) However, these were never produced to Plaintiff, and given constraints in this litigation, Plaintiff was forced to file his Opposition to Defend: asonable iowever, documents. a on Noverpber dicating that int. (Decl. the time nt’s Non- Certification Motion, and his Motion for Certification without these records. (Decl. Carney $4) Plaintiff served Request for Production of Documents, Set Five to Mantec 28, 2018. (Decl. Carney 95, Exh. 7) Defendant served responscs on January 30,: a on December 2019, wherein. Defendant “agree[d] to produce exemplar wage statements.” (Decl. Carney 95, Exh. 8) However, following its pattern of disingenuously promising documents it appare: ntly has no intention of producing, Defendant never produced these documents and never responded to Plaintiff's meet and confer efforts. (Decl. Carney 5). M MW Mf 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’§ MOTION TO | COMPLY WITH DEFENDANT DOCTORS HOSPITAL OF MANTECA’S RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION OF DOCUMENTS, SETS TWO (2) THR AND/OR EVIDENTIARY SANCTION FOR FAILURE TO COMPLY OUGH FIVE (5)0 ON DH BR Ww NY RBM MN YN NY KN YD Se Ee Be ee Re ee Se oA A RB Ow HN EF So wm I HH RW NY = Il. MOTION TO COMPLY IS NECESSARY FOR REQUESTS NOS. 9 107-109 Per CCP §2031.320(a), when a party filing a response to a request for pro documents “fails to permit the inspection, copying, testing, or sampling in accor 8, 102-105, } Huction of | ance with tat party's statement of compliance, the demanding party may move for an order cormpelling compliance.” Id. Plaintiff has been more than patient awaiting the production of hecessary documents, but can no longer put off this motion, given the fast approaching trial] date of June 10, 2019. As such, Plaintiff requests the discovery referee enter an order requiring Defendant to produce all responsive documents Defendant said it would produce no later than'April 5, 2019, or enter an evidence sanction pursuant to CCP § 2023.030(c). CCP § 2023.030(¢, court may impose an evidence sanction by an order prohibiting any party engagi: of the discovery process from introducing designated matters in evidence.” A. Defendant’s Responses to these Requests State it Will Produce Re states: “The ig in the misuse kponses. Defendant’s Responses to these requests state it will produce responsive documents. See} Separate Statement filed concurrently herewith.) Despite this, and despite over t since the Defendant indicated it would produced these documents, no such docw produced and Defendant has ignored Plaintiff's request for an update or meet and for the status of these documents. (Decl. Carney 9-10). o months ents have been confer effort B. No Statutory Deadline for Filing 2 Motion to Comply Per CCP §2031.320 CCP §2031.320 does not provide a statutory deadline for filing a motion ‘o comply. Plaintiff has met and conferred with Defendant about the production of these documents and has yet to receive a complete or near-complete production, and further has yet to rece since the beginning of January. (Decl. Carney (6-10, Exh. 9-16) As such, Plaint comply is proper. C. An Evidence Sanction is Appropriate As stated supra, an evidence sanction as provided for in CCP § 2023.030 exclude all documents from evidence Defendant has not provided that it said it wy Plaintiff requests that Defendant’s continued delay tactics and failure to produce 3 ‘ive a response ffs motion to ic) would ould provide. flocuments it I MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS MOTION COMPLY WITH DEFENDANT DOCTORS HOSPITAL OF MANTECA’S RESP “to INSES TO PLAINTIFF'S REQUESTS FOR PRODUCTION OF DOCUMENTS, SETS TWO (2) THROUGH FIVE (5) AND/OR EVIDENTIARY SANCTION FOR FAILURE TO COMPLYoo NAW PF YW YP RN YN NN KN NY Se Ee Be Be Se Se ee ee aa Awa BON fF SD MIA A RB BH KH EH stated it would produce, be sanctioned with evidence sanctions as to these-docum Defendant be prevented from putting forth any evidence in defense to Plaintiff's : ents, and laims on the discovery sought. Given that Plaintiff seeks time and payroll records and Defendant’s failure to produce, the evidence sanctions could amount to an issue or terminating sanction| failure to comply. Evidence sanctions are justified in this matter as Defendant agreed to pro: documents, and then intentionally delayed resolution with no intention of providi documents. This is a clear misuse of the discovery process, as outlined in CCP § After notice and the opportunity for hearing, misuse of the discovery process is 1 qualification for the court to impose an evidence sanction. Id. Although it it mor see evidence sanctions after a court order to comply is not followed, as shown in for Defendtnt’s| luce responsive those | 2023,030(c). ic only common to CCP § 2023.030(c) and Lee v, Lee, 175 Cal. App. 4th 1553, 1559 (2009), “unusual circumstances, such as repeated and egregious discovery abuses” can constitute grounds for evidenes banctions. Lee v. Lee, 175 Cal. App. 4th 1553, 1559 (2009). Further, willful failure to comply contributes to grounds for evidence sanctions, and a trial court has broad discretion when impo: sanction. Id; see also Pratt v. Union Pacific Railroad Co., 168 Cal. App. 4th 165, (“When imposing discovery sanctions, the trial court has broad discretion and its order will yot ing a discovery 183 (2008), be reversed on appeal in the absence of a manifest abuse of discretion that execeds the bounds of| reason resolving all evidentiary conflicts in favor of its ruling.” [citations omitted|) | Essentially, even though there is no Court order, Defendant, by refusing t it promised to Plaintiff, is essentially admitting that it has “no meritous claim,” a evidence is appropriate in that case, as stated in Biles v. Exxon Mobil Corp., 124 1315, 1327 (2004): , Thus, when a party repeatedly and willfully fails to provide certain evide: the opposing party as required by the discovery rules, preclusion of that ¢ may be appropriate, even if such a sanction proves determinative in termi; the plaintiff's case. (Juarez v. Boy Scouts of America, Inc., supra, 81 Cal. at p. 390.) But “.‘[t]he ratio decidendi behind such cases[]’ ... is ‘that a provide what id exclusion of Cal. App. 4th ce to idence nating App.4th persistent refusal to comply with an order for the production of evidence is tantamount to an admission that the disobedient party really has no 4 MEMORANDUM OF POINTS AND AUTIORITIES IN SUPPORT OF PLAINTIFF'§ MOTION TD | COMPLY WITH DEFENDANT DOCTORS HOSPITAL OF MANTECA’S RESP: PLAINTIFF'S REQUESTS FOR PRODUCTION OF DOCUMENTS, SETS TWO (2) TH. AND/OR EVIDENTIARY SANCTION FOR FAILURE TO COMPLY INSES TO OUGH FIVE (5) ieC Oo IN DH BW NY PN RNY WN NN YD Se ee Be ee eR old Ahm BON |= SB wea A DH BB wWwNH HE DS meritorious claim ... .’ [Citation.]” (Ibid., quoting Kahn v. Kahn (1977) App. 3d 372, 382 [137 Cal. Rptr. 332], italics in original quoted source.) [emphasis added] Id. CONCLUSION 68 Cal. For all of the foregoing reasons, Plaintiff requests that this court referee order Defendant Manteca to produce documents in response to Plaintiff's RFPDs, Sets Two through Five, Nos. 98, 102-105, 107-109. There is no good faith reason that Defendant should be permitted to withhold such relevant documents, after it said it would produce such. Alternativ: Defendant fails to comply, Plaintiff requests evidentiary santions accordingly giv approaching trial date. Dated: March 15, 2019 LAW OFFICE OF JOSEPH ANTO 5 ' ly, if en the fast ELLI MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIF}"§ MOTION TO COMPLY WITH DEFENDANT DOCTORS HOSPITAL OF MANTECA’S RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION OF DOCUMENTS, SETS TWO (2) THROUGH FIVE (5) AND/OR EVIDENTIARY SANCTION FOR FAILURE TO COMPLY: