Case Name: Timothy Weaver v. Carden Rose, Inc.
Case No: 18CV339311
I. Background
Plaintiff Timothy Weaver (“Plaintiff”) brings this action against defendant Carden Rose, Incorporated (“Defendant”) for damages associated with breach of an employment contract.
According to the allegations of the complaint, Defendant is a corporation that provides computer forensics services. (Complaint, ¶ 2.) In May 2015 Plaintiff entered into an independent contractor agreement with Defendant. (Id. at ¶ 6.) He was subsequently hired as a regular employee. (Id. at ¶ 9.) Defendant promised to compensate Plaintiff 33 1/3 percent of the gross fees collected from projects assigned to him. (Ibid.) Plaintiff accepted the employment terms, but it immediately became clear that his position required substantial administrative work that did not directly lead to fee generation. (Id. at ¶ 11.) Consequently, Defendant modified his compensation agreement to include a minimum salary of $2500 per bi-monthly pay period. (Ibid.)
Plaintiff was underpaid for his contract work and he was not provided any itemization or basis for how his paychecks were calculated, despite repeated requests. (Complaint, ¶ 12, 13.) In March 2018, he resigned. (Id. at ¶ 14.) He was not paid for work on four invoices from April to June of 2018. (Id. at ¶ 16.) He has repeatedly requested documents necessary to show the work he performed, the fees he generated, and how his pay checks were calculated, but Defendant has refused. (Ibid.)
Furthermore, despite being a shareholder with a 7.5 percent interest in Defendant, Plaintiff has not been given notice of shareholder meetings, and it has held meetings and votes without him present. (Complaint, ¶ 18.) Defendant had Plaintiff sign a “receipt” for his stock certificate that was in fact a signature page for a multi-page shareholder Buy-Sell Agreement that imposed restrictions on his rights as a shareholder, but he was not provided the actual agreement until after he left his employment. (Ibid.)
Based on the foregoing, Plaintiff brings the complaint asserting causes of action for: (1) & (2) breach of contract; (3) breach of the duty of good faith and fair dealing; (4) fraud; (5) negligent misrepresentation; (6) quantum meruit; (7) failure to pay wages on time; (8) failure to provide itemized wage statements; (9) unfair business practices; (10) declaratory relief; and (11) failure to comply with Corporations Code sections 1600-1601.
Presently before the Court is Plaintiff’s motion to compel.
Discovery Dispute
Plaintiff served his first set of special interrogatories (“SI”) and requests for production (“RPD”) on March 11, 2019. Defendant responded on April 25, 2019, but Plaintiff requested further responses. On June 5, 2016, the Court signed a protective order at the request of Defendant allowing them to designate matters produced in discovery as either confidential or highly confidential. After a meet and confer, Defendant served supplemental responses on June 21, 2019. After further meet and confer, Defendant served unverified further supplemental responses on July 24, 2019. Defendant provided verification on August 22, 2019. Plaintiff contends that the answers to eight SI’s and one RPD remain insufficient. Consequently, he moves to compel further responses.
II. Motion to Compel
Plaintiff moves to compel further responses to set one SI Nos. 10, 11, 13, 14, 15, 16, 17, 18, and 19 and further compliance with RPD No. 25.
a. Notice of Motion
Defendant argues that the motion should be denied as procedurally defective because it was not served 16 court days prior to the hearing, in violation of Code of Civil Procedure section 1005. In particular, it notes that the supplemental declaration was served and filed ten court days before the hearing.
Code of Civil Procedure section 1005, subdivision (b) states that all moving and supporting papers must be filed and served 16 court days before the hearing. (See Cal. Rules of Court, rule 3.1300(a) [all moving and supporting papers must be served and filed in accordance with Code of Civil Procedure section 1005].) This time is extended by 5 calendar days if the notice of motion is served by mail. However, a party’s opposition to the merits of a motion is a waiver of any defects in the sufficiency of the notice period. (See Carlton v. Quint (2000) 77 Cal.App.4th 690, 697-699.)
Here, despite its procedural objection, Defendant opposed the motion on its merits. It also did not argue that it lacked adequate time to prepare a response or was prejudiced by the inadequate notice period, nor is it requesting a continuance. (See Carlton v. Quint, supra, 77 Cal.App.4th 690, 697-699.) Therefore, the Court concludes that Defendant has waived the notice defect and will reach the merits of the motion.
b. Special Interrogatories
Plaintiff moves to compel further response to eight special interrogatories.
If a party demanding a response to an interrogatory deems: (1) an answer to an interrogatory as evasive or incomplete; (2) an exercise of the option to produce documents under 2030.230 in response to an interrogatory as unwarranted or devoid of the requisite specification of documents; or (3) an objection in the response to be without merit or too general, that party may move for an order compelling a further response. (See Code Civ. Proc., § 2030.300, subd. (a).)
i. SI Nos. 10 and 11
Plaintiff argues that the responses to SI Nos. 10 and 11 are incomplete and non-responsive.
SI No. 10 asks Defendant to “Describe how the $7133.00 amount of Mr. Weaver’s paycheck dated October 5, 2017 was calculated.” Defendant answered without objection, the substance of which is that (1) Defendant was owed $39,300 for projects assigned to Plaintiff; (2) Defendant does not always immediately collect funds; (3) some of the money due for the pay period was subject to client trust accounts; (4) upon distribution, payments are made; (5) one invoice payment was received on the last day of the month, and the check did not clear immediately; (6) Plaintiff may not have properly submitted his time for these projects as he was struggling inputting his hours correctly which affected collections for projects and Defendants may not have been aware that he worked on some of the projects; and (7) Plaintiff was paid 33 1/3 percent of $21,400 during this pay period which represented reported and collected time, and the remaining portion was paid out in subsequent pay periods.
Plaintiff argues that Defendant fails to explain how the $39,300 was reduced to $21,400, the figure upon which his pay was calculated. This argument has merit. The answer suggests that some calculation was made, which ultimately resulted in the $21,400 figure. However, the SI seeks information regarding how that figure was calculated in the first place. Given that the figure is reduced by $17,900 in a conclusory way and without explanation the answer is incomplete. Therefore, the motion to compel further response to SI 10 will be granted.
SI No. 11 asks Defendant to “Describe how the $5,600.00 amount of Mr. Weaver’s paycheck dated October 20, 2016, was calculated.” Defendant answered without objection, the substance of which is: (1) during that period Defendant collected $2000 for projects assigned to Plaintiff for invoice number 1320; (2) Plaintiff was already paid for invoice number 1320 in September; and (3) therefore Plaintiff’s pay represents 33 1/3 percent of $16,980 due for the remainder of the time he spent but had yet to properly report and/or funds to be collected from the prior pay period.
Again, the response is incomplete as to the information sought and not straightforward as the provided information is internally inconsistent. On the one hand, Defendant’s answer suggests the pay should be calculated based on $2000 in paid invoices. However, it then goes on to conclude without explanation that his pay was calculated on $16,980 due. Therefore, the answer is an incomplete response and the motion to compel will be granted.
ii. SI Nos. 13, 14, 16, 17, 18, and 19
Plaintiff moves to compel further responses to SI Nos. 13, 14, 16, 17, 18 and 19 . SI No. 13 requests that Defendant identify all project Plaintiff worked on in 2016-1018. SI No. 14 asks for the number of hours Plaintiff worked on each project. SI No. 15 seeks the amount of income received by Defendant on each project Plaintiff worked. SI No. 16 asks Defendant to identify how much Plaintiff was paid for each project on which he worked. SI No. 17 asks Defendant to identify every project assigned to Plaintiff as an employee. SI No. 18 asks Defendant to identify the number of hours worked on each project to which he was assigned. SI No. 19 asks Defendant to identify the income it received for each project Plaintiff was assigned.
Defendant objected to each of these interrogatories on varying grounds, and also directed Plaintiff to the “Accelo produced in response to RPD, Bates numbers CR000909 through CR000933… [which] includes all projects Mr. Weaver worked on… in 2016-2018.” Plaintiff argues that each of the responses which reference Code of Civil Procedure section 2030.230, lack requisite specificity as to the writings from which the answers may be ascertained and because it is heavily redacted, some of the information is not in the report. In opposition, Defendant adds new objections, including the privacy of third party clients and concerns that Plaintiff will harass clients and scare off Defendant’s business.
Preliminarily, the Court observes that none of Defendant’s objections are supported by legal arguments justifying its failure to answer. (See Coy v. Super. Ct. (Wolcher, et al.) (“Coy”) (1962) 58 Cal.2d 210, 220-221 [the burden is on the responding party to justify any objections].) The objections that the questions are alternatively vague, ambiguous, compound, asked and answered are merely stated without support. Furthermore, given the protective order issued by the Court at Defendant’s request whereby it can label documents as confidential or highly confidential, objections raised regarding client confidentiality or third party privacy are not persuasive. And similarly, these arguments are not supported by legal authority. Consequently, the Court overrules all objections to SI Nos. 13, 14, 16, 17, 18 and 19.
With respect to the answers themselves, Code of Civil Procedure section 2030.230 provides that “if the answer to an interrogatory would necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from the documents of the party to whom the interrogatory is directed, and if the burden or expense of preparing or making it would be substantially the same for the party propounding the interrogatory as for the responding party,” the responding party may refer to Section 2030.230 and specify the writings from which the answer may be ascertained. This specification must be in “sufficient detail to permit the propounding party to locate and identify, as readily as the responding party can, the documents from which the answer may be ascertained.” “A broad statement that the information is available from a mass of documents is insufficient.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 784.)
The Court finds that Defendant’s responses to SI Nos. 13, 14, 16, 17, 18 and 19 referencing section 2030.230 are not code-compliant. It does not establish that a compilation, abstract, audit or summary of the records is necessary in order to answer the request, or show that no such compilation, abstract, or summary exists. Nor does it demonstrate that the burden or expense of preparing or making a compilation, abstract, or summary would be the same for both parties. (See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783-84.) Instead, section 2030.230 is invoked as part of a list of general objections to all the set one SI and Defendant states:
“This means that the answer to the interrogatory may be derived or ascertained, in whole or in part, from a compilation, abstract, audit or summary of or from CRI’s records, that the burden of deriving or ascertaining such answer is substantially the same for Weaver as it is for CRI, and that CRI will make the specified records identified in the response to the interrogatory, from which the answer may be ascertained or derived, available upon reasonable notice at a mutually convenient time and date in accordance with the provisions of section 2030.230 of the California Code of Civil Procedure.”
Thereafter, the responses to SI Nos. 13, 14, 16, 17, 18 and 19 reference the “Accelo” report, along with the Bates stamp numbers, produced in response to RPD as the source of the information. However, the responses do not establish that a compilation, abstract, audit or summary is necessary for each SI, and rather than state that a compilation doesn’t exist, it points to the Accelo report as the compilation. It likewise does not demonstrate that the burden or expense of creating such compilation, abstract or summary would be substantially the same for Defendant as it is for Plaintiff or offer to make the records available from which Plaintiff can generate its own compilation. The Court also observes that as Plaintiff argues, Defendant has produced redacted paper records of a digital file. While the digital format may allow Defendant to examine data and generate reports, as produced in discovery, the paper Accelo report is much more burdensome for Plaintiff to utilize and discern the answers for the SI as requested. And in some instances, the information has been purposely redacted.
Consequently, the motion to compel further response to SI Nos. 10, 11, 13, 14, 16, 17, 18 and 19 is GRANTED. Accordingly, within 20 calendar days of the date of the filing of the order, Defendant shall serve verified, code-compliant further responses to these SI without objection.
c. RPD
Plaintiff moves to compel compliance with RPD No. 25, pursuant to Code of Civil Procedure sections 2031.310 and 2031.280. The RPD requested that Defendant “produce all Accelo records that relate to work performed by Mr. Weaver in connection with his work as an employee of Carden Rose in 2016-2018.”
Pursuant to section 2031.310, if a responding party agrees to comply with an inspection demand sought pursuant to Code of Civil Procedure section 2031.010, but then fails to do so, the propounding party may file a motion compelling compliance. There is no fixed time limit on such a motion and no attempt to informally resolve the dispute need be shown. All that must be demonstrated is that the responding party failed to comply as agreed. (Code Civ. Proc., § 2031.320, subd. (a); see Standon Co., Inc. v. Superior Court (1990) 225 Cal.App.3d 898, 903.)
Defendant agreed to comply with RPD No. 25 and thereby provided a 25-page document it labels “Accelo report” and which it describes as an “excel spread sheet that contains responsive information exported from the Accelo software, plus information it manually added to the report.” It also argues that because the RPD did not specify a format for production, it was at liberty to choose the format, citing Code of Civil Procedure section 2031.280 subdivisions (c) and (d).
Any documents produced in response to a demand for inspection, copying, testing, or sampling shall either be produced as they are kept in the usual course of business, or be organized and labeled to correspond with the categories in the demand. (Code Civ. Proc., § 2031.280, subd. (a).) Unless the parties otherwise agree or the court otherwise orders, where a demand for production does not specify a form for producing a type of electronically stored information, the responding party shall produce the information in the form it is ordinarily maintained or in a form that is reasonably usable. (Code Civ. Proc., § 2031.280, subd. (d)(1).)
Given the statutory requirements, Defendant has not complied as it has not produced records as they are kept in the regular course of business, or produced them in a usable format. Defendant concedes that the report was generated from a software program where its business records are kept. Likewise, though Defendant chose its own format for the production request, the demand specifically sought the “Accelo records” which are apparently routinely maintained in an electronic format, so to the extent the “format” for the demand was not described as electronic, it need not be. Defendant contends that it had to add information to make the data “usable,” further confirming that it is not a usual business record, but one it generated for the litigation.
Furthermore, the document does not appear to be “labeled to correspond with the categories in the demand.” Instead, the report is heavily redacted and labeled only by client numbers and dates. It also does not appear to be in any discernable order, though it is roughly by date payment was received, but that is inconsistent. Also, Plaintiff cannot reorganize the data to analyze it in different ways to make it usable, as it was produced in a paper format. As a result, Plaintiff cannot correspond the amounts received by Defendant for work with the amounts he was paid per pay period, or should have been paid as he alleges. Therefore, the Court fails to see how the data is reasonably “usable” for Plaintiff.
Consequently, the request to compel compliance with RPD No. 25 is GRANTED. Accordingly, within 20 calendar days of the date of the filing of the order, Defendant shall comply with this RPD without objection.