Opinion
5:20-cv-08250-SVK
09-14-2021
EDWARD SCOTT GAU, as an individual and on behalf of all others similarly situated, and as a private attorney general, and BRANDY FOSTER-GAU, as a private attorney general, Plaintiffs, v. HILLSTONE RESTAURANT GROUP, INC., a Delaware corporation; and DOES 1 through 50, inclusive, Defendants.
DIVERSITY LAW GROUP, P.C. Larry W. Lee (State Bar No. 228175) Simon L. Yang (State Bar No. 260286) Attorneys for Plaintiffs and the Class SHEPPARD, MULLIN, RICHTER & HAMPTON LLP GREG S. LABATE, Cal. Bar No. 149918 JASON M. GUYSER, Cal. Bar No. 255273 KRISTI L. THOMAS, Cal. Bar No. 276511 Attorneys for Defendant
Assigned to the Hon. Susan van Keulen, Courtroom 6
DIVERSITY LAW GROUP, P.C.
Larry W. Lee (State Bar No. 228175)
Simon L. Yang (State Bar No. 260286)
Attorneys for Plaintiffs and the Class
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
GREG S. LABATE, Cal. Bar No. 149918
JASON M. GUYSER, Cal. Bar No. 255273KRISTI L. THOMAS, Cal. Bar No. 276511
Attorneys for Defendant
ORDER ON JOINT DISCOVERY CHART FOR SEPTEMBER 14, 2021 HEARING PURSUANT TO ORDER RE: DISCOVERY DISPUTE [DKT. 38]
Pursuant to the Court's September 9, 2021 order in re discovery dispute, Plaintiff, Edward Scott Gau, and Defendant, Hillstone Restaurant Group, Inc., submit a disputed discovery chart.
Attached as Exhibit A is Defendant Hillstone Restaurant Group, Inc.'s Response to Plaintiff Edward Scott Gau's Special Interrogatories, Set Two (and as Exhibit B is Plaintiffs Special Interrogatories, Set Two). Attached as Exhibit C is Defendant Hillstone Restaurant Group, Inc.'s Amended Response to Plaintiff Edward Scott Gau's Special Interrogatories, Set One (and as Exhibit D is Plaintiffs Special Interrogatories, Set One).
Disputed Discovery Requests
I. Special Interrogatories, Set Two, No. 13
1. Special Interrogatory No. 13: State the total numbers of workdays from April 6, 2016, through April 5, 2019, that CLASS MEMBERS were paid an additional hour of pay for short, late, interrupted, or missed rest periods, and the total numbers of workdays and pay periods since April 6, 2019, that AGGRIEVED EMPLOYEES and CLASS MEMBERS were paid an additional hour of pay for short, late, interrupted, or missed rest periods.
2. Response to Special Interrogatory No. 13: Defendant hereby incorporates by reference the general objections set forth above. Defendant objects to this Interrogatory on the grounds that it is overbroad, unduly burdensome, and unmanageable and seeks information disproportionate to the needs of the case as to the definition of the terms “CLASS MEMBERS” and “AGGRIEVED EMPLOYEES.” Defendant disputes that the class period dates back to April 6, 2016. Defendant disputes that the PAGA period dates back to April 6, 2019. Defendant also objects to this Interrogatory and the terms “CLASS MEMBERS” and “AGGRIEVED EMPLOYEES” on the grounds that they are overbroad, unduly burdensome, and unmanageable insofar as it purports to include individuals who are not similarly situated to Plaintiff in terms of, for example, position held, job duties, supervisors, applicable policies, enforcement of policies and/or practices, locations worked, or working conditions, and Plaintiff lacks personal knowledge and has adduced no evidence of, practices or policies applicable to any location other than the sole property at which Plaintiff worked during the Class Period. This Interrogatory is burdensome with respect to the timeframe of April 6, 2016 to April 5, 2019. This Interrogatory is compound. Subject to and without waiving said objections, and without admitting that Plaintiff's proposed class period dates back to April 6, 2016, without admitting that Plaintiff's proposed PAGA period dates back to April 6, 2019, and without admitting that the proposed class or PAGA group includes those who signed releases, Defendant responds as follows: Defendant is unaware of proposed class members and proposed aggrieved employees not being authorized or permitted to take rest periods, and therefore is unaware of rest period premiums being paid.
| Plaintiff's Position | Defendant's Position | For the Court |
| The interrogatory asks Defendant to state a number of workdays and pay periods certain rest break payments occurred. Defendant's response is evasive. Plaintiff requested that Defendant serve a supplemental response. If Defendant is unaware of any workdays and pay periods, a supplemental response should state that there are 0 workdays and pay periods. Defendant has not agreed. Due to the Noon deadline, Plaintiff will address the September 15, 2021 production Defendant has just offered at the hearing. | The response is not evasive. Defendant is unaware of proposed class members and aggrieved employees not being authorized or permitted to take rest breaks during the relevant time periods. These employees do not clock out for rest breaks like they do meal breaks. Because of this, Defendant is unaware of proposed class members and aggrieved employees being paid rest period premiums. There is a possibility that these employees could have been paid a rest period premium at some point, which is why Defendant cannot state “0, ” but Defendant is unaware of such a payment being made. Rest period premiums are not automatically tracked and awarded through Defendant's timekeeping system like meal period premiums are. Defendant has offered to supplement its response to indicate that at this time, after reasonable investigation, it is not aware of any rest period premiums being paid during the relevant time periods. Defendant will supplement its response tomorrow, September 15, 2021, so there is no dispute here. Plaintiffs declined Defendant's offer to supplement and instead chose to raise what is no longer a discovery dispute, clearly in a transparent effort to fabricate a dispute merely in order to get in front of the Court so that they could ask the Court to delay the deadline to file their motion for class certification. In fact, today Plaintiffs' counsel openly admitted to Defendant's counsel that he would not agree to cancel this hearing because this was his chance to ask the Court for this delay. Defendant contends that this is an improper method to seek any such continuance. Moreover, Defendant strongly objects to any delay, as Plaintiffs have had a year to prosecute this case and have known about this deadline since April 2021, but waited until just recently to raise these issues. Indeed, Plaintiffs waited to propound certain class discovery until mid-August 2021. Any further delay will unfairly prejudice Defendant. | Defendant to serve verified supplemental response by 9/15/21 which provides that after a reasonable investigation, Defendant is not aware of any rest period premiums being paid during the relevant time periods. Defendant's 30(b)(6) witness must be fully informed about the supplemental response before the deposition. |
II. Special Interrogatories, Set One, No. 8
1. Special Interrogatory No. 8: State the total number of pay periods since April 6, 2019, in which CLASS MEMBERS were paid an additional hour of pay for missed rest periods.
2. Amended Response to Special Interrogatory No. 8: Defendant hereby incorporates by reference the general objections set forth above. Defendant objects to this Interrogatory on the grounds that it is overbroad, unduly burdensome, and unmanageable and seeks information disproportionate to the needs of the case as to the definition of the term “CLASS MEMBERS” which Plaintiff has defined as “all of Defendant's current and former non-exempt restaurant employees in the State of California who worked at least 3.5 hours in any work shift since April 6, 2016.” Plaintiff has indicated in pleadings that the term “CLASS MEMBERS” is limited to all of Defendant's current and former nonexempt restaurant employees in the State of California who worked at least 3.5 hours in any work shift since April 6, 2016 and who “did not sign arbitration agreements with class action waivers.” Defendant also disputes that the class period dates back to April 6, 2016. Defendant further disputes that the PAGA period dates back to April 6, 2019. Defendant also objects to this Interrogatory and the term “CLASS MEMBERS” on the grounds that it is overbroad, unduly burdensome, and unmanageable insofar as it purports to include individuals who are not similarly situated to Plaintiff in terms of, for example, position held, job duties, supervisors, applicable policies, enforcement of policies and/or practices, locations worked, or working conditions, and Plaintiff lacks personal knowledge and has adduced no evidence of, practices or policies applicable to any location other than the sole property at which Plaintiff worked during the Class Period. Subject to and without waiving said objections, and without admitting that Plaintiffs proposed 1-year class period dates back to April 6, 2019, without admitting that the proposed class includes those who signed arbitration agreements, and without admitting that the proposed class includes those who signed releases, Defendant responds as follows: Defendant is unaware of proposed class members not being authorized or permitted to take rest periods, and therefore is unaware of rest period premiums being paid.
| Plaintiff's Position | Defendant's Position | For the Court |
| Same as above for Special Interrogatory No. 13. Defendant has not agreed to supplement. Due to the Noon deadline, Plaintiff will address the September 15, 2021 production Defendant has just offered at the hearing. | Same response as above for Special Interrogatory No. 13. Defendant will supplement its response tomorrow, September 15, 2021, so there is no dispute here. Defendant reiterates its objection set forth above that Plaintiffs have fabricated a discovery dispute here simply in order to improperly ask the Court for a delay of their filing deadline. | Defendant to serve verified supplemental response by 9/15/21 which provides that after a reasonable investigation, Defendant is not aware of any rest period premiums being paid during the relevant time periods. Defendant's 30(b)(6) witness must be fully informed about the supplemental response before the deposition. |
III. Special Interrogatories, Set Two, No. 14
1. Special Interrogatory No. 14: State the total numbers of workdays from April 6, 2016, through April 5, 2019, that CLASS MEMBERS were paid either an additional hour of pay for short, late, interrupted, or missed meal periods or an additional hour of pay for short, late, interrupted, or missed rest periods, and the total numbers of workdays and pay periods since April 6, 2019, that AGGRIEVED EMPLOYEES and CLASS MEMBERS were paid either an additional hour of pay for short, late, interrupted, or missed meal periods or an additional hour of pay for short, late, interrupted, or missed rest periods.
2. Response to Special Interrogatory No. 14: Defendant hereby incorporates by reference the general objections set forth above. Defendant objects to this Interrogatory on the grounds that it is overbroad, unduly burdensome, and unmanageable and seeks information disproportionate to the needs of the case as to the definition of the terms “CLASS MEMBERS” and “AGGRIEVED EMPLOYEES.” Defendant disputes that the class period dates back to April 6, 2016. Defendant disputes that the PAGA period dates back to April 6, 2019. Defendant also objects to this Interrogatory and the terms “CLASS MEMBERS” and “AGGRIEVED EMPLOYEES” on the grounds that they are overbroad, unduly burdensome, and unmanageable insofar as it purports to include individuals who are not similarly situated to Plaintiff in terms of, for example, position held, job duties, supervisors, applicable policies, enforcement of policies and/or practices, locations worked, or working conditions, and Plaintiff lacks personal knowledge and has adduced no evidence of, practices or policies applicable to any location other than the sole property at which Plaintiff worked during the Class Period. This Interrogatory is burdensome with respect to the timeframe of April 6, 2016 to April 5, 2019. This Interrogatory is compound. This Interrogatory is duplicative of Interrogatory Nos. 12 and 13. Subject to and without waiving said objections, and without admitting that Plaintiffs proposed class period dates back to April 6, 2016, without admitting that Plaintiffs proposed PAGA period dates back to April 6, 2019, and without admitting that the proposed class or PAGA group includes those who signed releases, Defendant responds as follows:
• Approximately 16, 863 workdays between April 6, 2016 and August 24, 2021 that proposed class members were paid meal period premiums (data through August 24, 2021).
• Approximately 7, 844 pay periods between April 6, 2016 and August 24, 2021 that proposed class members were paid meal period premiums (data through August 24, 2021).
• Approximately 69, 495 workdays between April 6, 2019 and August 24, 2021 that proposed aggrieved employees were paid meal period premiums (data through August 24, 2021).
• Approximately 37, 899 pay periods between April 6, 2019 and August 24, 2021 that proposed aggrieved employees were paid meal period premiums (data through August 24, 2021).
Plaintiff's Position
Defendant's Position
For the Court
The interrogatory asks Defendant to state a number of workdays and pay periods employees were paid either certain rest break payments or meal break payments. Defendant's response is evasive. It addresses meal break payments only. Plaintiff requested that Defendant serve a supplemental response. If the number does not change when including rest break payments, a supplemental response should state that the response applies to both meal break payments and rest break payments. Defendant has not agreed. Due to the Noon deadline, Plaintiff will address the September 15, 2021 production Defendant has just offered at the hearing.
Same response as above for Special Interrogatory Nos. 8 and 13. Defendant will supplement its response tomorrow, September 15, 2021, so there is no dispute here. Defendant reiterates its objection set forth above that Plaintiffs have fabricated a discovery dispute here simply in order to improperly ask the Court for a delay of their filing deadline.
Defendant to serve verified supplemental response by 9/15/21 which provides that after a reasonable investigation, Defendant is not aware of any rest period premiums being paid during the relevant time periods. Defendant's 30(b)(6) witness must be fully informed about the supplemental response before the deposition.
IV. Special Interrogatories, Set Two, No. 15
1. Special Interrogatory No. 15: State the total numbers of workdays from April 6, 2016, through April 5, 2019, that CLASS MEMBERS worked (i) 3.5 or more hours, (ii) more than 5.0 hours, or (iii) more than 6.0 hours, and the total numbers of workdays and pay periods since April 6, 2019, that AGGRIEVED EMPLOYEES and CLASS MEMBERS worked (i) 3.5 or more hours, (ii) more than 5.0 hours, or (iii) more than 6.0 hours.
2. Response to Special Interrogatory No. 15: Defendant hereby incorporates by reference the general objections set forth above. Defendant objects to this Interrogatory on the grounds that it is overbroad, unduly burdensome, and unmanageable and seeks information disproportionate to the needs of the case as to the definition of the terms “CLASS MEMBERS” and “AGGRIEVED EMPLOYEES.” Defendant disputes that the class period dates back to April 6, 2016. Defendant disputes that the PAGA period dates back to April 6, 2019. Defendant also objects to this Interrogatory and the terms “CLASS MEMBERS” and “AGGRIEVED EMPLOYEES” on the grounds that they are overbroad, unduly burdensome, and unmanageable insofar as it purports to include individuals who are not similarly situated to Plaintiff in terms of, for example, position held, job duties, supervisors, applicable policies, enforcement of policies and/or practices, locations worked, or working conditions, and Plaintiff lacks personal knowledge and has adduced no evidence of, practices or policies applicable to any location other than the sole property at which Plaintiff worked during the Class Period. This Interrogatory is burdensome with respect to the timeframe of April 6, 2016 to April 5, 2019. This Interrogatory is compound. Subject to and without waiving said objections, and without admitting that Plaintiff's proposed class period dates back to April 6, 2016, without admitting that Plaintiff's proposed PAGA period dates back to April 6, 2019, and without admitting that the proposed class or PAGA group includes those who signed releases, Defendant responds as follows:
• Number of shifts between April 6, 2016 and August 24, 2021 that proposed class members worked 3.5 or more hours: Approximately 48, 298 (data through August 24, 2021).
• Number of shifts between April 6, 2016 and August 24, 2021 that proposed class members worked more than 5.0 hours: Approximately 36, 179 (data through August 24, 2021).
• Number of shifts between April 6, 2016 and August 24, 2021 that proposed class members worked more than 6.0 hours: Approximately 19, 656 (data through August 24, 2021).
• Number of pay periods between April 6, 2016 and August 24, 2021 that proposed class members worked at least one shift of 3.5 or more hours: Approximately 12, 304 (data through August 24, 2021).
• Number of pay periods between April 6, 2016 and August 24, 2021 that proposed class members worked at least one shift of more than 5.0 hours: Approximately 11, 639 (data through August 24, 2021).
• Number of pay periods between April 6, 2016 and August 24, 2021 that proposed class members worked at least one shift of more than 6.0 hours: Approximately 8, 748 (data through August 24, 2021).
• Number of shifts between April 6, 2019 and August 24, 2021 that proposed aggrieved employees worked 3.5 or more hours: Approximately 441, 016 (data through August 24, 2021).
• Number of shifts between April 6, 2019 and August 24, 2021 that proposed aggrieved employees worked more than 5.0 hours: Approximately 274, 757 (data through August 24, 2021).
• Number of shifts between April 6, 2019 and August 24, 2021 that proposed aggrieved employees worked more than 6.0 hours: Approximately 126, 821 (data through August 24, 2021).
• Number of pay periods between April 6, 2019 and August 24, 2021 in which proposed aggrieved employees worked at least one shift of 3.5 or more hours: Approximately 98, 038 (data through August 24, 2021).
• Number of pay periods between April 6, 2019 and August 24, 2021 in which proposed aggrieved employees worked at least one shift of more than 5 hours:
Approximately 85, 542 (data through August 24, 2021).
• Number of pay periods between April 6, 2019 and August 24, 2021 in which proposed aggrieved employees worked at least one shift of more than 6 hours: Approximately 55, 839 (data through August 24, 2021).
Plaintiff's Position
Defendant's Position
For the Court
There are two issues. First, the interrogatory is among a series that asks Defendant to provide certain counts of “workdays.” Unlike the responses to the rest of the series providing counts of “workdays, ” Defendant responds with counts of “shifts.” Defendant previously objected to the 30(b)(6) notice's use of the term “workdays, ” as opposed to “shifts.” Plaintiff deferred to Defendant's preferred word choice and served an amended 30(b)(6) notice that referred to a “workday or shift, ” which was “intended to refer to a ‘work period' as used in Labor Code section 512 and IWC Wage Orders.” As Defendant has stated there could be more than one shift in a workday, Plaintiff requested that Defendant serve a supplemental response. Second, the interrogatory is among a set that seeks to determine information as to two different periods-(i) April 6, 2016, through April 5, 2019, and (ii) April 6, 2019, through present.
The response-as with all responses to Set Two- precludes Plaintiff from determining counts for the initial period. Plaintiff has informed Defendant that it is open to alternate means of obtaining the requested information. If Defendant would like to provide counts for the shorter (and presumably reduced operations) period from April 6, 2019, through August 24, 2021, then Plaintiff would be amenable. Plaintiff understands Defendant has agreed to supplement the responses. Plaintiff does not know when the supplemental responses will be served so includes the issues to preserve the issues. Due to the Noon deadline, Plaintiff will address the September 15, 2021 production Defendant has just offered at the hearing.Same response as above for Special Interrogatory Nos. 8, 13 and 14. Defendant has already agreed to supplement this response to include workdays, and also to include class information for the limited period of April 6, 2019 through August 24, 2021 per Plaintiff's representation on September 13, 2021 that that would be sufficient. Defendant will supplement its response tomorrow, September 15, 2021, so there is no dispute here. Defendant reiterates its objection set forth above that Plaintiffs have fabricated a discovery dispute here simply in order to improperly ask the Court for a delay of their filing deadline.
The Parties have come to an agreement which the Court incorporates into this Order: Defendant to provide a verified supplemental response by 9/15/21 which includes workdays and class information for the limited period of April 6, 2019 through August 24, 2021.