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Silvestre Soto, Plaintiff v. Castlerock Farming and

April 30, 2012

SILVESTRE SOTO, PLAINTIFF,
v.
CASTLEROCK FARMING AND TRANSPORT, INC, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO COMPEL DOCUMENT PRODUCTION (Docs. 25, 29, 38-39) ORDER GRANTING IN PART AND DENYING IN PART NON-PARTY J.L. PADILLA & SONS LABOR SERVICE, INC.'S MOTION TO QUASH (Doc. 24)

Previously, Silvestre Soto and Olga Galvan sought an order compelling the production of documents by Castlerock Farming and Transport, Inc. ("Castlerock" or "Defendant"). In addition, non-party J.L. Padilla & Sons Labor Service, Inc. ("Padilla & Sons"), moved to quash a subpoena duces tecum served by Plaintiff.

On July 8, 2011, the Court issued a decision granting Plaintiff's motion to compel the production of documents, and granting in part the motion to quash. (Doc. 61). However, by and through this order, the prevision decision is VACATED. For the following reasons, Plaintiff's motion to compel production the production of documents is GRANTED IN PART AND DENIED IN PART. Non-party Padilla & Sons' motion to quash the subpoena is GRANTED IN PART AND DENIED IN PART FACTUAL AND PROCEDURAL HISTORY

On March 5, 2004, Arnaldo Lara, Mario Laveaga, Mirna Diaz, Paula Leon, and Raul Diaz, 3 individually and acting for the interests of the general public, ("Lara Group") initiated an action in the 4 Kern County Superior Court against Rogelio Casimiro, doing business as Golden Grain Farm Labor. 5 (Doc. 41, Exh. A). The Lara Group added Castlerock as a defendant in that action in the second 6 amended complaint filed September 12, 2005. (Doc. 41, Exh. B).*fn1 This action was removed to the 7 Eastern District on December 21, 2005. 8

On November 9, 2005, Plaintiffs' counsel initiated an action against table grape growers based 9 in Kern County, including Castlerock, D.M. Camp & Sons; Marko Zaninovich, Inc.; Sunview Vineyards of California; Guimarra Vineyards Corp.; El Ranch Farms; Stevco, Inc; and FAL Inc.*fn2 See Doe v. D.M. Camp & Sons, 624 F.Supp.2d 1153 (E.D. Cal. 2008).At the time the action was brought, the plaintiffs were unnamed former and current employees of the defendants. Id. at 1156. The Court acknowledged the Doe matter was related to Lara, as well as several other cases imitated against grape growers. Id.

Defendants to the Doe action, including Castlerock, filed motions to dismiss the operative complaint, which were granted by the Court on March 31, 2008. Likewise, motions to sever the action were granted, and the Court required the plaintiffs to file amended pleadings against each defendant to effectuate the severance. On May 29, 2008, Silvestre Soto and Olga Galvan were named as plaintiffs in the Third Amended Complaint against Castlerock. (Doe, Doc. 175). On March 31, 2009, the Court ordered Plaintiffs to re-file their suit in a new case number within twenty days to finalize the severance. (Doe, Doc. 239).

On April 20, 2009, Silvestre Soto and Olga Galvan filed their complaint against Defendant Castlerock for the following: violation of the Agricultural Workers Protection Act, 29 U.S.C. § 1801, 3 et seq; failure to pay wages; failure to pay reporting time wages; failure to provide rest and meal 4 periods; failure to pay wages of terminated or resigned employees; knowing and intentional failure to 5 comply with itemized employee wage statement provisions; penalties under Labor Code § 2699, et seq; 6 breach of contract; and violation of unfair competition law. (Doc. 1). The action was brought "on 7 behalf of Plaintiffs and members of the Plaintiff Class comprising all non-exempt agricultural, packing 8 shed, and storage cooler employees employed, or formerly employed, by each of the Defendants within 9 the State of California." Id. at 4.

On July 8, 2011, the Court found Silvestre Soto and Olga Galvan established a prima facie showing of class certification for purposes of discovery because commonality and typicality was demonstrated through the testimony of Soto, Galvan, and class member Javier Garcia. (Doc. 61 at 8-10). Based upon this finding, the Court granted the motion to compel document production. Id. at 9. In addition, the Court and granted in part and denied in part non-party Padilla & Sons' motion to quash, finding "the documents sought in the subpoena duces tecum are relevant to Plaintiffs' action against Castlerock because Plaintiffs have established common questions of law and fact to assert the class claims for which they seek discovery." Id. at 15.

On November 1, 2011, Plaintiff Olga Galvan voluntarily dismissed the action leaving only Silvestre Soto as a named plaintiff. (Doc. 93). Because the Court's finding there was a prima facie case for class certification was influenced by Ms. Galvan's status as a class representative who asserted "injuries similar to another class member" (Doc. 61 at 9), the Court found it was appropriate to exercise its inherent power to reconsider the motions compelling document production and to quash the deposition subpoena.*fn3 Accordingly, on December 15, 2011, the Court ordered the parties to file supplemental briefing addressing (1) what effect, if any, Ms. Galvan's changed status from class 2 representative to putative class member had on the motion to compel document production and the 3 motion to quash, and (2) whether, the requested discovery was likely to substantiate the class claims if 4 Silvestre Soto was no longer able to state a prima facie case for class certification. (Doc. 97). 5

In accordance with the Court's order, Silvestre Soto ("Plaintiff") filed a supplemental brief on January 18, 2012. (Doc. 102). Defendant filed its amended supplemental brief on February 9, 2012 7 (Doc. 107), and lodged the transcript of Plaintiff with the Court on February 21, 2012. 8

SCOPE OF DISCOVERY

The scope and limitations of discovery are set forth by the Federal Rules of Civil Procedure and Evidence. In relevant part, Rule 26(b) states:

Unless otherwise limited by court order, parties may obtain discovery regarding any non-privileged manner that is relevant to any party's claim or defense -- including the existence, description, nature, custody, condition, and location of any documents or other tangible things . . . For good cause, the court may order discovery of any matter relevant to the subject matter involved in the accident. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.

Fed. R. Civ. P. 26(b). Relevant evidence is defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401 (emphasis added). Further, relevancy to a subject matter is interpreted "broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978).

MOTION FOR PRODUCTION OF DOCUMENTS

I. Requests for Production of Documents

A propounding party may request documents "in the responding party's possession, custody, or control." Fed. R. Civ. P. 34(a). A request is adequate if it describes items with "reasonable particularity;" specifies a reasonable time, place, and manner for the inspection; and specifies the form or forms in which electronic information can be produced. Fed. R. Civ. P. 34(b). Further, a request is sufficiently clear and unambiguous if it "places the party upon ‗reasonable notice of what is called for and what is not.'" Kidwiler v. Progressive Paloverde Ins. Co., 192. F.R.D. 193, 202 (N.D. W. Va. 2 2000) (quoting Parsons v. Jefferson-Pilot Corp., 141 F.R.D. 408, 412 (M.D.N.C. 1992)); see also Schwarzer, Tashima & Wagstaffe, Federal Civil Procedure Before Trial (2011) Discovery, para. 4 11:1886 (test is whether a respondent of average intelligence would know what items to produce). 5

Upon receipt of a discovery request, a party must respond in writing and is obligated to produce 6 all specified relevant and non-privileged documents, tangible things, or electronically stored 7 information in its "possession, custody, or control" on the date specified. Fed. R. Civ. P. 34(a). In the 8 alternative, a party may state an objection to a request, including the reasons. Fed. R. Civ. P. 9 34(b)(2)(A)-(B). When a party resists discovery, he "has the burden to show that discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections." Oakes v. Halvorsen Marine Ltd., 189 F.R.D. 281, 283 (C.D. Cal. 1998) (citing Nestle Food Corp. v. Aetna Cas. & Co. 135 F.R.D. 101, 103 (D.N.J. 1990)). If a party fails to respond to a discovery request, the propounding party may file a motion to compel production of documents. Fed. R. Civ. P. 37(a)(3).

II. Rule 23 Prerequisites and Discovery

Generally, a class action requires that joinder of all members of a class be impracticable ("numerosity"), common questions of law or fact to the class ("commonality"), claims or defenses of representatives be typical of the proposed class ("typicality"), and the representative parties "fairly and adequately protect the interests of the class" ("adequacy of representation") Fed. R. Civ. P. 23(a); Stanton v. Boeing Co., 327 F.3d 938, 953 (9th Cir. 2003). "These requirements effectively limit the class claims to those fairly encompassed by the named plaintiff's claims." General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 155 (1982) (citing General Telephone Co. v. EEOC, U.S. 318, 330 (1980)).

When a party seeks discovery related to class discovery, a court may require the plaintiff to make a prima facie showing that the requirements of Rule 23 are satisfied, or that the discovery sought is likely to substantiate the class claims. See Mantolete v. Bolger, 767 F.2d 1416, 1424 (9th Cir. 1985) (finding that when seeking discovery "to aid the determination of whether a class action is maintainable, the plaintiff bears the burden of advancing a prima facie showing that the class action requirements of Fed. R. Civ. P. 23 are satisfied or that discovery is likely to produce substantiation of the class allegations"); Doninger v. Pacific Northwest Bell, Inc., 564 F.2d 1304, 1313 (9th Cir. 1977) 2 ("the burden is on the plaintiff to demonstrate that discovery measures are likely to produce persuasive 3 information substantiating the class allegations"). Together, Mantolete and Doninger "stand for the 4 proposition that a court does not abuse its discretion if it decides to require a prima facie showing that 5 class treatment is appropriate before allowing discovery on issues pertaining to class certification." 6 Kaminske v. JP Morgan Chase Bank, N.A., 2010 U.S. Dist. LEXIS. 141514, at *4 (C.D. Cal. May 21, 7 2010). However, the Ninth Circuit cautioned, "The propriety of a class action cannot be determined in 8 some cases without discovery, as for example, where discovery is necessary to determine the existence 9 of a class or set of subclasses." Kamm v. California City Development Co., 509 F.2d 205, 210 (9th Cir. 1975). Reviewing Doninger and Kamm, the Ninth Circuit concluded: "Our cases stand for the unremarkable proposition that often the pleadings alone will not resolve the question of class certification and some discovery will be warranted." Vinole v. Countrywide Home Loans, Inc., 572 F.3d 935, 942 (9th Cir. 2009).

III. Discussion and Analysis

Plaintiff alleges Defendant violated California wage and hour laws by requiring off-the-clock work and failing to compensate workers for all hours worked, forcing workers to purchase tools or otherwise supply their own tools, failing to provide daily rest periods and meal periods, failing to provide accurate itemized wage statements, and failing to maintain accurate time-keeping records. (Doc. 1 at 5-6). Accordingly, Plaintiff seeks the following categories of documents:

1. Company Policies and Practices -- Requests Nos. 9, 10, 12, 13 (policies communicating rest and meal breaks and relieving employees of work duties during these breaks) and 15 (pay rates).

2. Timekeeping Records -- Requests Nos. 3, 4, 5, 6, 7 (timekeeping, time cards, timesheets, start and stop times, time records, reports or summaries of time worked, work schedules), 8 and 11 (scheduling of rest and meal breaks).

3. Payroll Records -- Requests Nos. 1 (payroll records), 2 (itemized wage statements), 16 and 19 (piece rate or bonus payments, ...


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