Fuentes v. La Cumbre Enterprises, Inc., et al.

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Click on line 6 for tentative ruling LINE 7 23CV426584 Olguin v. Talamo Food Service, Inc. Motion: Approval (PAGA) GRANTED

Click on line 7 for tentative ruling LINE 8 23CV427637 Fuentes v. La Cumbre Enterprises, Motion: Compel is Inc., et al. (PAGA) GRANTED

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Case Name: Fuentes v. La Cumbre Enterprises, Inc., et al. Case No.: 23CV427637

This action arises from Plaintiff Rosa Fuentes’ employment for defendants La Cumbre Enterprises, Inc. (“La Cumbre”), Soany L. Guerra (“Guerra”), Avi Avanessian (“Avanessian”) (collectively, “Defendants”).

Before the Court is Plaintiff’s motion to compel Avanessian to provide responses, which is opposed. For reasons discussed below, the Court GRANTS Plaintiff’s motion and GRANTS her request for sanctions at a reduced amount.

XXVII. BACKGROUND

According to the allegations of the operative complaint (“Complaint”), Plaintiff was employed by Defendants from January 26, 2019 through June 2, 2023 at the nightclub named Club Caribe (the “Club”). (Complaint, ¶ 23.) She entered into an oral agreement where Defendants agreed to pay her an hourly wage plus gratuities left by Defendants’ customers at tables serviced by her. (Complaint, ¶ 24.) Plaintiff’s hourly wage was $17.00 at the time of the separation of employment. (Ibid.) Defendants failed to compensate her for all time under Defendants’ control, all wages due, provide timely rest periods, expense reimbursements, itemized wage statements, or all wages due upon of employment. (Complaint, ¶ 25.)

Defendants often failed to pay Plaintiff earned wages in a timely fashion. (Ibid.) Defendants terminated Plaintiff’s employment in retaliation for initiating a claim with the Labor Commissioner’s office to recover unpaid wages, premiums, and related penalties. (Ibid.)

Based on the foregoing, Plaintiff initiated this action on December 12, 2023, with the filing of the Complaint, which asserts the following causes of action: (1) failure to pay all wages owed; (2) failure to provide meal and rest periods; (3) failure to pay wages on separation; (4) failure to maintain accurate time records; (5) failure to provide accurate itemized wage statements; (6) retaliation; (7) recovery under the Private Attorneys General Act (“PAGA”); and (8) unfair competition. On November 24, 2025, the Court (Hon. Adams) issued its order which denied Defendant’s motion for summary judgment and in the alternative, its motion for summary adjudication.

XXVIII. UNTIMELY OPPOSITION

As an initial matter, Plaintiff’s counsel requests that the Court reject the opposition in its entirety on the ground that it is untimely filed.

Code of Civil Procedure section 1005, subdivision (b), requires all opposing papers to be filed and served at least nine court days before the hearing. No paper may be rejected for filing on the ground that it was untimely submitted for filing. (Cal. Rules of Court, Rule 3.1300(d).) If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must indicate. (Ibid.) “A trial court has broad discretion to under rule 3.1300(d) of the California Rules of Court to refuse to consider papers served and filed beyond the deadline without a prior court order finding good cause for late submission.” (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765.)

Here, the hearing for the instant motion is on July 23, 2026. Thus, Avanessian was required to file his opposition by July 10, 2026 in order to be timely. However, the opposition was not filed until July 13, 2026, which is eight court days before the hearing. Despite the late filed opposition, Plaintiff timely filed and served her reply papers addressing the opposition. The Court does not condone Avanessian’s actions, however, it does not appear that Plaintiff has suffered prejudice as a result of the untimely opposition and courts have a strong policy favoring the disposition of cases on the merits rather than on procedural grounds (see Fox v.

Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806), the Court will consider the substantive merits of the opposition. (See also Kapitanski v. Von’s Grocery Co. (1983) 146 Cal.App.3d 29, 32 [cognizant of the strong policy favoring the disposition of cases on their merits...judges frequently consider documents which have been untimely filed.].) Defense counsel is admonished to comply with all applicable deadlines in the future as the failure to do so may lead to a different outcome.

The Court will now turn to the merits of the motion.

XXIX. LEGAL STANDARD

If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction. (Code Civ. Proc section 2030.290, subd. (b).) The statute contains no time limit for a motion to compel where no responses have been served. All that needs to be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. (Leach v.

Superior Court (1980) 111 Cal.App.3d 902, 905-906.) A party waives its objections to a discovery request when it does not serve a timely response to the request. (Code Civ. Proc. 2030.290(a).) Similarly, a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it fails to serve a timely response, the party making the demand may move for an order compelling response to the demand. (Code Civ. Proc., §2031.300, subd. (b).) Even if objections do not need to be verified, objections will be waived if the responding party “fails to file any response within the statutory time period.” (Food 4 Less Supermarkets, Inc. v.

Superior Court (1995) 40 Cal.App.4th 651, 658.) The burden is on the responding party to justify any objections or failure to fully answer. (Coy v. Superior Court (1962) 58 Cal.2d 210, 220–221 (Coy).)

XXX. DISCUSSION

Plaintiff moves for an order directing Avanessian to provide verified objection free responses to Special Interrogatories, Set One (“SROG, Set One”); Form Interrogatories- Employment Law-Set One (“FI, Set One”); and Requests for Production, Set One (“RFP, Set One”). (Plaintiff’s Notice of Motion, p. 2:4-11.) Plaintiff also seeks monetary sanctions in the amount of $7,485. (Notice, p. 2:12.)

On November 19, 2025, Plaintiff served SROG, Set One and RFP, Set One to Avanessian (the “November 19 Discovery”). (Plaintiff’s Memorandum of Points and Authorities (“MPA”), p. 2:13-16.) On March 5, 2026, she served FI, Set One (the “March 5 Discovery”). (MPA, p. 2:22-25.) Responses to the November 19 Discovery was due on December 22, 2025, however the deadline was mutually extended to January 13, 2026. (MPA, p. 3:1-2.) The deadline for the March 5 Discovery was April 6, 2026. (MPA, p. 3:2-3.)

On April 6, 2026, Avanessian provided unverified responses to SROG, Set One but he has not provided verified responses. (MPA, p. 3:6-8.) Plaintiff attempted to meet and confer with Avanessian since January 2026. (MPA, p. 3:9-12.) On April 7, 2026, the Court held an informal discovery conference (“IDC”) where it set a further IDC and the hearing for the instant motion.

In opposition, Avanessian states that Defendants produced all relevant documents involving Plaintiff’s employment approximately two years ago and subsequent discovery requests were responded to. (Avanessian’s Opposition (“Opp.”), p. 2:9-11.) Avanessian contends that Plaintiff now seeks a separate set of discovery relating to wages paid to 84 employees who were employed during the same time Plaintiff was and that those documents have been produced. (Opp., p. 2:11-17.)

A. RFP, Set One

A party shall respond separately to each RFP with: (1) a statement of compliance; (2) a representation the party lacks the ability to comply; or (3) an objection to the particular RFP. (Code Civ. Proc, § 2031.210(a).) By failing to serve timely responses, the responding party waives any objection to the RFPs. (Code Civ. Proc, § 2031.300(a).)

Code of Civil Procedure section 2031.280, subdivision (a), provides that “[a]ny documents or categories of documents produced in response to a [production demand] shall be identified with the specific request number to which the documents respond.” A statement of compliance must “state that ... all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.” (Code Civ. Proc, § 2031.220.) A proper statement of compliance must state that the production and inspection demanded will be allowed (in whole or in part); and that the documents or things in the demanded category that are in the responding party's possession, custody or control will be produced. (See Code Civ. Proc, § 2031.220.)

Here, Avanessian did not provide any responses to RFP, Set One. He contends the relevant documents have already been produced. Additionally, Defense counsel J. Philip Martin (“Martin”) attached a copy of the list of 84 employees produced on May 20, 2026. (See Martin Declaration (“Martin Decl.”), ¶ 2; Exh. 1.) However, the production of the list does not constitute responses to RFP, Set One. Thus, Plaintiff’s motion is GRANTED and Avanessian is ordered to provide code compliant responses without objection. (See Code Civ. Proc., § 2031.330, subd. (a).)

B. FI, Set One

With regard to FI, Set One, Avanessian states that Defendants will be serving responses to FI, Set One. (Opp., p. 2:17-18.) He did not provide a deadline for the response.

At this time, there is no evidence that any responses have been served. Thus, Plaintiff’s motion is GRANTED and Avanessian is ordered to serve code compliant responses without objection. (See Code Civ. Proc., § 2030.290, subd. (a).)

C. SROG, Set One

Avanessian’s opposition fails to address SROG, Set One at all. By failing to verify his responses, Avanessian essentially did not respond to the discovery at all. (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636 [“unverified responses are tantamount to no responses at all.”].) Thus, Plaintiff’s motion is GRANTED and Avanessian is ordered to provide verified code compliant responses without objection.

D. Sanctions

Plaintiff requests sanctions in the amount of $7,485.

If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction. (Code Civ. Proc section 2030.290, subd. (c); 2031.300, subd. (c) [RFPs]; .) “The court shall impose a monetary sanction... against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust...” (Code Civ. Proc., § 2030.290, subd. (c).) “[T]he phrase ‘substantial justification’ has been understood to mean that a justification is clearly reasonable because it is well grounded in both law and fact.” (Doe v. United States Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1434 (Doe).)

Here, Martin fails to address Plaintiff’s request for sanctions. Moreover, he fails to provide any information regarding the failure to provide discovery responses. Thus, based on the information before it, the Court cannot conclude that Avanessian acted with substantial justification in failing to respond to Plaintiff’s discovery requests. Plaintiff’s counsel Daniel Menendez (“Menendez”) states that he spent at least 12 hours reviewing the file, meeting and conferring with defense counsel, attending IDCs and filing related documents, and preparing the instant motion. (Menendez Declaration, ¶ 19.) The Court finds this amount to be excessive because the motion itself is relatively straightforward. Thus, the Court reduces the amount to $5,010 (10 hours x $495/per hour + filing fee).

Accordingly, Plaintiff’s request for sanctions is GRANTED at the reduced amount.

V. CONCLUSION

Plaintiff’s motion to compel is GRANTED and her request for sanctions is GRANTED at the reduced amount. Avanessian is ordered to provide code-compliant responses without objections with 10 days of this order.

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