Judge: Christian R. Gullon, Case: 24PSCV02383, Date: 2025-03-19 Tentative Ruling
Case Number: 24PSCV02383 Hearing Date: March 19, 2025 Dept: O
Tentative Ruling
MOTION FOR PROTECTIVE
ORDER TO EXTEND TIME TO RESPOND TO DEFENDANTS'
INTERROGATORIES is DENIED; as the motion was frivolous, monetary
sanctions are imposed upon Plaintiff. Plaintiff is to pay Defense Counsel
Dixon $2,400 and Defense Counsel Hughes $800 within 20 days of
this hearing. (Neither Defendant filed proposed orders.)
Background
This is a medical malpractice/negligence case. Plaintiff Ivy
Seto (in pro per) alleges the following against Defendants Oriental Medicine
Clinic (“the Clinic”), Bruce Chen (“Chen”) (aka Ying Shu Chan & Ying Shu
Chen), Melody Gong (“Gong”), and George Chiao-Tung Chang (“Chang”): On August
1, 2023, Plaintiff, a regular patient at the Clinic for acupuncture treatments
for her carpel tunnel since January 6, 2023, received certain chiropractic
maneuvers on her left arm and shoulder by Chang. Plaintiff “immediately” felt
pain and the “following day,” her left elbow and knees began swelling with
pain. Plaintiff alleges that Chang negligently performed the work and that Chen
negligent allowed Chang to do so.
On July 26, 2024, Plaintiff filed her original complaint for
General Negligence against the Clinic, Chen, Ying Shu Chan, and Chang.
On August 19, 2024, Plaintiff filed a first amended
complaint (FAC), adding Gong as a defendant.
On October 28, 2024, Chang filed his answer.
On October 29, 2024, BRUCE YING CHEN, LAc (Erroneously Sued
and Served As BRUCE CHEN (aka YING SHU CHAN & YING CHU CHEN) filed his
answer.
On October 31, 2024, Gong filed a demurrer. (The basis of
the demurrer is that the FAC is barred by the statute of limitations and the
FAC is uncertain.)
On December 23, 2024, Plaintiff filed her opposition to
Gong’s demurrer.
On January 8, 2024, Gong filed her reply in support of her
demurrer to the FAC.
On January 23, 2025, Chen filed an IDC statement.
On February 6, 2025, Chang filed an IDC statement.
On February 7, 2025, Plaintiff filed the instant motion for
a protective order.
On February 14, 2025, Chen filed his opposition to
Plaintiff’s motion.
On February 20, 2025, Plaintiff filed a MOTION TO DISMISS
FOR FAILURE TO PROSECUTE.
On March 4, 2025, Chang filed his opposition to Plaintiff’s
motion.
To date, no reply has been filed by Plaintiff in support
of her motion. Additionally, Plaintiff has not filed a CMC statement. The
hearing on the demurrer and CMC are set for is for 3/26 and the hearing on the
motion to dismiss is set for 4/14/25.
Discussion
Plaintiff moves for a protective order pursuant to Code of
Civil Procedure section 2030.090, extending the time to respond to Defendants'
Form and Special Interrogatories to March 31, 2025. (Motion p. 1:21-23.) The
statute authorizes the court to make any order that justice requires to protect
a party from unwarranted burden. (Motion p. 1, citing Fairmont Ins. Co. v.
Superior Court (2000) 22 Cal.4th 245, 255.) “In such case, the burden is on the
party seeking the protective order to show good cause for whatever order is
sought.” (Id. at p. 255.)
Plaintiff seeks a protective order as certain conditions
“directly impact Plaintiff's ability to focus on the complex task of responding
to detailed legal interrogatories.” (Motion p. 3:10-11.) Specifically,
Plaintiff argues her (a) Persistent difficulties with concentration and focus
b) Symptoms of anxiety and depression requiring ongoing treatment c)
Post-traumatic stress symptoms including insomnia and panic attacks and d) An
inability to concentrate for lengthy periods symptoms constitute a disability
under the Americans with Disabilities Act. (Motion p. 3.) (It is unclear whether
the ‘medical note’ submitted in support of Plaintiff’s motion even qualifies as
a ‘medical note’ as it was provided by a licensed clinical social worker who
uses “self-reflection and empathy” as means of ‘treating’ Plaintiff.)
For numerous reasons, the court denies the motion and
imposes monetary sanctions upon Plaintiff.
1. The
Motion is Untimely
As set forth in Defendant Chang’s opposition, CCP section
2030.090 requires a party seeking a protective order to “promptly move for a
protective order.” Plaintiff received the subject discovery from Chang on
November 13, 2024; Chen served his discovery on October 29, 2024. However,
Plaintiff did not seek a protective order until February 20, 2025, which is
months after the discovery was propounded and responses were due.
Therefore, for timeliness grounds alone, the motion is
DENIED.
2. Meet
and Confer
As argued by both Defendants, a condition precedent to
filing a motion for a protective order is that Plaintiff shall attempt to meet
and confer regarding the discovery at issue, in an attempt to resolve it. (CCP
section 2030.090(a).) Should such efforts fail to resolve the issue, Plaintiff
is obligated to provide a declaration attesting to her efforts to meet and
confer. (Id.) Plaintiff never met and conferred with Defense counsel
prior to filing for her protective order.
This motion is also denied on the failure to meet and
confer. The court notes that Plaintiff’s failure to meet and confer on any future
motion will result in the motion being taken off calendar.
3. Good
Cause
Plaintiff misconstrues the use of a protective order,
despite her own cited authority. A court may issue a protective order to
prevent unwarranted annoyance, embarrassment, oppression, or undue burden and
expense. Accordingly, Plaintiff’s purported illness is not a reason to issue a
protective order. And Plaintiff’s citation to Hernandez v. Superior (2004)
115 Cal.App.4th 1242 supports this. In Hernandez, despite Plaintiff’s
seeming characterization that the case involved a protective order, it involved
a request
to continue trial and reopen discovery due because the attorney died. Therefore,
not only is the case procedurally distinguishable but factually
distinguishable.
To the extent that Bahl v. Bank of America (2001) 89
Cal.App.4th 389, 398-399 to support her proposition the court may make
accommodations of medical conditions affecting litigation, the pincites provide
for no such discussion. The case involved the issue of whether a trial court
abused in discretion in a summary judgment proceeding to deny a plaintiff’s
request for a continuance because discovery was still on-going.
To the extent that Plaintiff argues that “requiring strict
compliance with discovery deadlines despite documented medical conditions would
impose an undue burden on Plaintiff” is unpersuasive. (Motion p. 4:3-7.)
Discovery is a part of every action and Plaintiff chose to file a
lawsuit.
4. Sanctions
Both Defendants seek monetary sanctions pursuant to CCP
section §2030.090(d).
For reasons set forth above, the motion was unnecessarily
filed. Rather, Plaintiff’s motion is a frivolous attempt at avoiding her
discovery obligations. In fact, as argued by Defendant Chang, Plaintiff has
demonstrated her ability to research and prepare multiple legal filings
notwithstanding her medical conditions; thus, there is no basis to grant an
extension to respond as she is plainly capable of doing so. (Chang Opp. p. 4.)
As for Defendant Chang, sanctions are even more warranted.
For one, Defendant provided an extension to Plaintiff’s responses to 1/24/25.
On 1/31/25, having received no responses, Counsel attempted to meet and confer.
Rather than contacting Defendant’s counsel to discuss the discovery at issue
and her failure to timely serve responses, Plaintiff filed her motion.
Defendant Chang requests sanctions in the amount of $3,000: 3.2 hours in
research, 1.2 hours of anticipated time to review the reply, and 1.6 hours to
appear and argue at $500/hour. Utilizing a lodestar approach and considering
the totality of the circumstances, the court finds $2,400 reasonable (no reply
was filed thus 1.2 hours was deducted).
As for Defendant Chen, Plaintiff promised to provide
responses on two other occasions, but no responses have been received.
Additionally, as to Defendant Chen, she represented that an extension was
granted and requested a second extension to March 1, 2025, which Defendant
maintains is untrue. Defendant Chen seeks sanctions in the total amount of
$800: three hours drafting this opposition and anticipated one hour appearing
for the hearing in this matter at $200/hour. (Counsel Dixon’s declaration notes
that “[t]he copying fees and service fees are not included in this calculation
for the sake of simplicity.”) Utilizing a lodestar approach and considering the
totality of the circumstances, the court finds the request reasonable.
Sanctions are payable to each Defense Counsel within 20 days
of this ruling.