Judge: Craig Griffin, Case: "Irvani v. Conway, et al.", Date: 2022-11-28 Tentative Ruling
Defendant Annette Conway’s (“Conway”) Motion for Terminating and/or Monetary Sanctions against Plaintiff Sepideh Irvani (“Irvani”) is DENIED.
As an initial matter, the Court notes that Conway’s reply brief (ROA 179) does not include a proof of service. Although the Court exercises its discretion to consider the reply, Conway is admonished to timely file proof of service for all future motions.
Sanctions are warranted when there are “[m]isuses of the discovery process,” such as “[f]ailing to respond or to submit to an authorized method of discovery” or “[d]isobeying a court order to provide discovery.” (C.C.P. §§ 2023.010; 2023.030.) C.C.P. § 2031.310(i) provides that if a party fails to obey an order compelling further responses to request for production of documents, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction, and/or monetary sanctions.
Conway seeks terminating and/or monetary sanctions against Irvani based on Conway’s contention that Irvani failed to comply with the Court’s May 23, 2022 discovery order related to Irvani’s responses to Request for Production (“RFP”), Set One. (See ROA 157.) The Court finds that terminating and/or monetary sanctions are not warranted here because Irvani’s supplemental RFP responses are code compliant and there is insufficient evidence that Irvani made false statements in said responses. (See Ex. C to Spirra Decl.; see also, Code Civ. Proc., § 2031.210; 2031.230.)
Conway contends that Irvani’s assertion that documents never existed must be false because all practicing psychologists are required by their rules of professional conduct to keep such billing and patient records. Conway also argues that it is “literally impossible” for these documents not to have existed because any psychologist who sees patients and gets paid for these services would have to have such records. While Conway may be correct that psychologists are required to keep such records pursuant to their rules of professional practice, this does not establish that Irvani in fact kept such records. As Irvani notes in her opposition, non-compliance with the rules of professional conduct would provide an alternative explanation for documents never existing. Thus, the fact that all practicing psychologists are required by their rules of professional conduct to keep billing and patient records does not establish that Irvani’s responses are false and that she failed to comply with the Court’s order.
Further, while Conway may be correct that any practicing psychologist would have to have some type of patient and billing records in order to maintain a practice, Irvani’s responses do not state that all such records have never existed. Rather, she states that to the extent she is unable to comply, the inability to comply is because the items requested never existed and that to the extent responsive documents have never been in her possession, custody, or control, she believes such items are likely in possession of certain third parties. (Ex. C to Spirra Decl.) Thus, it appears from the responses that Irvani asserts that at least some responsive documents are in the possession of third parties. Therefore, Conway’s broad contention that Irvani has falsely stated that none of the records she was ordered to produce ever existed fails.
Additionally, Irvani offers a plausible explanation for why certain records may not be in her possession, i.e., if she was part of a group practice, the subject records would not be under her possession, custody or control, but, instead, would be in the possession, custody and control of the group practice. As Irvani notes and Conway does not dispute, Conway has not conducted discovery into the structure or nature of Irvani’s prior practice. Thus, it remains unclear to the Court whether Irvani was or was not part of a group practice. It appears to the Court that further discovery and/or meet and confer efforts were warranted to clarify the issues in dispute.
The Court finds that there is insufficient evidence showing that Irvani is wrongfully withholding responsive documents and/or that she willfully disobeyed the Court’s order such that terminating and/or monetary sanctions should be imposed against Irvani. Accordingly, the motion is DENIED.
Irvani’s request for sanctions against Conway is also DENIED as the Court does not find the motion to have been brought in bad faith.
Counsel for Irvani to give notice.