Judge: Elaine Lu, Case: 22STCV10077, Date: 2023-09-19 Tentative Ruling

Case Number: 22STCV10077    Hearing Date: February 7, 2024    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Procedural Background

On March 23, 2022, Plaintiff Kristina Holman (“Plaintiff”) filed the instant wrongful termination action against Defendants Kerlan-Jobe Surgery Center, LLC, Kerlan-Jobe, LLC, Cedars-Sinai Kerlan Jobe Institute, and Cedars-Sinai Medical Center.  On April 28, 2022, Plaintiff filed the operative First Amended Complaint (“FAC”) against Defendants Kerlan-Jobe Surgery Center, LLC, Kerlan-Jobe, LLC, Cedars-Sinai Kerlan Jobe Institute,[1] Cedars-Sinai Medical Center, Cedar Sinai Medical Care Foundation, and Kerlan-Jobe Orthopaedic Clinic, a Medical Group Inc.  The FAC asserts eleven causes of action for (1) Retaliation in violation of Labor Code § 1102.5, (2) Retaliation in violation of Labor Code § 232.5, (3) Retaliation in violation of Health & Safety Code § 1278.5, (4) Discrimination on the Basis of Age in violation of the Fair Employment and Housing Act (“FEHA”), (5) Discrimination on the Basis of Disability in violation of FEHA, (6) Failure to Prevent Discrimination in violation of FEHA, (7) Retaliation in violation of FEHA, (8) Failure to Prevent Retaliation in violation of FEHA, (9) Failure to Accommodate in violation of FEHA, (10) Failure to Engage in a Good Faith Interactive Process in violation of FEHA, and (11) Wrongful Termination in violation of Public Policy.

On October 26, 2023, Plaintiff filed the instant motion for issue and evidentiary sanctions against Defendant Cedars-Sinai Medical Center (“CSMC”).  On November 13, 2023, Plaintiff filed an amended motion for issue and evidentiary sanctions against Defendant CSMC.  On January 25, 2024, Defendant CSMC filed an opposition.  On January 31, 2024, Plaintiff filed a reply.

A party is permitted to file only one moving memorandum.  Here, Plaintiff has filed two sets of moving papers.  The Court will consider only the most recently filed moving papers – the amended motion for issue and evidentiary sanctions against Defendant CSMC and accompanying supporting documents – as the moving papers. 

Allegations of the Operative Complaint

            The FAC alleges that:

            Kerlan-Jobe Surgery Center, LLC, Kerlan-Jobe, LLC, and Cedars-Sinai Kerlan-Jobe Institute (collectively “Kerlan-Jobe”) are a network of Orthopedic surgery centers and clinics founded by Doctors Robert Kerlan and Frank Jobe and mainly focused on select sports injuries.  (FAC ¶¶ 13-16.) 

            Plaintiff worked with Dr. Jobe for seven years at Centinela Hospital before being recruited to join Kerlan-Jobe in 1997.  (FAC ¶ 17.)  After both Dr. Kerlan and Dr. Jobe passed away, under new leadership Kerlan-Jobe increased its case load and expanded its portfolio of services to include pediatric orthopedics, total hip, and other services.  (FAC ¶¶ 22-23.) 

“Kerlan-Jobe partnered with Cedars Sinai Medical Center, Department of Orthopedics, to expand and/or establish a network of surgery centers and clinics launching the Cedars Sinai Kerlan-Jobe Institute.”  (FAC ¶ 24.) 

“Dr. Neal S. ElAttrache took over Dr. Jobe’s patients.”  (FAC ¶ 27.)  “His surgeries were substantially delayed because he overbooked himself.”  (FAC ¶ 28.)  “To mitigate the appearance of long delays, Dr. ElAttrache regularly brought patients into the operating room and put them under total, general anesthesia long before the actual surgery began.”  (FAC ¶ 29.)  “Dr. ElAttrache would abandon his patients for long periods of time sometimes upwards to around an hour or so to handle post-operation matters for other patients and/or his phone calls.”  (FAC ¶ 34.)  “All the while, his patients were needlessly exposed to general anesthesia and associated risks, charged for unnecessary medical care, and remained in the operating room until Dr. ElAttrache decided to return.”  (FAC ¶ 35.)  “This practice delayed the remaining surgeries scheduled for the day and forced surgery technicians to work late.”  (FAC ¶ 36.)  “[Plaintiff] and others objected to Dr. ElAttrache’s practices out of concern for patient care and because they felt overwhelmed to no avail.”  (FAC ¶ 38.)

In the summer of 2020, when Plaintiff was in her late 50s, management began pressuring Plaintiff to resign based on her age.  (FAC ¶¶ 42-44.)  “Trudy Wiig, the Administrator of the Surgery Center, asked [Plaintiff] whether she was willing to work part-time because of her age. The request was motivated by ageism. Ms. Wiig said words to the effect that [Plaintiff]’s name came up during a Board Meeting and they were concerned that in her old age she would not be able to keep up.”  (FAC ¶ 44.)  However, Plaintiff declined, expressing her design to keep working and regularly working overtime.  (FAC ¶ 45.) 

Trudy Wiig then asked Plaintiff to consider accepting a severance package from Defendants in exchange for early retirement, which Plaintiff also declined.  (FAC ¶¶ 47-48.)  “The next day, Kevin Bowdry, the Director of Nursing, asked [Plaintiff] to consider Ms. Wiig’s offers. [Plaintiff] refused.”  (FAC ¶ 49.)

“In the winter of 2020, multiple employees, including several surgery technicians, were out on leave due to illness.”  (FAC ¶ 51.)  This required Plaintiff to cover additional surgeries.  (FAC ¶ 54.)  Despite Kerlan-Jobe being overworked it continued to book additional surgeries forcing Plaintiff to give up her lunch and work without meal and rest breaks.  (FAC ¶¶ 55-56.)  In December 2020, Plaintiff confronted Kevin Bowdry about the intolerable work conditions, expressed concerns as to whether she was properly compensated for all hours worked, and complained that Dr. ElAttrache’s preference for high volume and unnecessarily exposing patients to general anesthesia without true consent was placing patients at risk.  (FAC ¶¶ 57-60.)  However, Kevin Bowdry dismissed Plaintiff’s concerns.  (FAC ¶ 61.)

On May 17, 2021, Plaintiff’s doctor placed her on medical leave so that she could undergo treatment for rheumatoid arthritis.  (FAC ¶ 62.)  On August 17, 2021, Plaintiff exhausted her 12-week CFRA/FMLA leave and required an extension of medical leave through October 4, 2021 for a total of four months and two weeks of leave.  (FAC ¶¶ 63-64.)  Such leave had been regularly provided in the past to Plaintiff, (FAC ¶ 40), and provided to younger employees who took even longer leaves, (FAC ¶¶ 53, 67-68).  However, when Plaintiff’s doctor notified Kerlan-Jobe on October 1, 2021 that Plaintiff would be able to return full time without restriction on October 5, 2021, Plaintiff was thereafter terminated despite work being available.  (FAC ¶¶ 69-70.)  This was done as Defendants preferred substantially younger employees.  (FAC ¶ 71.)  In fact, Defendants replaced Plaintiff the week she was due to return to work with a substantially younger surgery technician with less experience than Plaintiff.  (FAC ¶ 73.)  Further, Defendants continue to fill surgery technician openings with substantially younger employees.  (FAC ¶ 74.)

Legal Standard

Code of Civil Procedure section 2023.030 provides that, “[t]o the extent authorized by the chapter governing any particular discovery method . . . , the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose . . . [monetary, issue, evidence, or terminating] sanctions against anyone engaging in conduct that is a misuse of the discovery process . . . .”  Code of Civil Procedure section 2023.010 provides that “[m]issues of the discovery process include, but are not limited to, the following: . . . (d) Failing to respond or to submit to an authorized method of discovery. . . . (g) Disobeying a court order to provide discovery . . . .”

“Nevertheless, absent unusual circumstances, such as repeated and egregious discovery abuses, two facts are generally prerequisite to the imposition of a nonmonetary sanction. There must be a failure to comply with a court order and the failure must be willful.”  (Lee v. Lee (2009) 175 Cal.App.4th 1553, 1559.)  “Even where nonmonetary sanctions are called for, they ‘ “...’should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.’ [Citations.] ‘ “... [¶] The sanctions the court may impose are such as are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks, but the court may not impose sanctions which are designed not to accomplish the objects of discovery but to impose punishment.’ ” ’ [Citations.]”  (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.)

“A trial court has broad discretion when imposing a discovery sanction.”  (Lee, supra, 175 Cal.App.4th at p.1559.)  “In exercising this discretion [for nonmonetary sanctions], a variety of factors may be relevant, including, 1) the time which has elapsed since [the discovery requests] were served, 2) whether the party served was previously given a voluntary extension of time, 3) the number of [the discovery requests] propounded, 4) whether the unanswered questions sought information which was difficult to obtain, 5) whether the answers supplied were evasive and incomplete, 6) the number of questions which remained unanswered, 7) whether the questions which remain unanswered are material to a particular claim or defense, 8) whether the answering party has acted in good faith, and with reasonable diligence, 9) the existence of prior orders compelling discovery and the answering party's response thereto, 10) whether the party was unable to comply with the previous order of the court, 11) whether an order allowing more time to answer would enable the answering party to supply the necessary information, and, 12) whether a sanction short of dismissal or default would be appropriate to the dereliction.”  (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 796–797.)

Discussion

            Plaintiff seeks 13 issue and evidentiary sanctions on the grounds that Defendant CSMC failed to comply with the June 27, 2023 Order and the August 1, 2023 Order. 

There is No Failure to Comply with the June 27, 2023 Order          

            The June 27, 2023 Order addressed Defendant Kerlan-Jobe Surgery Center, LLC (“Surgery Center”) and Defendant CSMC’s motion for a protective order.  (Order 6/27/23.)  The Court found an absence of good cause for the protective order Defendants sought, denied the motion, and issued monetary sanctions against Defendants Surgery Center and CSMC.  (Order 6/27/23.)  The only order within the Court’s June 27, 2023 Order that Defendant CSMC could have possibly violated is the order to pay monetary sanctions.  However, Plaintiff does not contend that Defendant CSMC failed to pay the monetary sanctions. 

            Regardless, a failure to pay monetary sanctions does not warrant further sanctions as monetary sanctions “have the force and effect of a money judgment, and are immediately enforceable through execution, except to the extent the trial court may order a stay of the sanction.”  (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615.) 

            Accordingly, Plaintiff fails to establish that the Court should impose any issue or evidentiary sanctions for any violation of the June 27, 2023 Order.

Failure to Comply with the August 1, 2023 Order

            On August 1, 2023, the Court issued two written orders.  The first order ruled on Plaintiff’s motion to compel Defendant CSMC to provide further responses to Request for Production, Set Two.  The Court has already addressed Defendant CSMC’s failure to comply with this first August 1, 2023 order in a separate order ruling on a different motion by Plaintiff seeking sanctions.  (Order 1/30/24.)  The second August 1, 2023 order ruled on Plaintiff’s amended motion to compel Defendant Surgery Center to serve responses to Plaintiff’s Request for Production of Documents, Set One, Nos. 1-145, 165-205, Plaintiff’s Specially Prepared Interrogatories, Set One, Nos. 1-104, 110-127, Plaintiff’s Form Interrogatories Employment Law, Set One, and Plaintiff’s Requests for Admission, Nos. 1-29; to compel Defendant CSMC to serve responses to Request for Production of Documents Set One, Nos. 1-17, 31-56 and Specially Prepared Interrogatories, Set One Nos. 1-34; and to compel Defendants to further respond to Form Interrogatories Employment Law, No. 216.1 (“Order 8/1/23”).  Plaintiff had improperly combined seven discovery motions involving at least four different defendants into one omnibus motion.  (Order 8/1/23 at Fn. 2.)  As a result, the second August 1, 2023 Order that is at issue was partially unclear. 
            However, in relevant part, the Court Ordered Defendant CSMC to provide verified code compliant responses to Request for Production of Documents, Set One without objection within twenty days of notice of the order.  (Order 8/1/23 at pp.5:24-6:24, 14:12-14.)  The parties further stipulated, and the Court Ordered that “[f]or patient records that Defendants produce pursuant to the instant order, the parties stipulated in court today that all personal identifying information shall be redacted except for the last four digits of the patient record/patient identification number, and all such patient records shall be marked as confidential.”  (Order 8/1/23 at p.14:16-19.)

            On August 4, 2023, Plaintiff gave notice of this order.  (Nesbit Decl. ¶ 13, Exh. F.)  CSMC did not serve any further responses.  (Gevorkian Decl. ¶ 10.)  Rather, Defendant CSMC claims that it had complied with the Court’s August 1, 2023 Order by virtue of the July 28, 2023 responses.  (Gevorkian Decl. ¶ 6, Exh. 7; Nesbit Decl. ¶ 12, Exh. E.)  Plaintiff asserts that the July 28, 2023 responses to the Request for Productions, Set One (“RPDs”) No. 8, 10, 11, 16, 17, 19, 20, 25, 32-34, 36, 37, 42, and 51 are insufficient and that the Court should therefore impose monetary and issue sanctions.

            Issue Sanctions 7 and 9

The August 1, 2023 Order at issue did not require a response to RPDs Nos. 19, 20, or 25 as Plaintiff had only moved to compel CSMC’s response to RPDs Nos. 1-17, 31-56.  (Order 8/1/23 at p.2:16-17.)  Thus, Defendant CSMC could not have failed to comply with the August 1, 2023 Order by virtue of any response or lack of response to RPDs Nos. 19, 20, or 25.  Accordingly, the requested issue and evidentiary sanctions based solely on the responses to RPDs Nos. 19, 20, or 25 – i.e., Issue Sanctions 7, and 9 – must be denied.

            The Remaining July 28, 2023 Responses do Not Comply with the August 1, 2023 Order

            Here, a portion of each of Defendant CSMC’s responses to the RPDs contains a nearly identical objection:

Defendant incorporates its Preliminary Statement and General Objections above, as though fully set forth herein. Defendant objects to this request on the ground that it is vague and ambiguous, including as to "concerning, relating to and/or referencing" and "organization charts." Defendant also objects that this request is compound. Defendant also objects to this request as it is overbroad as to time and scope as Defendant is informed and believes Plaintiffs employment ended with Kerlan-Jobe Surgery Center, LLC in October 2021 and Plaintiff was never employed with nor does Plaintiff allege that she was employed by Defendant or Cedars-Sinai Medical Care Foundation. Defendant further objects to this request as overbroad as to time and scope as Defendant as this request is not narrowly tailored to a reasonable time frame. Defendant further objects to this request to the extent that it seeks documents that are neither relevant to the claims at issue nor reasonably calculated to lead to the discovery of admissible evidence. Defendant further objects to this request to the extent that it seeks sensitive and confidential business, financial, or proprietary documents. Defendant further objects to this request on the ground that it seeks documents protected by the attorney-client privilege and the attorney work product doctrine. Defendant further objects to this request on the grounds that it is oppressive and intended to harass, annoy, and embarrass. Defendant further objects to this request on the grounds that it is oppressive and intended to harass, annoy, and embarrass and cause Defendant undue expense.

(See e.g., Response to RPD No. 17.)

            Here, the August 1, 2023 Order at issue required Defendant CSMC to provide “verified code compliant responses to the Request for Production of Documents, Set One at issue … without objections, within twenty (20) days of notice of this order.”  (Order 8/1/23 at p.14:12-14, [Bold, Italics, Underline Added].)  Moreover, Defendant CSMC’s failure to timely respond to the RPDs waived any objections including those of privilege.

Under Code of Civil Procedure section 2031.260 subdivision (a), a party must respond to requests for production of documents within 30 days of service.  However, this time limit is extended if served by mail, overnight delivery, fax, or electronically.  (See CCP §§ 1010.6(a)(4), 1013.)  Failure to timely respond waives all objections including privilege or on the protection of work product.  (See CCP § 2031.300(a).) 

The RPDs were originally propounded on May 24, 2022.  (Order 8/1/23 at p.6:10-11.)  After numerous met and confer letters, Defendant CSMC filed a motion for a protective order on September 22, 2022 which the Court denied on June 27, 2023.  (Order 8/1/23 at p.6:11-16; Order 6/27/23.)  Even presuming that the thirty-day deadline to respond to the RPDs restarted after the denial of the protective order, the July 28, 2023 responses would still be untimely.  Defendant CSMC was at the June 27, 2023 hearing and had actual notice of the order that day.  (Minute Order 6/27/23.)  However, Defendant CSMC did not provide timely responses – even with a pending motion to compel responses – until July 28, 2023 – i.e., 31 days after notice of the order denying the protective order.  Thus, any objections had been waived by statute.

Accordingly, any inclusion of any objection was not code compliant as all objections had been waived and in clear violation of the August 1, 2023 Order at issue by not being code compliant and for including objections.

            In addition to the improperly included objections, the substantive responses are further non-compliant with the August 1, 2023 Order at issue.  In the responses to RPDs No. 8, 10, 11, 16, 32, 33, 34, 36, 37, 42, and 51, Defendant CSMC identically states that:

Subject to and without waiving the foregoing objections, Defendant responds as follows: After a reasonable and diligent inquiry, Defendant is unable to comply with this request because Plaintiff has refused to clarify and/or narrow the time and scope of this request so as phrased, Defendant is unable to locate or identify documents responsive to this request without having to expend substantial time and resources to do so. Defendant is willing to further meet and confer with Plaintiff to understand and narrow the time and scope of this request to determine if there are documents that are reasonably calculated to lead to the discovery of admissible evidence related to the allegations in Plaintiffs lawsuit.

(See e.g., Supplemental Response to RPD No. 16.)

            This substantive response is improper in that it is subject to the improper and overruled objections and merely asserts other objections based on burden and vagueness.  The Court agrees that the requests are overbroad as no time frame is specified as to any of these RPDs, and a request for all documents spanning from the Defendant CSMC’s conception to the present day is unreasonable.  Even Plaintiff’s proposed evidentiary sanctions are limited to the relevant time period.  However, to the extent that it was not reasonably possible to respond to any RPD as ordered, it was incumbent on Defendant CSMC to request a limitation from the Court at the hearing or through a reconsideration motion.  Defendant CSMC could have also requested relief through a writ.  It was not proper for Defendant CMSC to merely assert objections in violation of the August 1, 2023 Order at issue, which required code compliant responses without objection.

            As to the remaining RPD No. 17, Defendant CSMC provides the identical substantive response in the supplemental responses:

Subject to and without waiving the foregoing objections, Defendant responds as follows: After a reasonable and diligent inquiry, Defendant does not have any documents in its possession, custody or control responsive to this request because they have never existed.

(Response to RPD No. 17.)

            This response is subject to the waived objections in violation of the August 1, 2023 Order.  In sum, Defendant CSMC has clearly violated the August 1, 2023 Order at issue.

            Sanctions are Warranted

            “[T]wo facts are generally prerequisite to the imposition of a nonmonetary sanction. There must be a failure to comply with a court order and the failure must be willful.”  (Lee v. Lee (2009) 175 Cal.App.4th 1553, 1559.)  Moreover, “[e]ven where nonmonetary sanctions are called for, they ‘ “...’should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.’ [Citations.] ‘ “... [¶] The sanctions the court may impose are such as are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks, but the court may not impose sanctions which are designed not to accomplish the objects of discovery but to impose punishment.’ ” ’ [Citations.]”  (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.)

            As noted above, CSMC has violated the August 1, 2023 Order at issue.  Defendant CSMC’s assertion of waived objections and failure to provide a response after the August 1, 2023 Order indicate that CSMC’s violations are willful, thus potentially warranting nonmonetary sanctions as requested by the issue sanctions. 

            However, the Court is inclined to provide CSMC one final opportunity to comply with the August 1, 2023 Order at issue.  Therefore, Plaintiff’s request for issue sanctions 1-6, 8, 10-13 against Defendant CSMC is CONTINUED.

Monetary Sanctions

            Here, as Defendant CSMC has failed to comply with the August 1, 2023 Order at issue monetary sanctions are warranted.

            “If a party then fails to obey an order compelling further response [to interrogatories, request for production, or requests for admission], the court may … impose a monetary sanction under [CCP § 2023.030.]”  (CCP §§ 2030.300(e), 2031.310(i), 2033.290(e).)  Under Code of Civil Procedure section 2023.030(a), the court may impose sanction covering the costs of “reasonable expenses, including attorney’s fees”.  (CCP § 2023.030(a).) 

            Here, Plaintiff’s Counsel states that she spent seven hours preparing the instant motion and anticipates spending another four hours in connection with this motion at an hourly rate of $590 and incurred filing fees.  (Gevorkian Decl. ¶ 20.)  The requested amount is high and somewhat excessive, especially given that Plaintiff’s Counsel has repeatedly refiled amended motions instead of filing one proper and complete motion the first time.  Based on the totality of the circumstances, the Court finds that $4,500.00 reasonably compensates Plaintiffs for attorney’s fees and costs incurred in bringing this motion.

            Defendant Cedars-Sinai Medical Center is ordered to pay monetary sanctions in the amount of $4,500.00 to Plaintiff Kristina Holman by and through counsel, within thirty (30) days of notice of this order. 

Conclusion and ORDER

Based on the foregoing, Plaintiffs Kristina Holman’s motion for issue and evidentiary sanctions is GRANTED IN PART – with respect to monetary sanctions.

            Defendant Cedars-Sinai Medical Center is ordered to pay monetary sanctions in the amount of $4,500.00 to Plaintiff Kristina Holman by and through counsel, within thirty (30) days of notice of this order. 

            Plaintiff’s request for Issue Sanctions 7 and 9 is DENIED.

            Plaintiff’s request for Issue Sanctions 1-6, 8, 10-13 is CONTINUED to April 2, 2024 at 8:30 am.

            Defendant Cedars-Sinai Medical Center is to ordered to serve further, verified, code compliant responses as to Request for Production, Set One Nos. 8, 10, 11, 16, 17, 32, 33, 34, 36, 37, 42, and 51 with the temporal limitation of January 1, 2014 through December 31, 2021 without objection and provide responsive documents no later than March 6, 2024.  Defendant’s failure to do so will result in the imposition of the remaining requested issue sanctions against Defendant.

            Plaintiff and Defendant Cedars-Sinai Medical Center are to file a joint statement no later than March 11, 2024 identifying whether Defendant Cedars-Sinai Medical Center has complied with the instant order and attaching Defendant’s further responses. 

Moving Parties are to give notice and file proof of service of such.

DATED:  February ___, 2024                                                           ___________________________

Elaine Lu

                                                                                          Judge of the Superior Court