Judge: George F. Bird, Jr., Case: BC681477, Date: 2023-02-07 Tentative Ruling

Case Number: BC681477    Hearing Date: February 7, 2023    Dept: B

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – SOUTH CENTRAL DISTRICT

I.       BACKGROUND

             Plaintiffs are Marissa Kelly and Caroline Kelly (“Plaintiffs”), individually, and as the successors in interest of their brother, decedent George M. Kelly. The Fourth Amended Complaint states that George M. Kelly, a minor, suffered from Chronic Granulomatous Disease (“CGD”) which is a disorder of the leukocyte function which left George M. Kelly imuno-compromised. (Fourth Amended Complaint (“FAC”), ¶ 20.) As a result of his condition, George M. Kelly suffered from repeated infections and was hospitalized frequently. (FAC, ¶ 22.) Defendant Dr. Joseph Church M.D. (“Defendant”) is alleged to be the physician responsible for diagnosing George M. Kelly and was George M. Kelly’s doctor “at every turn.” (FAC, ¶ 26.)

            In 2014, Defendant allegedly referred George M. Kelly to Dr. Neena Kapoor M.D. who rejected George M. Kelly for a bone marrow transplant. (FAC, ¶ 27.) In 2016, Defendant again recommended speaking to Dr. Neena Kapoor M.D. about a bone marrow transplant, and she was willing to go forward with the transplant this time. (Ibid.)

            Defendant allegedly did not disclose that Dr. Neena Kapoor M.D. would use a T-cell depleted transplant referred to as the Bellicum Protocol (“Bellicum Protocol”), and Plaintiffs allege the Bellicum Protocol deviates from the standard of care. (FAC, ¶ 28.) Plaintiffs allege that Defendant failed to disclose that the Bellicum Protocol was strictly experimental, that a waiver was required to allow George M. Kelly to receive the transplant because he did not fit the inclusion criteria, or that the Bellicum Protocol did not comply with the procedures for a Haplo transplant in the transplant community. (FAC, ¶ 30.) 

            George M. Kelly underwent three bone marrow transplants in accordance with the Bellicum Protocol and all the transplants failed. George M. Kelly died on October 30, 2016, from encephalitis, Disseminated Fungal Disease, Chronic Granulomatous Disease, and Renal Failure. (FAC, ¶ 37.) Plaintiffs allege that Defendant’s actions were a direct cause of George M. Kelly’s death. (FAC, ¶ 139.)

            The only remaining causes of action alleged against Defendant are (1) wrongful death and (2) medical negligence. (See Notice of Ruling on Demurrers/Motions to Strike, May 19, 2022.)

II.       MOTIONS TO COMPEL DISCOVERY

A.    Motions filed on January 10, 2023.  

            Defendant filed six motions related to discovery: (1) Motion to Compel Plaintiff Marisa Kelly to Provide Verified Responses to Form and Special Interrogatories, Set One, and (2) Motion to Compel Plaintiff Caroline Kelly to Provide Verified Responses to Form and Special Interrogatories, Set One (collectively “Motions to Compel Form and Special Interrogatories”); (3) Motion to Compel Plaintiff Marisa Kelly to Provide Verified Responses Without Objection to Requests for Production of Documents, Set One, and (4) Motion to Compel Plaintiff Caroline Kelly to Provide Verified Responses Without Objection to Requests for Production of Documents, Set One (collectively “Motions to Compel Production of Documents”); (5) Motion for Order Deeming the Matters Specified in the Request for Admissions, Set One, Directed to Plaintiff Marisa Kelly, Admitted and (6) Motion for Order Deeming the Matters Specified in the Request for Admissions, Set One, Directed to Plaintiff Caroline Kelly, Admitted (collectively “Motions to Deem Requests for Admissions as Admitted”) ( all motions collectively “Motions”). The Motions to Compel Form and Special Interrogatories and Motions to Compel Production of Documents request sanctions.

            After a review of the Motions, they are all based on the same set of underlying facts declared by Lee M. Moulin, Esq., attorney for Defendant. Each underlying discovery request, including the form interrogatories, special interrogatories, requests for production of documents, and requests for admission, are identical for Plaintiff Marisa Kelly and Plaintiff Caroline Kelly.

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B.     Plaintiffs failed to file any oppositions.

            Under Code of Civil Procedure section 1005, subdivision (b), any papers in opposition to a motion to compel discovery must be served and filed nine (9) court days before the hearing. As of February 2, 2023, three (3) court days before the hearing, Plaintiffs have not filed any oppositions.

III.       LEGAL STANDARDS

A.    Motions to compel responses.

            A defendant may make a demand for production of documents and propound interrogatories without leave of court at any time. (Code Civ. Proc., § 2031.020, subd. (a); Code Civ. Proc., § 2030.020, subd. (a).) The demand for production of documents is not limited by number, but the request must comply with the formatting requirements in Code of Civil Procedure section 2031.030. A party may propound 35 specially prepared interrogatories that are relevant to the subject matter of the pending action and any additional number of official form interrogatories that are relevant to the subject matter of the pending action. (Code Civ. Proc., § 2030.030, subds. (a)(1) and (a)(2).)

            The party whom the request is propounded upon is required to respond within 30 days after service of a demand, but the parties are allowed to informally agree to an extension and confirm any such agreement in writing. (Code Civ. Proc., § 2031.060, subd. (a); Code Civ. Proc., § 2030.060, subd. (a); Code Civ. Proc., § 2031.070, subds. (a) and (b); Code Civ. Proc., § 2030.070, subds. (a) and (b).)

            If a party fails to timely respond to a request for production or interrogatories, the party to whom the request is directed waives any right to exercise the option to produce writings under Code of Civil Procedure section 2030.230, and waives any objection, including one based on privilege or on the protection for work product. (Code Civ. Proc., § 2031.300, subd. (a); Code Civ. Proc., § 2030.290, subd. (a).) 

            The party who propounded the discovery request may bring a motion to compel and 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 a demand for production of documents or interrogatories, unless the court 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., § 2031.300, subd. (c); Code Civ. Proc., § 2030.290, subd. (c).)

B.     Request to deem Request for Admissions as admitted. 

            A defendant may make a Request for Admission without leave of court at any time. (Code Civ. Proc., § 2033.020, subd. (a).) There is no limit to the number of requests for admission of the genuineness of documents. (Cde Civ. Proc., § 2033.030, subd. (c).) The party making the request for admission is limited to 35 matters that do not relate to the genuineness of documents. (Code Civ. Proc., § 2033.030, subd. (a).)

            The party whom the request is propounded upon is required to respond within 30 days after service of a demand, but the parties are allowed to informally agree to an extension and confirm any such agreement in writing. (Code Civ. Proc., § 2033.250, subd. (a); Code Civ. Proc., § 2033.260, subds. (a) and (b).) 

            If a party fails to respond to a Request for Admission, the party to whom the request is directed waives any objection to the requests, including one based on privilege or on the protection for work product. (Code Civ. Proc., § 2033.280, subd. (a).)  The requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction, which the court shall grant unless it finds that the party to whom the request for admission has been directed has served, before the hearing on the motion, a proposed response to the Requests for Admission. (Code Civ. Proc., § 2033.280, subds. (b) and (c).) It is mandatory that the court impose a monetary sanction on the party or attorney, or both, whose failure to serve a timely response to Requests for Admission necessitated the motion. (Code Civ. Proc., § 2033.280, subd. (c).)

C.     Sanctions.

            Misuse of the discovery process constituting conduct subject to sanctions include “failing to respond or to submit to an authorized method of discovery” and “failing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery.” (Code Civ. Proc., § 2023.010, subds. (d) and (i).) The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct. (Code Civ. Proc., § 2023.030, subd. (a).)

IV.       DISCUSSION

            Defendant served Plaintiffs the underlying discovery requests on October 24, 2022. (Decl. of Lee M. Moulin, Esq. attached to each motion, ¶ 3.) Responses to all requests were due 30 days after service on November 23, 2022. On November 16, 2022, counsel for Plaintiffs requested the Word versions of the discovery requests which were provided on November 18, 2022. (Decl. of Lee M. Moulin, Esq. attached to each motion, ¶¶ 4, 5.) On December 28, 2022, 35 days after responses were due, Defendant’s counsel email Plaintiffs’ counsel inquiring about the late responses. (Decl. of Lee M. Moulin, Esq. attached to each motion, ¶ 6.) As of January 10, 2023, Defendant’s counsel had not received any contact from Plaintiffs’ counsel nor any discovery responses. (Decl. of Lee M. Moulin, Esq. attached to each motion, ¶ 7.)

            Special Interrogatories, Set One, sent to both Plaintiffs has 16 special interrogatories which is under the statutory limit of 35. (Motions to Compel Form and Special Interrogatories, Exhibit A.) Similarly, the Requests for Admission, Set One, sent to both Plaintiffs has three requests which is under the statutory limit of 35 requests unrelated to the genuineness of documents. (Motions to Deem Requests for Admissions as Admitted, Exhibit A.)

            Because Plaintiffs have failed to respond to the discovery requests, Plaintiffs are compelled to respond to Form Interrogatories, Set One, Special Interrogatories, Set One, and Requests for Production of Documents, Set One, without objection, including objections based on privilege or on the protection for work product. (Code Civ. Proc., § 2031.300 subd. (a); Code Civ. Proc., § 2030.290, subd. (a).) For interrogatories, the failure to respond also waives any right to exercise the option to produce writings under Code of Civil Procedure section 2030.230. All requests for admission in Defendants’ Requests for Admission, Set One, are deemed admitted.

            Additionally, failure to respond to discovery requests is misuse of the discovery process subject to sanctions. (Code Civ. Proc., § 2023.010.) The court is required to award monetary sanctions against Plaintiffs unless Plaintiffs can show they “acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2031.300, subd. (c); Code Civ. Proc., § 2030.290, subd. (c).) The monetary sanction shall be in the amount of “the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct.” (Code Civ. Proc., § 2023.030.)

            Here, Plaintiffs have entirely failed to respond to the underlying discovery requests as well as the present Motions. Plaintiffs have not presented a substantial justification of circumstances making the imposition of these sanctions unjust.

            Defendant requests a total of $1,600.00 in sanctions. This request is comprised of four $60 filing fees, totaling $240.00, and 8 hours of attorney’s fees at a billing rate of $170.00 per hour for drafting, reviewing oppositions, and attending the hearing. Because Plaintiffs did not submit any oppositions, the Court will reduce the request for attorney’s fees by 3 hours. Defendant will be awarded $240.00 in filing fees and $850.00 in attorney’s fees for 5 hours of work at a billing rate of $170.00.

            The Court awards a total of $1,090.00 in sanctions against Plaintiffs and their counsel.

V.       CONCLUSION

            Defendant’s Motions are GRANTED. Plaintiffs are ordered to serve verified responses to Form Interrogatories, Set One; Special Interrogatories, Set One; and Requests for Production of Documents, Set One; all without objection, within 10 days. The Court deems all Requests for Admission in Defendant’s Requests for Admission, Set One, admitted. Sanctions of $1,090.00 are imposed against Plaintiffs and their counsel, jointly and severally, payable to Defendant within 10 days.

Dated: January 7, 2023                                                          _______________________

                                                                                                Judge of the Superior Court