Judge: H. Jay Ford, III, Case: BC712013, Date: 2022-09-01 Tentative Ruling

Case Number: BC712013    Hearing Date: September 1, 2022    Dept: O

Case Name:               Smith v. McLucas, et al.

SUBJECT:                 MOTION FOR TERMINATING SANCTIONS

MOVING PARTY:   Defendants Bruce B. McLucas M.D., Bruce B. McLucas, MD, a professional corporation and Fibroid Treatment Collective

RESP. PARTY:         Plaintiff Nailah Smith

TENTATIVE RULING

             Defendants Bruce B. McLucas M.D., Bruce B. McLucas, MD and Fibroid Treatment Collective’s Motion for Terminating Sanctions is DENIED.  No lesser sanction for discovery abuse was requested.

I.  Applicable Law

Terminating sanctions should not be imposed lightly and a graduated imposition of

sanctions should be used if possible. See Mileikowsky v. Tenet Healthsystem (2005) 128

Cal.App.4th 262, 279-280 (decision to impose terminating sanctions should not be made lightly

but such sanctions are justified in cases of repeated discovery abuse and evidence that lesser

sanctions will be ineffectual); Thomas v. Luong (1986) 187 Cal.App.3d 76, 81–82; see also

Morgan v. Ransom (1979) 95 Cal.App.3d 664, 669 (incarcerated, indigent, pro per plaintiff's

delay in serving responses insufficient to justify imposition of terminating sanctions where no

prejudice demonstrated). Moreover, discovery sanctions are not intended to punish but to

accomplish discovery. See Newland v. Supr. Ct. (1995) 40 Cal.App.4th 608, 613.

            “The discovery statutes…evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.  Although in extreme cases a court has the authority to order a terminating sanction as a first measure, a terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective.”  Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604. 

II.  Terminating sanctions are unwarranted in light of Plaintiff’s ultimate compliance with the discovery requests

            Defendants argue the following instances of discovery abuse committed by Plaintiff:

(1) Plaintiff failed to timely respond to discovery propounded on 3-12-20 (“3-12-20 Discovery”), despite being granted two extensions.

(2) After responses were served to the 3-12-20 Discovery, further responses were required and parties entered into a stipulation requiring further responses by 11-16-20, which Plaintiff failed comply with until 12-23-20.

(3) On 6-9-21, the Court held an IDC regarding Defendant’s 1-15-21 Discovery.  Plaintiff stipulated during the IDC to provide further responses to Defendant McLucas’s Form Interrogatories (set two), RFAs (set two) and RFP (set two) by 6-24-2. Plaintiff did not comply until another IDC was held on 6-24-21 and further responses were served on 7-8-21. 

(4)  On 11-2-21, Defendant propounded Special Interrogatories (Set Three), Request for Admission (Set Three), RFPs (Set Three) and Form Interrogatories (Set Three)(“11-2-21 Discovery”), as the parties allegedly stipulated.  Plaintiff responded to the 11-2-21 Discovery with objections only. 

(5)  On 3-31-22, parties stipulated to reopen discovery and allow Defendants to propound Special Interrogatories (Set Two), Special Interrogatories (Set Three), RFPs (Set Three), RFAs (Set Three) and Form Interrogatories (Set Three) (“3-31-22 Discovery”).  Plaintiff responded to the 3-31-22 Discovery with objections only despite having stipulated to reopening discovery for the 3-31-22 Discovery.

(6)  Plaintiff repeatedly refused to appear for deposition as repeatedly noticed and finally appeared for deposition on 8-19-21, more than a year after the first deposition notice was served and after the discovery cut off.

            Based on these identified instances of discovery abuse, terminating sanctions are not warranted.  Plaintiff ultimately complied with the discovery identified throughout the litigation.  Plaintiff provided responses throughout the litigation. Unlike the plaintiff in Mileikowsky, her compliance was not “only” due to the “threat of terminating sanctions.”  Mileikowsky, supra, 128 Cal.App.4^th at 280. 

            To the extent Plaintiff served untimely responses or asserted meritless objections, Defendant could have requested monetary sanctions or other lesser sanctions.  Discovery sanctions are not intended to be punitive and should only be imposed to accomplish discovery.  See Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604. 

            The parties’ stipulations are tantamount to discovery orders for purposes of sanctions, particularly since a number of them were arrived at during an IDC with the Court.  “The issue becomes whether the stipulation can be seen as tantamount to the requisite order. We see no reason why it cannot.”  Mileikowsky, supra, 128 Cal.App.4^th at 278–279.  However, the mere fact that Plaintiff committed discovery abuse does not automatically entitle McLucas to terminating sanctions.  Again, McLucas could have requested monetary sanctions or issue sanctions in response to each instance of delayed discovery responses and/or meritless objections.

            Plaintiff adopts the ridiculous position that a stipulation to propound discovery does not amount to a discovery order requiring a response.  If the parties stipulated to allow for discovery, Plaintiff was required to respond as she was required to respond to any legitimately propounded discovery under the Code.  To interpret the stipulation otherwise would be illogical.  There would be no reason stipulate to discovery if Plaintiff was not required to answer.  A failure to answer entirely would qualify as discovery abuse under CCP §2023.010. 

            However, Plaintiff ultimately responded to all stipulated discovery, although untimely and with objections only.  On this point, the Court agrees with Plaintiff.  Plaintiff was entitled to assert objections to discovery and she did not waive that right in the stipulations.  If her objections were meritless, Defendant McLucas was entitled under the Code to move for further response and obtain monetary, issue, or evidentiary sanctions against Plaintiff. 

            Defendant McLucas’s Motion for Terminating Sanctions is DENIED.  

  Case Name:             Smith v. McLucas, et al.

SUBJECT:                 MOTION TO COMPEL FURTHER RESPONSES TO RFPs (Set Three)

MOVING PARTY:   Defendants Bruce B. McLucas M.D., Bruce B. McLucas, MD, a professional corporation, and Fibroid Treatment Collective

RESP. PARTY:         Plaintiff Nailah Smith

TENTATIVE RULING

             Defendants Bruce B. McLucas M.D., Bruce B. McLucas, MD and Fibroid Treatment Collective’s Motion to Compel Further Responses to RFPs (Set Three) is GRANTED.  Plaintiff is ordered to serve further responses without objections within 5 days.  Defendants failed to request any monetary sanctions. 

            Defendants seek responses to 3 RFPs, which seek documentation pertaining to Plaintiff’s Toradol prescription.  Plaintiff responded only with objections.  Defendants argue Plaintiff stipulated to allow Defendants to propound these interrogatories.  Despite the stipulation, Plaintiff objected to the discovery on grounds that the declaration of necessity was inadequate. 

            In response, Plaintiff argues she never stipulated to respond to the discovery, nor did she ever stipulate to waive objections. Plaintiff argues Defendants never met and conferred in good faith prior to filing this motion.  Plaintiff maintains the discovery requests cover topics already covered during deposition and in prior discovery.  Plaintiff argues Defendants have already obtained her full medical records and the discovery is unnecessary and duplicative.

            Plaintiff’s objections are meritless.  Plaintiff also fails to identify precisely what prior discovery responses would have responded to the subject RFPs.  She fails to establish that the discovery requests are improperly duplicative.  

 Case Name:              Smith
v. McLucas, et al.

SUBJECT:                 MOTION TO COMPEL FURTHER
RESPONSES TO SPECIAL INTERROGATORIES (SET TWO)

MOVING
PARTY:   Defendants Bruce B. McLucas
M.D., Bruce B. McLucas, MD, a professional corporation and Fibroid Treatment
Collective

RESP.
PARTY:         Plaintiff Nailah Smith

TENTATIVE
RULING

             Defendants Bruce B. McLucas M.D., Bruce B.
McLucas, MD and Fibroid Treatment Collective’s Motion to Compel Further
Responses to Special Interrogatories (Set Two) is GRANTED. Plaintiff is ordered
to serve further responses without objections within 5 days.  Defendants did not request any monetary
sanctions in connection with the motion.

            Defendants
seek responses to 16 interrogatories, which seek information regarding Toradol
and Ibuprofen taken by Plaintiff from 6-30-17 to 7-4-17.  Plaintiff responded only with
objections.  Defendants argue Plaintiff
stipulated to allow Defendants to propound these interrogatories.  Despite the stipulation, Plaintiff objected
to the discovery on grounds that the declaration of necessity was inadequate. 

            In
response, Plaintiff argues she never stipulated to respond to the discovery,
nor did she ever stipulate to waive objections. Plaintiff argues Defendants
never met and conferred in good faith prior to filing this motion.  Plaintiff maintains the discovery requests
cover topics already covered during deposition and in prior discovery.  Plaintiff argues Defendants have already
obtained her full medical records and the discovery is unnecessary and
duplicative.

            Plaintiff’s
objections are meritless.  Plaintiff
fails to identify precisely what prior discovery responses would have responded
to the subject Special Interrogatories. 
She fails to establish that the discovery requests are improperly
duplicative.