Judge Joel L. Lofton, Case Number: 21STCV30716, Date: 2024-07-29 Tentative Ruling

Judge: Joel L. Lofton, Case: 21STCV30716, Date: 2024-07-29 Tentative Ruling

Case Number: 21STCV30716 Hearing Date: July 29, 2024 Dept: X

Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE: July 29, 2024 TRIAL DATE: None Set

CASE: LAMESHA SIMPSON v. HANFU LEE, D.D.S., HANFU LEE DDS, and DOES 1 through 20, inclusive.

CASE NO.: 21STCV30716

(1) MOTION FOR LEAVE RE SUBSEQUENT DEPOSITION OF PLAINTIFF

(2) MOTION TO COMPEL FURTHER RESPONSE TO REQUEST FOR ADMISSIONS, SET TWO, AND REQUEST FOR MONETARY SANCTIONS

(3) MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, SET TWO, AND REQUEST FOR MONETARY SANCTIONS

(4) MOTION TO COMPEL FURTHER RESPONSE TO SPECIAL INTERROGATORIES, SET THREE, AND REQUEST FOR MONETARY SANCTIONS

(5) MOTION TO COMPEL FURTHER RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET TWO, AND REQUEST FOR MONETARY SANCTIONS

MOVING PARTIES: (1) Defendants, Hanfu Lee, D.D.S. (an individual) and Hanfu Lee DDS (a professional corporation)

(2)-(5) Defendant Hanfu Lee, D.D.S.

RESPONDING PARTY: (1)-(5) Plaintiff Lamesha Simpson

SERVICE: (1) Filed April 9, 2024

(2)-(5) Filed March 6, 2024

RELIEFS REQUESTED

(1) An order granting Defendants Hanfu Lee, D.D.S. and Hanfu Lee DDS leave to conduct a subsequent deposition of Plaintiff Lamesha Simpson at a date/time mutually agreed to by the parties.

(2) An order compelling Plaintiff Lamesha Simpson to serve verified, further responses to Defendant Hanfu Lee, D.D.S.’ Request for Admissions, Set Two, Nos. 11, 12, 13, 14, and 15; and awarding monetary sanctions of $1,685.00 in favor of Defendant Hanfu Lee, D.D.S.

(3) An order compelling Plaintiff Lamesha Simpson to serve verified, further responses to Defendant HANFUL LEE, D.D.S.’ Form Interrogatories, Set Two, Nos. 17.1; and awarding monetary sanctions of $2,060.00 in favor of Defendant Hanfu Lee, D.D.S.

(4) An order compelling Plaintiff Lamesha Simpson to serve verified, further responses to Defendant Hanfu Lee, D.D.S.’ Special Interrogatories, Set Three, Nos. 47, 48, 49, 50, 51, 52, 53, 54, 55, and 59; and awarding monetary sanctions of $2,060.00 in favor of Defendant Hanfu Lee, D.D.S.

(5) An order compelling Plaintiff Lamesha Simpson to serve verified, further responses and produce documents in response to Defendant’s Request for Production of Documents, Set Two, Nos. 38, 39, 40, and 41; and awarding monetary sanctions of $2,060.00 in favor of Defendant Hanfu Lee, D.D.S.

BACKGROUND

This is a dental malpractice action. Plaintiff Lamesha Simpson (“Plaintiff”) filed this action on August 19, 2021, against Hanfu Lee, D.D.S. (an individual), Hanfu Lee DDS (a Professional Corporation), and Does 1 through 20, inclusive, asserting causes of action for (1) professional negligence and (2) lack of informed consent. The Complaint alleges that Hanfu Lee is a dentist and that Hanfu Lee DDS is in the business of providing dental services through its agents and employees. Before and/or on September 3, 2020, Plaintiff was a patient of the defendants. The defendants breached their duty to Plaintiff when they, among other things, failed to properly treat her and inform her of all dangers involved in their service, care, and/or treatment, causing her to sustain injuries.

On March 6, 2024, Hanfu Lee, D.D.S. (“Dr. Lee”) filed the instant motions to compel Plaintiff’s further responses to his Requests for Production of Documents, Set Two (“RPD Motion”), Special Interrogatories, Set Three (“SROG Motion”), Form Interrogatories, Set Two (“FROG Motion”), and Request for Admissions, Set Two (“RFA Motion”).

On April 9, 2024, Hanfu Lee, D.D.S. and Hanfu Lee DDS (collectively, “Defendants”) filed the instant motion to compel a subsequent deposition of Plaintiff (the “Deposition Motion”).

On April 19, 2024, Plaintiff filed her oppositions to the RFA and FROG Motions.

On April 23, 2024, Plaintiff filed her opposition to the RPD Motion.

On April 25, 2024, Plaintiff filed her opposition to the SROG Motion.

On April 25, 2024, Dr. Lee filed replies in support of the RFA and FROG Motions.

On April 29, 2024, Dr. Lee filed replies in support of the RPD and SROG Motions.

On July 15, 2024, Plaintiff filed her opposition to the Deposition Motion.

On July 18, 2024, Defendants filed supplemental briefs in support of their Deposition, RPD, SROG, FROG, and RFA Motions.

On July 24, 2024, Defendants filed their reply brief in support of the Deposition Motion.

TENTATIVE RULINGS

The MOTION FOR LEAVE RE SUBSEQUENT DEPOSITION OF PLAINTIFF is GRANTED IN PART and DENIED IN PART as follows. The request to compel a subsequent deposition of Plaintiff to ask for information regarding the source of Dr. Berger’s payment is DENIED. The request to compel a subsequent deposition of Plaintiff to ask for information regarding past and future treatment by Dr. Chang is GRANTED. The parties are to meet and confer, within 30 days of this ruling regarding the date, time, and location of the deposition.

The MOTIONS TO COMPEL FURTHER RESPONSES to Request for Admissions, Set Two, Form Interrogatories, Special Interrogatories, and Request for Production of Documents are DENIED.

MOTION TO COMPEL SUBSEQUENT DEPOSITION

Defendants move for an order granting them leave to conduct a subsequent deposition of Plaintiff at a date or time mutually agreed to by the parties. Plaintiff opposes the motion.

A. Legal Standard

“Once any party has taken the deposition of any natural person, including that of a party to the action, neither the party who gave, nor any other party who has been served with a deposition notice pursuant to 2025.240 may take a subsequent deposition of that deponent.” (Code Civ. Proc., § 2025.610, subd. (a).)

“Notwithstanding subdivision (a) [above], for good cause shown, the court may grant leave to take a subsequent deposition, and the parties, with the consent of any deponent who is not a party, may stipulate that a subsequent deposition be taken.” (Code Civ. Proc., § 2025.610, subd. (b).)

“It has been held that where good cause is required, the showing must be liberally construed; the moving party is entitled to discovery upon a showing that the information sought is necessary for the preparation of its case, and the request may be granted without abuse of the rights of the adversary.” (Bolles v. Superior Court (1971) 15 Cal.App.3d 962, 963.)

B. Deposition at Issue

Defendants argue the following in support of their motion to take another deposition of Plaintiff. This action arises from a tooth extraction Defendants conducted on Plaintiff. Plaintiff is claiming $185,876.94 in special damages relating to care and treatment she received and/or will receive from neurologist Marisa Chang, M.D. (“Dr. Chang”) and Joel Berger, D.D.S., M.D. (“Dr. Berger”). Defendants seek a second deposition of Plaintiff because Dr. Chang started treating Plaintiff after Defendants had already taken Plaintiff’s first deposition on May 1, 2023, and, therefore, Defendants did not have the opportunity to question Plaintiff regarding that treatment. In addition, during meet and confer process on March 12, 2024, Plaintiff produced a copy of a check written by her father to Dr. Berger, calling into question whether the treatment she received from Dr. Berger was a gift or a loan that Plaintiff agreed to pay back.

1. Whether There is Good Cause to Compel Plaintiff’s Deposition to Ask Questions Regarding the Source of Payments Made to Dr. Berger

Defendants argue that Plaintiff gave different answers to the question regarding the payment to Dr. Berger. Specifically, Plaintiff testified under oath during her deposition that she had paid Dr. Berger “out of pocket.” Then in verified responses to Defendants’ request for production of documents, Plaintiff produced a check written by Plaintiff’s father to Dr. Berger for the full amount paid. Now, Plaintiff’s counsel states that he loaned that amount to Plaintiff and that communications regarding that loan are protected by attorney-client privilege and work product doctrine.

In opposition, Plaintiff correctly argues that whether any payments have been made by Plaintiff’s father, attorney, or anyone else to Dr. Berger makes no difference regarding the amount of expenses Plaintiff incurred as damages because the collateral source rule prevents the reduction of damages when a third party pays for some or all of the Plaintiff’s financial loss.

To the extent Plaintiff is claiming the amount she paid to Dr. Berger as special damages, that amount is relevant to this case. (Licudine v. Cedars-Sinai Medical Center (2016) 3 Cal.App.5th 881, 892 [“special damages include medical and related expenses …”]; Bermudez v. Ciolek (2015) 237 Cal.App.4th 1311, 1337 [“‘Damages for past medical expenses are limited to the lesser of (1) the amount paid or incurred for past medical expenses and (2) the reasonable value of the services.’ [Citation.] Like insured plaintiffs, uninsured plaintiffs must introduce substantial evidence of both the amount incurred and the reasonable value of the services. The amount incurred sets a cap on medical damages”].)

To the extent Defendants are only seeking the source of the payment to Dr. Berger to prove that it was not truly an expense (e.g., because it was a gift), the Court agrees with Plaintiff that information is irrelevant and such evidence will be barred by the collateral source rule. (Stokes v. Muschinske (2019) 34 Cal.App.5th 45, 55 [“The collateral source rule generally provides that ‘“if an injured party receives some compensation for his injuries from a source wholly independent of the tortfeasor, such payment should not be deducted from the damages which the plaintiff would otherwise collect from the tortfeasor.”’ [Citation.] … [Citations] [emphasis added]. ¶ …. “‘Because a collateral payment may not be used to reduce recoverable damages, evidence of such a payment is inadmissible for that purpose. Even if relevant on another issue (for example, to support a defense claim of malingering), under Evidence Code section 352 the probative value of a collateral payment must be “carefully weigh[ed] ... against the inevitable prejudicial impact such evidence is likely to have on the jury’s deliberations.”’ [Citations]” (emphasis added)].) Defendants have not explained why they would seek the source of payment to Dr. Berger if not to prove that Plaintiff is not entitled to those damages. In other words, they have not shown the relevance of the “source” of the payment.

To the extent Defendants are concerned that Plaintiff’s counsel violated California Rules of Professional Conduct by loaning money to Plaintiff, that concern is irrelevant to the instant motion or dispute.

Accordingly, the request to compel a subsequent deposition of Plaintiff to ask for information regarding the source of Dr. Berger’s payment is denied.

2. Whether There is Good Cause to Compel Plaintiff’s Deposition to Ask Questions Regarding the Treatment by Dr. Chang

Notwithstanding the above ruling, the Court finds good cause to compel Plaintiff’s subsequent deposition to allow Defendants to ask questions regarding the treatment she received from Dr. Chang. Plaintiff argues that it is common for plaintiffs in personal injury actions to seek further treatment for their injuries, and the Legislature did not provide an exception for personal injury cases when it adopted Code of Civil Procedure section 2025.610. In addition, Plaintiff has provided, in her written discovery responses, the information Defendants need about the amounts of special damages pertaining to future care and treatment provided by Dr. Chang. However, Section 2025.610 allows a Court to issue an order to allow a subsequent deposition upon showing good cause. Here, the Court does not anticipate granting the Defendants’ request for a deposition every time Plaintiff obtains treatment with Dr. Chang. However, since Plaintiff began her treatment with Dr. Chang after her first deposition, Defendant has shown good cause to compel deposition regarding past and future treatment by Dr. Chang. Further, as stated above, the fact that Plaintiff provided written discovery is not grounds for denying a party deposition.

For the reasons set forth above, the Deposition Motion is GRANTED IN PART and DENIED IN PART as follows. The request to compel a subsequent deposition of Plaintiff to ask for information regarding the source of Dr. Berger’s payment is DENIED. The request to compel a subsequent deposition of Plaintiff to ask for information regarding past and future treatment by Dr. Chang is GRANTED. The parties are to meet and confer, within 30 days of this ruling, regarding the deposition’s date, time, and location.

MOTIONS TO COMPEL FURTHER RESPONSES TO DISCOVERY REQUESTS

A. Legal Standard

1. Requests for Admission

“On receipt of a response to requests for admissions, the party requesting admissions may move for an order compelling a further response if that party deems that either or both of the following apply: ¶ (1) An answer to a particular request is evasive or incomplete. ¶ (2) An objection to a particular request is without merit or too general.” (Code Civ. Proc., § 2033.290, subd. (a).)

2. Interrogatories

“On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: ¶ (1) An answer to a particular interrogatory is evasive or incomplete. ¶ (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate. ¶ (3) An objection to an interrogatory is without merit or too general.” (Code Civ. Proc., § 2030.300, subd. (a).)

3. Demand for Production

“On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: ¶ (1) A statement of compliance with the demand is incomplete. ¶ (2) A representation of inability to comply is inadequate, incomplete, or evasive. ¶ (3) An objection in the response is without merit or too general.” (Code Civ. Proc., § 2031.310, subd. (a).) “The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).)

B. Timeliness

Motions to compel further responses to interrogatories, requests for production of documents, and requests for admission must be brought within 45 days of service of the verified response, supplemental verified response, or on a date to which the propounding and responding parties have agreed to in writing; otherwise, the propounding party waives the right to compel further responses. (Code Civ. Proc., §§ 2030.300, subd. (c); 2031.310, subd. (c); 2033.290, subd. (c).)

The motions to compel further responses to Dr. Lee’s RFAs, FROGs, SROGs, and RPDs are timely as they were filed on March 6, 2024, within 45 days of Plaintiff serving her objections and responses on January 31, 2024. (Declarations of Joelle Foxwell (“Foxwell Decl.”), ¶ 7.)

C. Meet and Confer

The instant motions to compel further responses must be accompanied by a meet and confer declaration. (Code Civ. Proc., §§ 2030.300, subd. (b)(1); 2031.310, subd. (b)(2); 2033.290, subd. (b)(1).)

The Court finds that Dr. Lee has satisfied the meet and confer requirement. (Motions, Foxwell Decl., ¶¶ 8-11.)

D. Separate Statement

Dr. Lee has filed a separate statement with each motion as required. (Cal. Rules of Court, rule 3.1345(a)(1), (2), and (3) [requiring motions to compel further responses to requests for admission, interrogatories, and demand for inspection of documents to be accompanied by a separate statement].)

E. RFA Motion

Dr. Lee moves for an order compelling Plaintiff to serve verified, further responses to RFA Nos. 11, 12, 13, 14, and 15, and imposing sanctions of $1,685.00 against Plaintiff.

The rest of the RFAs asked Plaintiff the following.

· RFA No. 11: “Admit that your (i.e., Plaintiff) attorneys of record (Levy Law) including any agent acting on their behalf paid money to Joel Berger, D.D.S., M.D. (or his medical practice) for professional medical services Dr. Berger provided you.”

· RFA No. 12: “Admit that your attorneys of record (Levy Law) including any agent acting on their behalf have agreed to pay money to Joel Berger, D.D.S., M.D. (or his medical practice) for professional medical services Dr. Berger provided you.”

· RFA No. 13: “Admit that your attorneys of record (Levy Law) including any agent acting on their behalf negotiated the amount of professional medical services fees charged to you by Joel Berger, D.D.S., M.D. (or his medical practice).”

· RFA No. 14: “Admit that you have incurred no out of pocket costs for any treatment from Joel Berger, D.D.S., M.D.”

· RFA No. 15: “Admit that you have incurred no out-of-pocket costs for any treatment from Marisa Chang, M.D.”

Plaintiff responded to all the RFAs as follows: “Objection. Irrelevant, invasion of privacy and calls for attorney work product and information protected by the attorney-client privilege.”

However, Plaintiff argues in her opposition, and Dr. Lee admits in his reply that Plaintiff has provided sufficient further responses to RFA Nos. 14 and 15.

Therefore, the request to compel further response to RFA Nos. 14 and 15 is DENIED as moot.

Further, in light of the Court’s ruling above in the Deposition Motion regarding the source of payments to Dr. Berger, the request to compel further response to RFA Nos. 11, 12, and 13 is denied. The request for sanctions is also denied.

Accordingly, the RFA Motion is DENIED in its entirety.

F. FROG Motion

Dr. Lee also moves for an order compelling Plaintiff to serve verified, further responses to his FROG Nos. 17.1, and imposing sanctions of $2,060.00 against Plaintiff.

The interrogatory asked Plaintiff: “Is your response to each request for admission served with these interrogatories an unqualified admission? If not, for each response that is not an unqualified admission:

(a) state the number of the request;

(b) state all facts upon which you base your response;

(d) those facts; and

(e) identify all DOCUMENTS and other tangible things that support your response and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing.”

For RFAs Nos. 11, 12, and 13, Plaintiff responded to FROG No. 17.1, subparts (b), (c), and (d) as follows: “Objection. Irrelevant, invasion of the right of privacy and calls for attorney work product and information protected by attorney-client privilege.”

As shown above, RFA Nos. 14 and 15 asked Plaintiff to admit that she incurred no out-of-pocket costs for any treatment from Drs. Berger and Chang.

In light of the Court’s discussion above regarding the collateral source rule, the request to compel further response to FROG No. 17.1 is denied. The request for sanctions is also denied.

Accordingly, the FROG Motion is DENIED in its entirety.

G. SROG Motion

Dr. Lee also moves for an order compelling Plaintiff to serve verified, further responses to his SROG Nos. 47, 48, 49, 50, 51, 52, 53, 54, 55, and 59, and imposing monetary sanctions of $2,060.00 against Plaintiff.

· SROG No. 47: “Did your (i.e., Plaintiff) attorneys of record (Levy Law) or anyone acting on their behalf pay any portion of your billed charges from Joel Berger, D.D.S., M.D. (or his medical practice) for professional medical services rendered?”

· SROG No. 48: “If your attorneys of record (Levy Law) or anyone acting on their behalf paid any portion of your billed charges from Joel Berger, D.D.S., M.D. (or his medical practice) for professional medical services rendered, state the amount paid.”

· SROG No. 49: “If your attorneys of record (Levy Law) or anyone acting on their behalf paid any portion of your billed charges from Joel Berger, D.D.S., M.D. (or his medical practice) for professional medical services rendered, state the date payment was made.”

· SROG No. 50: “Have your attorneys of record (Levy Law) or anyone acting on their behalf entered into an agreement to pay any portion of your billed charges from Joel Berger, D.D.S., M.D. (or his medical practice) for professional medical services rendered?”

· SROG No. 51: “If your attorneys of record (Levy Law) or anyone acting on their behalf have entered into an agreement to pay any portion of your billed charges from Joel Berger, D.D.S., M.D. (or his medical practice) for professional medical services, state the amount of payment they have agreed to pay.”

· SROG No. 52: “Were your attorneys of record (Levy Law) or anyone acting on their behalf involved in negotiating the amount of professional medical services fees charged to you by Joel Berger, D.D.S., M.D. (or his medical practice)?”

· SROG No. 53: “If your attorneys of record (Levy Law) or anyone acting on their behalf were involved in negotiating the amount of professional medical services fees charged to you by Joel Berger, D.D.S., M.D. (or his medical practice), identify any and all correspondence of any type (including text messages, emails, letters, phone calls, etc.) between your attorneys of record or anyone acting on their behalf and Dr. Berger and his medical office.”

· SROG No. 54: “Identify (by name, address, and telephone number) the person most knowledgeable concerning any payments made by your attorneys of record (Levy Law) or anyone acting on their behalf to Joel Berger, D.D.S., M.D. (or his medical practice) for professional medical services Dr. Berger provided you.”

· SROG No. 55: “State how you paid Joel Berger, D.D.S., M.D. for all professional medical services he (or his office) has provided you.”

· SROG No. 59: “State the total amount that you have paid Joel Berger, D.D.S., M.D. for any and all treatment he (or his office) has provided you.”

Plaintiff responded as follows to all the SROGs above: “Objection. Irrelevant, invasion of the right of privacy and calls for attorney work product and information protected by the attorney-client privilege.”

In light of the Court’s discussion above regarding the collateral source rule, the request to compel further response to SROG Nos. 47, 48, 49, 50, 51, 52, 53, 54, 55, and 59, and to impose is also denied.

Accordingly, the SROG Motion is DENIED in its entirety.

H. RPD Motion

Dr. Lee moves for an order compelling Plaintiff to serve verified, further responses and produce documents in response to RPD Nos. 38, 39, 40, and 41 and imposing sanctions of $2,060.00 against Plaintiff.

· RPD No. 38: “All documents evidencing monies paid to Joel Berger, D.D.S., M.D. for treatment of injuries allegedly caused by the Propounding Party’s treatment of Responding Party.”

· RPD No. 39: “All documents evidencing monies paid to Marisa Chang, M.D. for treatment of injuries allegedly caused by Propounding Party’s treatment of Responding Party.”

· RPD No. 40: “All documents substantiating YOUR responses to Propounding Party’s Special Interrogatories, Set Three.”

· RPD No. 41: “All documents substantiating YOUR responses to Propounding Party’s Form Interrogatories, Set Two.”

Plaintiff objected to the RPDs, arguing that they are irrelevant, seek to invade her right to privacy, and calls for attorney work product and information protected by the attorney-client privilege.

Without waiving those objections, in response to RPD No. 38, Plaintiff referred Dr. Lee to a document she previously produced in response to Defendants’ production demands: Dr. Berger (SIMPSON).pdf at p. 27.

In response to RPD No. 39, Plaintiff referred Dr. Lee to Dr. Chang (SIMPSON).pdf, p. 1.

For RPD Nos. 40 and 41, Plaintiff referred Dr. Lee to documents attached to the responses and documents and materials previously provided in response to the propounding Defendants’ production demands.

The Court would have been inclined to compel further response to RPD No. 38 if Plaintiff only responded with objections to the RPDs. Indeed, documents evidencing the amount (not merely the source) of payment to Drs. Berger and Chang are relevant since Plaintiff is claiming treatment costs from those doctors as special damages. To the extent Plaintiff believed some documents were protected by the attorney-client privilege or work product doctrine, the Court would have required her to serve a privilege log. (Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1130 [“A privilege log must identify with particularity each document the responding party claims is protected from disclosure by a privilege and provide sufficient factual information for the propounding party and court to evaluate whether the claim has merit. [Citations.] The precise information required for an adequate privilege log will vary from case to case based on the privileges asserted and the underlying circumstances. In general, however, a privilege log typically should provide the identity and capacity of all individuals who authored, sent, or received each allegedly privileged document, the document’s date, a brief description of the document and its contents or subject matter sufficient to determine whether the privilege applies, and the precise privilege or protection asserted”].)

However, Dr. Lee has failed to explain why the alternative responses Plaintiff has provided (e.g., referring the dentist to specific documents) are still insufficient (e.g., because they do not show the amount paid to Drs. Berger and Chang).

Accordingly, the RPD Motion is DENIED in its entirety.

CONCLUSION

The MOTION FOR LEAVE RE SUBSEQUENT DEPOSITION OF PLAINTIFF is GRANTED IN PART and DENIED IN PART as follows. The request to compel a subsequent deposition of Plaintiff to ask for information regarding the source of Dr. Berger’s payment is DENIED. The request to compel a subsequent deposition of Plaintiff to ask for information regarding past and future treatment by Dr. Chang is GRANTED. The parties are to meet and confer, within 30 days of this ruling, regarding the deposition’s date, time, and location.

The MOTIONS TO COMPEL FURTHER RESPONSES to Request for Admissions, Set Two, Form Interrogatories, Special Interrogatories, and Request for Production of Documents are DENIED.

Dated: July 29, 2024 ___________________________________

Joel L. Lofton

Judge of the Superior Court