Judge: John J. Kralik, Case: 21STCV16663, Date: 2022-08-04 Tentative Ruling

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Case Number: 21STCV16663    Hearing Date: August 4, 2022    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Patricia Hernandez (“Plaintiff”) alleges that she was subject to egregious elder abuse committed by Defendants Continuity Care Home Nurses, Inc. (“CCHN”) and Continuity Care Staffing Services, Inc. (“CCSS”), along with their owner and director, Defendant Maryann Sawoski.  Plaintiff alleges that CCHN and CCSS (collectively, “Continuity Care”) turned a blind eye as one of its employees, Carmen Magaña de Mendoza, repeatedly raped Plaintiff, an elderly and debilitated patient. 

The complaint, filed May 3, 2021, alleges causes of action for: (1) elder abuse by neglect, abandonment, and physical abuse; (2) financial elder abuse; (3) IIED; (4) professional negligence; (5) negligence; and (6) unlawful and fraudulent business practices.

On April 5, 2022, CCHN, CCSS, and Sawoski filed a first amended cross-complaint (“FAXC”) against Cross-Defendant Michael Hernandez for: (1) equitable indemnity; and (2) declaratory relief. 

B.     Motion on Calendar

On July 5, 2022, Plaintiff filed an ex parte application for issuance of order to show cause re: terminating sanctions or other sanctions against Defendants.

On July 5, 2022, Defendants filed an opposition to the ex parte application.   

On July 11, 2022, the court granted the ex parte application in part such that the application was scheduled for hearing on August 4, 2022. The court stated that the ex parte papers would serve as the motion papers and that any opposition or reply brief shall be served and filed pursuant to code.

On July 22, 2022, Defendants filed opposition papers to the motion on calendar.  The Court will consider this opposition as the operative opposition papers.

On July 28, 2022, Plaintiff filed reply papers.

EVIDENTIARY OBJECTIONS

            With the reply papers, Plaintiff objects to the entirety of Defense Counsel Bianca Bonjean’s declaration.  The objection to the declaration in its entirety is overruled. The specific objections to paragraphs 4 and 5 are overruled.  The objection to paragraph 9 is sustained.  

DISCUSSION

            Plaintiff moves for terminating sanctions, issue sanctions, and evidence sanctions against Defendants, as well as monetary sanctions.  Additionally, Plaintiff moves for an OSC re: why defense counsel should not be referred to the California State Bar for disciplinary proceedings.

            Plaintiff argues that Defendants and their counsel have abused the discovery process and made fraudulent efforts to extort and intimidate Plaintiff and her counsel into dropping this litigation.  Plaintiff argues that Defendants provided fabricated discovery responses on June 21, 2022, stating that Plaintiff has been calling Magana and leaving voicemails on June 18, 2022.  (Weintrop Decl., ¶5, Ex. 4 [CCHN’s SROG Responses at pp.21-22].)[1]  On June 22, 2022, Defendants then provided Plaintiff with an electronic production containing screenshots of a purported call from Plaintiff’s phone to Magana’s phone at 9:57 a.m. on June 18, 2022, an audio recording of the voicemail, and a translation of the voicemail.  (Id. at Exs. 5-9.)[2]  Defendants then served Plaintiff and counsel a letter asking they dismiss the case or face CCP § 128.7 sanctions.  (Id., Ex. 6.) 

Plaintiff argues that the purported June 18, 2022 call and voicemail are fake for several reasons.  First, Plaintiff provides her declaration stating that she was hospitalized on June 18, 2022 at the time the purported call took place, she was on a ventilator, she had a tracheostomy tube inserted in her throat, she did not have her voice box with her to speak, and she was unable to speak during her hospitalization.  (P. Hernandez Decl., ¶¶3-4.)[3]  Plaintiff states that she did not call Magana on June 18, 2022, has not called Magana since November 12, 2021, did not leave Magana a voicemail, and confirms that the voice on the voicemail is not her voice.  (Id., ¶¶5-6.)  At her deposition, she further testified on June 30, 2022 that she did not place any recent calls or leave a voicemail for Magana.  (Weintrop Decl., Ex. 16 [Pl.’s Depo. Transcript at p.14].)  Second, Plaintiff argues that a forensic analysis of her 818-519-6779 phone number demonstrated she did not make any calls to or leave voicemail for Magana.  Plaintiff provides the declaration of Tyler Guthrie, who assisted with forensic collection of calls and voicemail data from Plaintiff’s cell phone.  Mr. Guthrie states that based on his forensic analysis of Plaintiff’s phone, she did not place any phone calls or leave a voicemail to Magana’s phone on June 18, 2022 or at any other time from March 24, 2022 to the present.  (Guthrie Decl., ¶6.)  Instead, Mr. Guthrie’s forensic analysis shows that on June 18, 2022, she received a phone call from Magana’s phone number at 9:56 a.m., but Plaintiff did not answer the phone call.  (Id., ¶5.) 

 In opposition, Defendants argue that they served on Magana a translated copy of Plaintiff’s requests for productions included in Plaintiff’s notice of deposition and subpoena for production of documents on June 17, 2022.  They argue that Magana provided screenshots of her incoming and outgoing calls exchanged with Plaintiff’s phone number and a voicemail received from Plaintiff’s phone number on July 18, 2022 at 9:57 a.m., and thus they produced this information to Plaintiff.  (Bonjean Decl., ¶¶3-6.)  Defense counsel, Rada Feldman, states that she had previously attended Plaintiff’s depositions and could recognize her voice.  (Feldman Decl., ¶¶7-9; Opp. at p.6.)  Defendants argue that based on Magana’s production of photos of her phone’s call history, their recognition of Plaintiff’s voice on the voicemail, and the consistent nature of the content with Plaintiff and Magana’s past “romantic” relationship, they had no reason to believe the voicemail was fabricated.  (Opp. at p.6.)  Finally, Defendants present the declaration of their forensic expert, James D. Vaughn, who states that he conducted a forensic imaging of Magana’s phone, has determined that the incoming call from Magana’s phone date June 18, 2022 at 9:57 a.m. was an authentic call that has been stored in the phone and that the voicemail was also an authentic voicemail.  (Vaughn Decl., ¶¶13-14, 18.)  Mr. Vaughn states that the forensic imaging program used by Plaintiff can detect deleted calls only to the extent the information related to that deleted phone call is still available on the phone.  (Id., ¶16.)  Thus, Mr. Vaughn opines that to the extent Mr. Guthrie claims no calls were made by Plaintiff to Defendant is not entirely accurate as such call entries could have been deleted and removed.  (Id., ¶17.) (To resolve this, Defendants state that they have subpoenaed records from Magana’s T-Mobile/MetroPCS and AT&T for monthly call logs of the phones.  [Opp. at pp.14-15.])

In reply, Plaintiff argues that her forensic inspection of Magana’s phone conducted on July 20, 2022 shows that new calls were made from Plaintiff to Magana on June 25, 2022, July 9, 2022, and July 13, 2022—but Plaintiff’s counsel has been in possession of Plaintiff’s phone since June 22, 2022 and no one from counsel’s law firm has used Plaintiff’s phone to make phone calls.  (Weintrop Decl., ¶2.)  Plaintiff argues that the evidence is now indisputable that Magana is using spoofing technology to create the appearance of phone calls from Plaintiff to Magana’s phone.  (See Jerry Cohen Decl., ¶¶5-8.)  Plaintiff argues there is now another audio file on Magana’s phone dated July 13, 2022, purporting to be a voicemail from Plaintiff, which shows the clear use of a voice modifier to create the appearance of another voicemail from Plaintiff.  (See Weintrop Decl., ¶7, Ex. 1.)[4] Plaintiff’s counsel’s conclusions are drawn from circumstantial evidence that is not “indisputable.”

Based on the evidence provided by both parties, the Court finds that it would be inappropriate to impose sanctions against Defendants.  Defendants’ declarations and opposing papers show that Defendants CCHN, CCSS, and Ms. Sawoski and defense counsel had no intent to willfully abuse the discovery process. Rather, they believed they were complying with Plaintiff’s subpoena for the production of documents by producing this recently discovered evidence, and they did not have reason to believe that the incoming call to Magana and resulting voicemail on June 18, 2022 purportedly from Plaintiff was fabricated. They had screenshots from Magana showing that such phone calls had come in from Plaintiff’s phone, believed they heard her voice (whether they knew or did not know she was intubated at the hospital), and their forensic expert has opined that Magana did in fact receive a phone call from Plaintiff on June 18, 2022 and a voicemail.  As pointed out by Mr. Vaughn, it is possible that Plaintiff could have deleted traces of her outgoing calls to Magana on her phone.  Moreover, Plaintiff has given extensive deposition testimony during this time period. Although the Court has not yet reviewed the video tape, it appears that Ms. Hernandez has been able to talk, sometimes extensively, despite her condition on certain of those dates.

In addition, with the reply brief, Plaintiff argues that more evidence has come to light to show that Magana has used spoofing technology and is making the appearance of calls or using voice modifiers to make it seem like Plaintiff is leaving Magana voicemail.  The Court notes that Defendants have not had the opportunity to respond.  The parties are still gathering the circumstantial evidence that might be used to authenticate these phone calls. The conclusions drawn by both sets of attorneys are likely premature and do little to advance the ultimate considerations of the finders of fact.

The Court will not undertake a final weighing of the credibility of the parties, evidence, and facts regarding these phone calls, which are all in dispute at this time.  It is possible that Evidence Code § 402 hearings will be necessary prior to admission of some evidence, but that otherwise the jury will be the final judge of such issues. At the heart of this case are the interactions between Ms. Hernandez and Ms. Magana, aspects of which are known only to the two of them. Based on the record of this motion, both have given shifting and inconsistent versions of these interactions, and it is not surprising that their testimony would also deviate on the matter of these recent phone calls. Imposing sanctions—whether terminating, issue, evidence, or monetary—is not merited by the gathering of direct and circumstantial evidence portrayed by the moving and responsive papers.

The motion for sanctions is denied.

CONCLUSION AND ORDER 

Plaintiff Patricia Hernandez’s motion for terminating or other sanctions against Defendants is denied.  Plaintiff’s additional request to have defense counsel reported to the California State Bar for disciplinary proceedings is also denied. Counsel for both sides should be assured that the colorful vocabulary and inflated accusations regarding their counterparts does not influence decisions of the Court in either direction. Indeed, it makes a poor impression. It is up to the attorneys themselves to conduct themselves appropriately in Court proceedings. The State Bar will not be of much help in that regard.

Plaintiff shall provide notice of this order.