Judge Kerry Bensinger, Case 21STCV10790 2023-04-17 Tentative Ruling

On March 19, 2021, Plaintiff Jhon Gonzalez-Guerrero filed this action against Defendant Allen D. Ye for injuries arising from a June 6, 2019 motor vehicle accident.

Defendant retained expert Dr. Charles D. Rosen, a spine surgeon, to examine Plaintiff during a defense medical exam on May 5, 2022. On October 31, 2022, Plaintiff deposed Dr. Rosen. At the deposition, Dr. Rosen refused to produce requested documents, which includes, but is not limited to, Dr. Rosen’s file for the case, the photos used by Dr. Rosen in connection with this case, documented communications between the deponent expert and defense counsel regarding the case, and documents that reflect the cases Dr. Rosen worked on as an expert.

Dr. Rosen is represented by separate counsel. On two occasions, Plaintiff’s counsel met and conferred with Dr. Rosen’s counsel requesting production of documents. Counsel for Dr. Rosen refused each time.

On February 17, 2023, Plaintiff filed this motion for an order compelling Dr. Rosen to further produce documents and to submit to another deposition. The Court heard the motion on March 3, 2023. The Court found service of the motion on Dr. Rosen was defective and ordered Plaintiff to personally serve Dr. Charles Rosen with notice of this motion and all moving papers. Plaintiff was ordered to file proof of service. As to the merits of the motion, the Court ordered the parties to meet and confer, and to prepare a joint statement in three columns identifying 1) the specific documents at issue; 2) the objection to production; and 3) plaintiff’s response. The Court ordered any non-objectionable responsive documents to be produced within 10 days (for example the patient file reviewed by Dr. Rosen and all documents upon which Dr. Rosen relied in forming his opinion or in preparation of the deposition).

Assuming Plaintiff completed personal service, Plaintiff was ordered to submit any moving papers, along with the joint statement, no later than 15 court days before the hearing.

Under Code of Civil Procedure section 2031.310, parties may move for a further response to requests for production of documents where a statement of compliance with the demand is incomplete, a representation of inability to comply is inadequate, incomplete, or evasive, or where an objection is without merit or too general.

Notice of the motions must be given within 45 days of service of the verified response, otherwise, the propounding party waives any right to compel a further response. (Code Civ. Proc., § 2030.300, subd. (c); Code Civ. Proc., § 2031.310, subd. (c).) The motions must also be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2030.300, subd. (b); Code Civ. Proc., § 2031.310, subd. (b).)

“A written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.” (Cal. Rules of Court, rule 3.1346.)

Code of Civil Procedure section 2023.030 is a general statute authorizing the Court to impose discovery sanctions for “misuse of the discovery process,” which includes (without limitation) a variety of conduct such as: making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to discovery; and unsuccessfully and without substantial justification making or opposing a motion to compel or limit discovery. (Code Civ. Proc., §§ 2023.010, 2031.310.)

If sanctions are sought, Code of Civil Procedure section 2023.040 requires that the notice specify the identity of the person against whom sanctions are sought and the type of sanction requested, that the motion be supported in the points and authorities, and the facts be set forth in a declaration supporting the amount of any monetary sanction.

If the court finds that a party has unsuccessfully made or opposed a motion to compel responses to inspection demands, the court “shall impose a monetary sanction . . . unless it 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., § 2031.310, subd. (h).)

As set forth in the joint statement, Plaintiff seeks Dr. Rosen’s further response to eight Requests for Production. As the requests in the joint statement do not correspond with the requests identified in Plaintiff’s separate statement (Nos. 1, 5, 7, 12, 13, 17, and 25), the Court addresses each request as they appear in the joint statement, in numerical order. Upon review of the joint statement, the Court rules as follows.

Request No. 1 seeks “Any and all documents given to and/or reviewed by the deponent in this case.”

Defendant and Dr. Rosen (hereinafter, “Responding Party”) state upon information and belief that Plaintiff possesses the documents demanded (e.g., the records reportedly prepared by Plaintiff’s own healthcare providers). Responding Party mischaracterizes the request. The request is not for Plaintiff’s healthcare provider's documents but for all documents reviewed by Dr. Rosen in preparation for this case.

Plaintiff contends that, as of March 22, 2023, the documents have not been produced.

On March 3, 2023, the Court ordered the production of “any non-objectionable responsive documents … within 10 days (for example the patient file reviewed by Dr. Rosen and all documents upon which Dr. Rosen relied in forming his opinion or in preparation of the deposition).” Responding Party has not so done. Accordingly, the motion is GRANTED as to Request No. 1.

Request No. 2 seeks “Any and all documents that reflect communications between the deponent and/or his office staff and any other person wherein the case was mentioned, discussed, and/or referred to.”

Responding Party state upon information and belief that the demanded documents are within Dr. Rosen’s case file, which was timely tendered to Plaintiff. Responding Party points to Dr. Rosen’s deposition as proof that Plaintiff received Dr. Rosen’s file. (Rosen Depo., p. 11:9-10.)

Plaintiff contends that, as of March 22, 2023, Responding Party has not produced all documents.

A review of Dr. Rosen’s deposition supports Plaintiff’s contention. While Plaintiff’s counsel acknowledged receipt of Dr. Rosen’s case file, counsel also indicated that the case file included mail communications only. Missing from the file were email communications, text messages, and social media messages. (See Dr. Rosen Depo., pp. 13:9-14:19.) Moreover, the Court ordered the production of “any non-objectionable responsive documents … within 10 days.” Accordingly, the motion is GRANTED as to Request No. 2.

Request No. 3 seeks “Any and all reports (including drafts thereof) that reflect the deponent’s expert opinions and/or review of records in this case.” This request is no longer at issue. Accordingly, the motion is MOOT as to Request No. 3.

Request No. 4 seeks “Any and all documents that reflect the amount of compensation paid or to be paid to the deponent for his services in this case including but not limited to, a record of all charges billed, and the total number of hours spent in this matter.”

Responding Party states upon information and belief that the demanded documents are within Dr. Rosen’s case file, which was timely tendered to Plaintiff.

Plaintiff contends that, as of March 22, 2023, Responding Party has not produced all documents.

The Court ordered the production of “any non-objectionable responsive documents … within 10 days. Responding Party has not so done. Accordingly, the motion is GRANTED as to Request No. 4.

Request No. 5 seeks “Any billing records for services rendered by the deponent or anyone acting at his direction or behalf in connection with this case, and the work and consultation thereof, including all-time records showing time spent and the expenses incurred.”

This request does not appear to be at-issue. Responding Party states that Plaintiff has these documents, to which Plaintiff has not responded. Accordingly, the motion is MOOT as to Request No. 5.

Request No. 6 seeks “A copy of all Federal Court listings of other cases in which the deponent has testified as an expert (at trial or deposition).”

Responding Party states that the request is improper because this matter is a state court matter. Further, Plaintiff has not provided applicable authority mandating the production of this request.

Plaintiff contends that Dr. Rosen admitted that he possesses a responsive document. Further, the document is relevant to Dr. Rosen’s credibility and possible bias in this case.

Plaintiff’s point is well-taken. Dr. Rosen testified that he has a document listing the cases in which he has testified. (Dr. Rosen Depo., p. 9:16-20.) Additionally, Responding Party fails to cite any authority that such documents are to be produced only in federal cases. Accordingly, the motion is GRANTED as to Request No. 6.

Responding Party argue that Dr. Rosen testified over the course of the deposition as to his earnings in this matter and to his yearly earning providing expert services.

Plaintiff contends that Dr. Rosen must disclose his income regarding his work for attorneys. Plaintiff cites Stony Brook I Homeowner’s Ass’n v. Superior Court (2000) 84 Cal.App.4th 691, 700 (Stony Brook) for the proposition that an expert must provide “information covering a three-year period of time: a numerical estimate of defense-and plaintiff related medical-legal work, including exams, reports, and deposition and court testimony, and a numerical estimate of the amount of income generated from said defense- and plaintiff related litigation.”

Responding Party attached selected pages from Dr. Rosen’s deposition (Exhibit 13 to the Lodging of Exhibits, pages 16, 19, 21.) Plaintiff does not attach the relevant deposition transcripts. Responding Party’s reference to the deposition indicates that several of the categories at issue may have already been provided. Plaintiff’s failure to attach the relevant portions of the deposition frustrates and forestalls resolution of this issue. Based on Responding Party’s objection, Dr. Rosen may have provided testimony responsive to this request. However, because neither party submits the relevant deposition transcripts, the Court cannot make a ruling as to this request. The Court will hear argument from the parties.

Request No. 8 concerns the following question: “Are you going to suggestion [sic] to the jury that any of the treating doctors committed medical malpractice?”

The parties cite pages 33-42 of the Dr. Rosen’s deposition transcript in support of their arguments. However, this portion of the transcript has not been submitted to the Court. Accordingly, the Court cannot make a ruling on this request. The Court will hear argument from the parties.

Plaintiff requests monetary sanctions. Because the Court has found that Responding Party has unsuccessfully opposed this motion, sanctions are mandatory. (Code Civ. Proc., § 2031.310, subd. (h).) In the notice of motion, Plaintiff identifies Dr. Rosen only against whom sanctions are sought. Accordingly, the Court imposes sanctions against Dr. Rosen in the reduced amount of $2,610 consisting of 3 hours of Plaintiff’s counsel’s hourly rate of $850 and the $60 filing fee.

The motion is GRANTED as to Request Nos. 1, 2, 4, and 6. Dr. Rosen is ordered to produce all documents without objections that are responsive to Request Nos. 1, 2, 4, and 6 within ten days of this order.

The Court cannot rule on Request Nos. 7 and 8. The Court will hear argument from the parties.

Plaintiff’s request for sanctions is GRANTED. Dr. Charles Rosen is ordered to pay $2,610 to Plaintiff, by and through their counsel, within 30 days of this order.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Kerry Bensinger

Judge of the Superior Court