Judge: Loren G. Freestone, Case: 37-2022-00046883-CL-PN-CTL, Date: 2024-03-21 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - March 07, 2024

03/08/2024  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Limited  Professional Negligence Discovery Hearing 37-2022-00046883-CL-PN-CTL CARUSO VS MOFID [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Plaintiff Jonathan Caruso's motion to compel Defendants Mehrdad Mark Mofid and M. Mark Mofid, M.D.

APC (collectively, Mofid) to provide further responses to requests for production 1(a), 1(b), 2(a), 2(b), 2(c), and 2(d) is GRANTED.

Caruso requests seek 'the computer image/video animation the defendant showed to him which represented what the defendant promised [him] the final results of the surgery would look like.' Mofid objected that the requests 'lacks foundation' and responded to each that he is 'not in possession of any video responsive to this request.' The parties disagree whether any such video ever existed.

'A representation of inability to comply with the particular demand for inspection . . . shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category.' (Code Civ. Proc., § 2031.230.) Mofid's responses are not code-compliant. Mofid did not affirm he made a diligent search and a reasonable inquiry. Although Mofid stated he is not in possession of the requested animation, he does not specify whether he was ever in possession. Nor does he identify anyone who might have possession of it. Nor does he address whether he has custody or control over it. Mofid also argues in his opposition that the requested animation has never existed, yet that is not the reason provided in his responses for his inability to comply.

The motion to compel is therefore granted. Mofid shall provide further verified, objection-free, code-compliant responses within 10 days.

As the motion is granted, Mofid's request for sanctions is denied.

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