Judge: Matthew C. Braner, Case: 37-2022-00019641-CU-BC-CTL, Date: 2023-12-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 08, 2023

11/09/2023  09:00:00 AM  C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited  Breach of Contract/Warranty Summary Judgment / Summary Adjudication (Civil) 37-2022-00019641-CU-BC-CTL ADMIRE VS TOTAL VISION LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Cross-Defendants Kim E. Admire, Atelier Optica, LLC, and Atelier Optica Optometry's motion for summary judgment, or in the alternative summary adjudication, is DENIED as untimely.

Plaintiff/Cross-Defendant Kim E. Admire's motion to compel further response to requests for production of documents and special interrogatories to Defendants Total Vision, LLC, Total Vision, P.C., and Total Vision Holdings, LLC is GRANTED in part.

Motion for Summary Judgment/Adjudication Cross-Defendants did not file and serve their motion within the required 75-day time limit set forth in Code of Civil Procedure section 437c, subdivision (a)(2), which is a jurisdictional requirement the court has no authority to disregard. (See, e.g., McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 118 ['[I]n light of the express statutory language, trial courts do not have authority to shorten the minimum notice period for summary judgment hearings.'].) Here, Cross-Defendants served their motion by personal service on August 14, 2023. (See, e.g., ROA #'s 72, p. 5 [POS].) The motion was noticed for a hearing on October 27, 2023. (ROA #72, p. 1.) The last day to serve the motion is calculated by 'counting backward from the hearing date, excluding the day of the hearing as provided by Section 12.' (Code Civ. Proc., § 12c, subd. (a).) Counting 75 days backwards from the October 27, 2023 hearing date results in a date of August 13, 2023. By filing and serving their motion on August 14, 2023, Cross-Defendant's provided only a 74-day notice period, rendering their motion untimely.

The fact that the last day for Cross-Defendants to serve their motion fell on a holiday (a Sunday) does not help them. If the last day to serve a motion is a holiday, that day is also excluded from the calculation. (Code Civ. Proc., § 12.) As the court understands the interaction of Code of Civil Procedure sections 12 and 12c, in counting backwards from the hearing date, if the last day to serve the motion falls on a holiday, exclusion of that day from the calculation means that the last day to serve the motion is the next non-holiday from the hearing date. In other words, if the last day falls on a Sunday, the last day to serve the motion is the Friday before that Sunday, and not the Monday following that Sunday.

The court's understanding is consistent with section 12a, which provides that if the last day to perform any act within a specified period of time is a holiday, 'then that period is hereby extended to and including the next day that is not a holiday.' (Code Civ. Proc., § 12a, subd. (a).) Logically, if the 'period of time' is a notice period calculated from the date of the hearing, extending the period would require an Calendar No.: Event ID:  TENTATIVE RULINGS

3046111  2 CASE NUMBER: CASE TITLE:  ADMIRE VS TOTAL VISION LLC [IMAGED]  37-2022-00019641-CU-BC-CTL earlier last day to serve the motion in order to 'extend' that notice period. It is also consistent with the straightforward requirement that a party opposing a motion for summary judgment be afforded minimum notice of 75 days.

Accordingly, due to their failure to serve their motion at least 75 days prior to the October 27, 2023 hearing date, Cross-Defendants' motion is denied without prejudice.

Although the motion is denied without prejudice on procedural grounds, in the interests of potentially preserving court and party time and resources, the court notes that it has reviewed the briefing and evidence submitted by the parties and likely would have denied the motion even if it had been timely served. The evidence was not sufficient to conclude, as a matter of law, that all of the applicable non-compete clauses are unenforceable, and material factual disputes exist concerning the purported representations made to Cross-Defendant Admire from Dr. Steve Klein, and whether Cross-Defendant Admire was involved in the formation of Atelier Optica, LLC and/or now has a business interest in Atelier Optica, LLC.

Motion to Compel As an initial matter, the court declines to refuse to hear Plaintiff's motion on the basis that it was not filed timely, which the court in its discretion may do, as the parties waived the jurisdictional 45-day time limitation. (ROA #100.) Although the court is not fully convinced the parties agreed to waive the requirement to add two court days for electronic service of moving papers, the court does not believe Plaintiffs' counsel's understanding was unreasonable. Defendants have also known since early September of the grounds for Plaintiffs' motion and engaged in meet and confer efforts prior to the court's setting of the motion for November 9. (ROA #'s 89, 100.) Going forward, the parties are instructed to comply with the two-court-day requirement for service of moving papers, or to agree on an express written waiver of that requirement.

Plaintiff Admire seeks further responses from Defendants to her requests for production ('RFP') nos.

17-21 and to special interrogatory no. 1. As to RFP no. 20, the court agrees with Defendants that this is not a proper request for documents already in the possession, custody, or control of Defendants; rather, it is essentially an interrogatory that calls for Defendants to create a document that sets forth the requested information. It appears Plaintiffs recognized this defect, as special interrogatory no. 1 asks for the same information as RFP no. 20. As such, Plaintiff's motion is denied as to RFP no. 20.

However, the remainder of Plaintiff's motion is granted. Plaintiff contends the requests seek discoverable documents and that any privacy concerns have been vitiated by the protective order now in place.

Plaintiff further argues that Defendant's strategy of dumping approximately 46,000 largely unresponsive documents is a sanctionable abuse of the discovery process designed to bury the few responsive documents produced, and to make it difficult and expensive for Plaintiff determine what documents are missing. The court agrees.

First, Defendant's argument that Plaintiff's 'broad' requests are what triggered the document dump is inaccurate, if not misleading. Defendants use as an example RFP No. 18, and characterize it as requesting 'all insurance reimbursements. . . . These insurance reimbursement forms and any payments or direct deposit records should include, but not be limited to, Vision Service Plan, Medical Eye Service, Davis Vision Inc., Tri-Care Spectera, Aetna, [etc.].' (Opposition Memorandum, at p. 4.) The court is less than pleased with Defendants' attempt to manipulate the language of the request, which in fact reads, in relevant part: 'Please produce all insurance reimbursements (commonly referred to as 'Explanation of Benefits' . . . , and all payments received that were not collected directly from the patient) from all offices which Dr. Kim E. Admire, OD provided optometry services during her employment at Total Vision from January 2019 through September 2021.' Quite plainly, the request was limited in both time (January 2019 to September 2021) and scope (only offices at which Plaintiff Admire provided optometry services).

Similarly, the court finds unpersuasive Defendants' argument that it was forced to provide all EOB Calendar No.: Event ID:  TENTATIVE RULINGS

3046111  2 CASE NUMBER: CASE TITLE:  ADMIRE VS TOTAL VISION LLC [IMAGED]  37-2022-00019641-CU-BC-CTL statements from all of its California offices because too many of the EOBs do not identify the provider or practice where the services were provided. The examples Plaintiff provided on reply sufficiently demonstrate the likelihood that Defendants' representation is at best inaccurate. Moreover, even if it were the case that the EOBs do not list the provider or location, they certainly list the patient; had Defendants complied with their discovery obligations and provided a list of the patients in response to Plaintiff's special interrogatory no. 1, they could have produced only those documents associated with the patients seen by Plaintiff Admire.

Second, the court rejects Defendants' representation regarding the 'legacy' records system and their purported inability to obtain documents from prior to March 2020. Maintaining such records is mandated by law, and Defendants' judicial admissions made in their federal case against Vision Service Plan strongly suggests they in fact have access to the records. As such, if Defendants continue to rely on this argument, the court will consider allowing a third-party to directly access and investigate Defendants' records systems, or to make a ruling that Defendants' failure to produce the documents was willful or intentional and may therefore be considered unfavorable to them by the trier of fact. (See, e.g., CACI No. 204; Evid. Code, § 413.) Finally, Defendants rely on an older and no longer applicable provision of the discovery code that allowed documents to be produced in the manner in which they are maintained in the regular course of business. That is no longer than law. Instead, the requirement is that '[a]ny documents or category of documents produced in response to a demand for inspection, copying, testing, or sampling shall be identified with the specific request number to which the documents respond.' The court acknowledges that this language can be interpreted to mean either that documents produced should be organized (i.e., 'identified with') according to the requests to which they are responsive, or that documents responsive to a request should be identified in the response to the request. But Defendants did neither, and the intent of the provision is clearly to prevent the kind of document dump produced by Defendants.

Accordingly, Plaintiff Admire's motion is granted as to RFP Nos. 17, 18, 19, and 21, and special interrogatory 1.

Under the circumstances described above, particularly the improper document dump of largely unresponsive and irrelevant documents, sanctions are warranted. Plaintiff requests a sanction of $69,850 for 127 hours of attorney work by attorney Mark Nelson at a rate of $550/hour, in connection with bringing the motion and reviewing the 46,000 plus document dump, of which he attests only 800 were responsive. Although the court believes sanctions are warranted and that review of the documents was reasonable (a necessary perquisite to determine which documents were responsive and thereby ascertain what documents were not produced), the requested amount goes too far, as measured by both hours worked and the rate applied. The court will use a rate of $450/hour for 10 hours of work associated with the motion (moving papers, review of opposition, reply, and preparation for and appearance at the hearing), and a rate of $375/hour for 30 hours of work associated with review of the documents. Consequently, Defendants and their counsel of record are sanctioned in the amount of $15,750.

Defendants are compelled to provide verified code-compliant further responses to RFP Nos. 17, 18, 19, and 21, and special interrogatory 1, to produce all documents in their possession, custody, or control responsive to those requests, and to pay $15,750.00 in sanctions no later than close of business on December 8, 2023.

The minute order is the order of the court.

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