Judge: Michael E. Whitaker, Case: 22SMCV00500, Date: 2023-10-24 Tentative Ruling

Case Number: 22SMCV00500    Hearing Date: October 24, 2023    Dept: 207

TENTATIVE RULING - NO. 1

MOTIONS

            Plaintiff and Cross-Defendant Prohealth Advanced Imaging Medical Group, Inc. (“Prohealth”) moves to compel responses from Defendant and cross-complainant, Hess D. Panah Esq (“Panah”) to Form Interrogatory Number 17 (Set Two) (“FROG-2”); Special Interrogatories (Set Two) (“SROG-2”); and Requests for Admission (Set Two) (“RFA-2”).  Prohealth also seeks monetary sanctions in connection with the motions.  Panah has not filed oppositions to the motions.   

LEGAL STANDARDS

1.      Interrogatories

Pursuant to Code of Civil Procedure section 2030.290, “[i]f a party to whom interrogatories are directed fails to serve a timely response . . . [t]he party to whom the interrogatories are directed waives any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or the protection for work product under Chapter 4 (commencing with Section 2018.010.  . . .   [and] The party propounding the interrogatories may move for an order compelling response to the interrogatories.”  (Code Civ. Proc., § 2030.290, subds. (a)-(b).) 

2.      Requests for Admission

             Pursuant to Code of Civil Procedure section 2033.280, subdivision (a), “[i]f a party to whom requests or admission are directed fails to serve a timely response . . .  [t]he party to whom the requests for admission are directed waives any objection to the requests, including one based on privilege or on the protection for work product[.]”  (Code Civ. Proc., § 2033.280, subd. (a).)  Where a party fails to respond to requests for admissions, the propounding party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction.¿ (Code Civ. Proc., § 2033.280, subd. (b).)

ANALYSIS

1.      Discovery Requests

Prohealth served Panah the FROG-2, SROG-2 and RFA-2 on May 24, 2023.  (See Talkov Decl. ¶ 3 and Exs. 1-2 thereto.)  Panah did not timely respond to the subject discovery requests.  On September 12, 2023, after the responses were already overdue, Prohealth granted Panah an extension until September 18, 2023 to provide responses, without objections.  (Talkov Decl. ¶ 5 & Ex. 2.)  Panah has not responded.  Accordingly, the Court finds that Panah has failed to timely serve responses to the FROG-2, SROG-2 and RFA-2.

However, with respect to the RFA-2, Prohealth has styled its motion as a “motion to compel” responses to the RFA-2, and has relied upon the statutory provisions applying to interrogatories, as opposed to requests for admission.  When a litigant fails to timely respond to requests for admission, the proper remedy is a motion to deem admitted.  (Code Civ. Proc., § 2033.280.)  Similarly, Code of Civil Procedure section 2030.290 applies to interrogatories, not requests for admission.  Further, Prohealth failed to attach to its moving papers a copy of the subject RFA-2.  As such, the Court Prohealth’s “motion to compel” RFA-2 is procedurally defective. 

2.      Monetary Sanctions

Prohealth requests monetary sanctions in connection with the motions.  The Court finds Panah’s failure to timely respond to the FROG-2 and SROG-2 to be an abuse of the discovery process, warranting monetary sanctions.  (See Code Civ. Proc., §§ 2023.010, subd. (d), 2030.290, subd. (c).)  Accordingly, the Court will impose monetary sanctions against Panah in the amount of $1590.00, which represents four hours of attorney time to prepare the moving papers, and attend the hearing, at $350 per hour, plus the motion filing fees of $120 at $60 per motion.   

CONCLUSION AND ORDER

Therefore, the Court grants Plaintiff’s motions to compel responses to the FROG-2 and SROG-2 per Code of Civil Procedure sections 2030.290.  As such, the Court orders Panah to serve verified responses to the FROG-2 and SROG-2, without objections, within 20 days of this order.

The Court denies Plaintiff’s motion to compel responses to RFA-2 without prejudice under Code of Civil Procedure section 2033.280.

Finally, the Court orders Panah to pay monetary sanctions in the amount $1590 to Prohealth, by and through counsel for Prohealth, within 20 days of this order.

Prohealth is ordered to provide notice of the Court’s orders and file a proof of service of such.

DATED:  October 24, 2023                          ________________________________

                                                                        Michael E. Whitaker

                                                                        Judge of the Superior Court

 TENTATIVE RULING - NO. 2

MOTIONS

            This lawsuit arises out of a breach of contract dispute concerning Defendant and Cross-Complainant Hess D. Panah Esq.’s (“Panah” or “Defendant”) referral of various patients to Plaintiff and Cross-Defendant Prohealth Advanced Imaging Medical Group, Inc. (“Prohealth” or “Plaintiff”) for various medical services. 

            Prohealth moves for an order compelling Panah to provide supplemental responses to the following discovery requests:

1.      Form Interrogatories (Set 1), Nos. 2 & 5 (FROG-1)

a.       Propounded:         May 9, 2022

b.      Responded:           June 21, 2023

c.       Motion Filed:        September 19, 2023

2.      Special Interrogatories (Set 1), Nos. 2 & 5 (SROG-1)

a.       Propounded:         May 9, 2022

b.      Responded:           June 21, 2023

c.       Motion Filed:        September 19, 2023

            Panah opposes the motions and Prohealth has replied. 

PROCEDURAL REQUIREMENTS

            Informal Discovery Conference

            Per the Courtroom Information for Beverly Hills, Dept. 207, ¶ 12, if parties cannot agree on discovery issues, “the parties are to schedule an Informal Discovery Conference” and following the IDC, “the Court may or may not grant permission to the parties to file any motions to compel discovery or compel further discovery responses.”

            Here, the parties complied by scheduling and attending an Informa Discovery Conference on July 7 2023.

            Timeliness of Motion

            A notice of motion to compel further responses must be given within 45 days of the service of the responses, or any supplemental responses, or on or before any specific later date to which the parties have agreed in writing. (Code Civ. Proc., §§ 2030.300, subd. (c).)  Failure to file such a motion within this time period constitutes a waiver of any right to compel further responses to interrogatories.  (Ibid.; see also Vidal Sassoon, Inc. v. Superior Court (1983) 147 Cal.App.3d 681, 683 [“This statute is mandatory and the court may not entertain a belated motion to compel”]; Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410 [the trial court is without authority to rule on motions to compel further discovery responses that are untimely].)   

            Panah objects to the motions on the basis that they are untimely.  The Court agrees.

            Panah served verified responses to FROG-1 and SROG-1 on June 21, 2023 by electronic transmission.  As such, under Code of Civil Procedure section 2030.300, Prohealth’s motions to compel further responses to FROG-1 and SROG-1 were due on or before August 9, 2023 (45 calendar days + 2 court days for service).  Prohealth filed the instant motions on September 19, 2023 – 41 days after the statutory deadline. 

            At the July 7, 2023 IDC, the Court notes that Panah agreed to serve further responses to the subject discovery requests by August 18, 2023.  (See July 7, 2023 Minute Order.)  The Court further notes that the minute order of July 7 indicates:  “If Plaintiff does not receive the further responses to the first set of requests and/or responses to the second set of requests, Plaintiff may proceed with filing a motion to compel.)  (Ibid.)  What is unclear to the Court is whether the parties agreed to extend the motion deadline in writing as required under Section 2030.300, subdivision (c) or whether the parties agreed orally during the July 7 IDC to extend Prohealth’s deadline to file motions to compel further discovery responses.  The minute order is silent as to any extension of the August 9 motion deadline. 

CONCLUSION AND ORDER

            The Court is without jurisdiction to hear the motions to compel supplemental responses.  Consequently, the Court denies Prohealth’s motions to compel supplemental responses to FROG-1 and SROG-1. 

            Prohealth shall provide notice of the Court’s ruling and file a proof of service regarding the same. 

DATED:  October 24, 2023                                                    ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court