Judge Michael P. Linfield, Case 19STCV45653 2022-08-16 Tentative Ruling

Judge: Michael P. Linfield, Case: 19STCV45653, Date: 2022-08-16 Tentative Ruling

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Case Number: 19STCV45653 Hearing Date: August 16, 2022 Dept: 34

SUBJECT: Defendant Anita Kovacic’s Motion to Compel Plaintiff Nicole Abramson to Further Respond to Form Interrogatory No. 6.4

Moving Party: Defendant Anita Kovacic (“Kovacic”)

Resp. Party: Plaintiff Nicole Abramson (“Abramson”)

SUBJECT: Defendant Anita Kovacic’s Motion to Compel Plaintiff Douglas Stork to Further Respond to Form Interrogatory No. 6.4 and Request for Imposition of Monetary Sanctions, In the Amount of $2,520.00, Against Plaintiff Douglas Stork and His Counsel Lindsay Burton, Montse Murillo, and BB Law Group LLP, Jointly and Severally

Moving Party: Defendant Anita Kovacic (“Kovacic”)

Resp. Party: Plaintiff Douglas Stork (“Stork”)

Defendant Anita Kovacic’s Motion to Compel Plaintiff Nicole Abramson to Further Respond to Form Interrogatory No. 6.4 is GRANTED as to all of Abramson’s medical providers.

Defendant Anita Kovacic’s Motion to Compel Plaintiff Douglas Stork to Further Respond to Form Interrogatory No. 6.4 is GRANTED as to all of Stork’s medical providers.

Defendant Anita Kovacic’s Request for Monetary Sanctions is GRANTED in the amount of $1,260.00 against Plaintiff Douglas Stork, and Stork’s counsel Lindsay Burton, Montse Murillo, and BB Law Group.

I. BACKGROUND

On December 17, 2019, Plaintiffs Nicole Abramson and Douglas Stork filed a complaint against Defendants Anita Kovacic, Marine View Management, Inc., and BLK Properties, LLC alleging the following causes of action:

1. Breach of Implied Warranty of Habitability

2. Negligence

3. Breach of Contract

On April 6, 2021, Plaintiffs Nicole Abramson and Douglas Stork filed a First Amended Complaint against Defendants Anita Kovacic, Marine View Management, Inc., and BLK Properties, LLC alleging the same causes of action.

On July 19, 2022, Defendant Anita Kovacic moved the Court “for the issuance of an Order compelling Plaintiff Nicole Abramson to further respond, without objections, to Form Interrogatory 6.4.” (MTCF (Abramson), p. 2:5-6.)

On July 19, 2022, Defendant Anita Kovacic moved the Court “for the issuance of an Order compelling Plaintiff Douglas Stork to further respond, without objections, to Form Interrogatory 6.4.” (MTCF (Stork), p. 2:5-6.) “Additionally, Defendant Kovacic will move the Court, pursuant to California Code of Civil Procedure Section 2030.300(d), for the issuance of an Order imposing monetary sanctions, in the amount of $2520.00 against Plaintiff Douglas Stork and Plaintiff’s counsel, Lindsay Burton, Montse Murillo, and BB Law Group LLP, jointly and severally.” (MTCF (Stork), p. 2:11-14.)

On August 3, 2022, Plaintiffs Abramson and Stork separately opposed Kovacic’s motions to compel further responses.

On August 9, 2022, Kovacic replied to Abramson and Stork’s separate oppositions.

II. ANALYSIS

A. Legal Standard

1. Motion to Compel Further

Motions to compel further responses to discovery requests must always be accompanied by a meet-and confer-declaration (CCP § 2016.040) demonstrating a reasonable and good faith attempt to informally resolve each issue presented by the motion. (Id., §§ 2030.300(b), 2031.310(b)(2), 2033.290(b).) They must also be accompanied by a separate statement containing the requests and the responses, verbatim, as well as reasons why a further response is warranted. (Cal. Rules of Court, rule 3.1345(a).) The separate statement must also be complete in itself; no extrinsic materials may be incorporated by reference. (Id., rule 3.1345(c).) "In lieu of a separate statement required under the California Rules of Court, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute." (CCP § 2030.300.)

“Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories.” (CCP § 2030.300(c).) Any motion to compel further must be filed within 45 days from responses, supplemental responses, or a specific later date agreed to in writing. (CCP §§ 2030.300(c), 2031.310(c), 2033.290(c).) Failure to file the motion within the specified period constitutes a waiver of the right to compel a further response. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) The time period is mandatory and jurisdictional in the sense that it renders the Court without authority to rule on motions to compel other than to deny them. (Id.)

A motion to compel further responses to form or specially prepared interrogatories may be brought if the responses contain: (1) answers that are evasive or incomplete; (2) an unwarranted or insufficiently specific exercise of an option to produce documents in lieu of a substantive response; or (3) unmerited or overly generalized objections. (CCP, § 2030.300(a).)

A motion to compel further responses to requests for production “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” (CCP § 2031.310(b)(1).) “To establish ‘good cause,’ the burden is on the moving party to show both: [¶] Relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case); and [¶] Specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial.) [Citations.] [¶] The fact that there is no alternative source for the information sought is an important factor in establishing ‘good cause’ for inspection. But it is not essential in every case.” (Edmon & Karnow, California Practice Guide: Civ. Proc. Before Trial (The Rutter Group 2020) ¶ 8:1495.6.)

“For discovery purposes, information is relevant if it ‘might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement.’ [Citation.] Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. [Citation.] These rules are applied liberally in favor of discovery.” (Gonzales v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.)

“If ‘good cause’ is shown by the moving party, the burden is then on the responding party to justify any objections made to document disclosure (the same as on motions to compel answers to interrogatories or deposition questions).” (Edmon & Karnow, supra, at ¶ 8:1496.)

2. Monetary Sanctions

“The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that 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.” (CCP § 2023.030(a).)

B. Discussion

3. Motion to Compel Further – Nicole Abramson

Defendant BLK Properties, LLC’s Form Interrogatory No. 6.4, propounded on July 31, 2020, states the following:

“6.4 Did you receive any consultation or examination (except from expert witnesses covered by Code of Civil Procedure sections 2034.210-2034.310) or treatment from a HEALTH CARE PROVIDER for any injury you attribute to the INCIDENT? If so, for each HEALTH CARE PROVIDER state:

a) the name, ADDRESS, and telephone number;

b) the type of consultation, examination, or treatment provided;

c) the dates you received consultation, examination, or treatment; and

d) the charges to date.” (Gruskin Decl. (Abramson), ¶ 2, Ex. 7.)

Kovacic’s counsel asserts that on November 11, 2020, Abramson “responded to FI 6.4 and identified TWO medical providers: (i) Dr. George Brynes and (ii) Dr. Roger Katz.” (Gruskin Decl. (Abramson), ¶ 3, Ex. 1.) Kovacic’s counsel further asserts that on June 15, 2021, Kovacic propounded Form Interrogatories upon Abramson, including Form Interrogatories No. 6.4. (Gruskin Decl. (Abramson), ¶ 4, Ex. 5.) However, Kovacic’s counsel asserts, Abramson omitted Dr. Roger Katz from her medical providers in response to Kovacic’s Form Interrogatories No. 6.4. (Gruskin Decl. (Abramson), ¶ 5, Ex. 2.) On May 25, 2022 and June 1, 2022, Kovacic’s counsel asserts that Abramson served Further Responses to Form Interrogatories No. 6.4 and Second Further Responses to Form Interrogatories No. 6.4, respectively. (Gruskin Decl. (Abramson), ¶¶ 7, 8, Exs. 3, 4.) Neither further response identified Dr. Roger Katz as one of Abramson’s medical providers. (Id.) The Second Further Responses to Form Interrogatories No. 6.4 “refused to identify the dates of her treatment/examination/consultation and charges to date” with respect to chiropractor Dr. George Brynes. (Gruskin Decl. (Abramson), ¶ 8, Exs. 4.)

Abramson’s counsel asserts that on November 11, 2019, Abramson’s counsel’s office “retained Dr. Roger Katz as her expert allergist and she was subsequently examined by Dr. Katz in a med-legal consult. Dr. Katz has never been Plaintiff’s treating physician. Defendant ANITA KOVACIC and her counsel have known since at least June 2021 that Dr. Katz is not a treating physician.” (Burton Decl. (Abramson), ¶ 2 (emphasis in original).) Further, Abramson’s counsel notes the following: “Although Dr. Katz has always been a retained expert, Plaintiff’s counsel, myself, and Ms. Murillo, inadvertently identified him as a treating physician in her responses to Defendant BLK Properties, LLC’s Form Interrogatories, Set One. This was an excusable attorney mistake, which Ms. Gruskin was made aware of via e-mail as early as May 26, 2022.” (Burton Decl. (Abramson), ¶ 5.) Abramson’s counsel reiterates that Abramson “did not identify Dr. Katz as a treating physician, because Dr. Katz has never been Plaintiff’s treating physician. Dr. Katz has only performed independent med-legal examinations and has never provided Plaintiff with treatment services as her treating physician.” (Burton Decl. (Abramson), ¶ 8.)

The inconsistent identification of Dr. Roger Katz as Abramson’s physician – and the more than a year lapse in plaintiff’s correction of these alleged errors – raises the question of whether Plaintiff has been accurate in responding to form interrogatory No. 6.4. The Court is surprised that the parties were not able to resolve this issue in an informal meet-and-confer.

4. Motion to Compel Further – Douglas Stork

Kovacic’s counsel asserts that Defendant BLK Properties, LLC’s Form Interrogatory No. 6.4, propounded on July 31, 2020, asked Stork to identify his medical providers, and on November 11, 2020, Stork’s response to Form Interrogatory No. 6.4 “identified SIX medical providers: (i) Dr. George Brynes; (ii) Dr. Roger Katz; (iii) Dr. Christina Garcia; (iv) Dr. Joel Gould; (v) Dr. Diana Risco; and (vi) Dr. Lisa Dorsey.” (Gruskin Decl. (Stork), ¶¶ 2, 3, Exs. 1, 13.) Kovacic’s counsel further asserts that on June 15, 2021 Kovacic propounded Form Interrogatories on Stork, including Form Interrogatory No. 6.4, and in response Stork omitted four of the six medical providers noted in response to Defendant BLK Properties, LLC. (Gruskin Decl. (Stork), ¶¶ 4, 5, Exs. 2, 5.) Stork’s subsequent further responses to Kovacic’s Form Interrogatory No. 6.4 continued this failure to identify the full complement of Stork’s medical providers. (Gruskin Decl. (Stork), ¶¶ 7, 8, Exs. 3, 4.) Further, Kovacic’s counsel notes that Stork “failed to identify the dates of his treatment/examination/consultation with Dr. Brynes,” stating instead that this information was “unknown,” though Stork represented that he possessed his medical records on October 10, 2019. (Gruskin Decl. (Stork), ¶¶ 9, 10, Ex. 9.)

Stork’s counsel asserts that Dr. Katz was retained by her office “as his expert allergist and he was subsequently examined by Dr. Katz in a med-legal consult. Dr. Katz has never been Plaintiff’s treating physician. Defendant ANITA KOVACIC and his counsel have known since at least June 2021 that Dr. Katz is not a treating physician.” (Burton Decl. (Stork), Ex. 2 (emphasis in original).) Further, Stork’s counsel notes the following: “Although Dr. Katz has always been a retained expert, Plaintiff’s counsel, myself, and Ms. Murillo, inadvertently identified him as a treating physician in his responses to Defendant BLK Properties, LLC’s Form Interrogatories, Set One. This was an excusable attorney mistake, which Ms. Gruskin was made aware of via e-mail as early as May 26, 2022.” (Burton Decl. (Stork), ¶ 5, Ex. 5.) Stork’s counsel notes that Stork propounded amended discovery responses on Defendant BLK Properties, LLC that omitted Dr. Katz as a treating physician on May 27, 2022. (Burton Decl. (Stork), ¶ 6, Ex. 6.) Stork’s counsel notes that in Stork’s response to Kovacic’s Form Interrogatory No. 6.4, Stork “did not identify Dr. Katz as a treating physician, because Dr. Katz’s has never been Plaintiff’s treating physician. Dr. Katz has only performed independent med-legal examinations and has never provided Plaintiff with treatment services as his treating physician.” (Burton Decl. (Stork), ¶ 8, Ex. 16.)

5. Monetary Sanctions – Douglas Stork

Kovacic asks the Court to impose monetary sanctions in the amount of $2,520.00 against Stork, and Stork’s counsel Lindsay Burton, Montse Murillo, and BB Law Group. (MTCF (Stork), MPA, p. 11:10-14.) This figure represents the roughly twelve (12) hours Kovacic’s counsel spent preparing documentation on this motion, Stork’s opposition, and Kovacic’s response. (Gruskin Decl. (Stork), ¶ 20.)

The Court awards sanctions in the amount of $1,260.00 against Stork, and Stork’s counsel Lindsay Burton, Montse Murillo, and BB Law Group.

(Defendant did not request sanctions as against Plaintiff Nicole Abramson, and the Court does not award any such sanctions.)

III. CONCLUSION

Defendant Anita Kovacic’s Motion to Compel Plaintiff Nicole Abramson to Further Respond to Form Interrogatory No. 6.4 is GRANTED as to all of Abramson’s medical providers.

Defendant Anita Kovacic’s Motion to Compel Plaintiff Douglas Stork to Further Respond to Form Interrogatory No. 6.4 is GRANTED as to all of Stork’s medical providers.