Judge Nathan Vu, Case 2022-01286517 2023-05-22 Tentative Ruling

Judge: Nathan Vu, Case: 2022-01286517, Date: 2023-05-22 Tentative Ruling

Demurrer (Defendant CHCM, Inc.)

Defendant CHCM, Inc.’s Demurrer is OVERRULED as to the 1st and 5th causes of action and sustained with 21 days leave to amend as to the 2nd, 3rd, 4th, 6th, and 7th causes of action.

Defendant CHCM, Inc.’s Request for Judicial Notice is GRANTED. (See Evid. Code, § 452, subd. (d).) However, for future motions, it is not necessary to seek judicial notice of filings in this case. (See Cal. Prac. Guide, Civil Procedure before Trial § 9:53.1a (The Rutter Group 2022) [“It is not necessary to ask the court to take judicial notice of materials previously filed in the case; you should simply call the court's attention to such papers.”].)

Defendant CHCM, Inc., dba College Hospital Costa Mesa (Defendant CHCM) demurs to the 1st through 7th causes of action contained in the Complaint filed by Plaintiff Alex Alfonso Salaverria.

Standard for Demurrer

In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.)

Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice. (Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 fn.7.)

Although courts should take a liberal view of inartfully drawn complaints, (see Code Civ. Proc., § 452), it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought, (Leek v. Cooper (2011) 194 Cal.App.4th 399, 413). Bare conclusions of law devoid of any facts are insufficient to withstand demurrer. (Schmid v. City and County of San Francisco (2021) 60 Cal.App.5th 470, 481; see Code Civ. Proc., § 425.10, subd. (a).)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal App.4th 612, 616.) Demurrers for uncertainty “are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.)

“[A] demurrer for uncertainty will not be sustained where the facts claimed to be uncertain or ambiguous are presumptively within the knowledge of the demurring party.” (Ching v. Dy Foon (1956) 143 Cal.App.2d 129, 136.)

1st Cause of Action (Negligence)

Defendant CHCM contends that the 1st cause of action for negligence is uncertain because it is alleged against a psychiatric hospital and should thus be retitled as a cause of action for professional negligence, not ordinary negligence.

However, the fact that the claim may be “mistitled” does not necessarily mean the claim is uncertain. (See Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 [“If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.”].)

A demurrer for uncertainty should only be sustained where the complaint is so poorly pled that a defendant cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against the defendant, and thus the defendant is unable to respond to the complaint. (Khoury v. Maly’s of California, Inc., supra, 14 Cal. App. 4th at p. 616; Lickiss v. Fin. Indus. Regulatory Auth., supra, 208 Cal.App.4th at p. 1135.)

Defendant CHCM does not contend that it cannot reasonably determine what issues must be admitted or denied or what counts or claims are directed against it, or that it is unable to respond to the Complaint. Defendant CHCM also does not contend that the allegations are insufficient to constitute a claim for professional negligence.

The demurrer must be overruled as to the 1st cause of action.

2nd Cause of Action (Intentional Infliction of Emotional Distress)

Defendant CHCM asserts that the 2nd cause of action for intentional infliction of emotional distress is insufficiently pled because Plaintiff does not allege that Defendant CHCM engaged in extreme or outrageous conduct with the intent of causing emotional distress.

The elements of a cause of action for intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress from the defendant’s outrageous conduct. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.)

Conduct is outrageous when it is “’so extreme as to exceed all bounds of that usually tolerated in a civilized community.’” (Christenen v. Superior Court (1991) 54 Cal.3d 868, 903, quoting Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209.) Further, the conduct must have been “’intended to inflict injury or engaged in with the realization that injury will result.’” (Ibid., quoting Davidson v. City of Westminster, supra, 32 Cal.3d at 210.)

In this case, the Complaint does not plead conduct that is so extreme as to exceed all bounds of that usually tolerated in a civilized community nor that Defendant CHCM acted with intent or the realization that injury would result.

The demurrer must be sustained as to the 2nd cause of action.

3rd Cause of Action (Negligent Infliction of Emotional Distress)

Defendant CHCM argues that negligent infliction of emotional distress is not itself an independent tort and that any such claims must be pled as negligence.

Defendant CHCM is correct. (See Ess v. Eskaton Properties, Inc. (2002) 97 Cal.App.4th 120, 126; Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588.)

The Complaint already asserts a negligence claim, the negligent infliction of emotional distress claim is duplicative.

The demurrer must be sustained as to the 3rd cause of action.

4th Cause of Action (Negligent Supervision)

Defendant CHCM contends that the Complaint, in the 4th cause of action for negligent supervision, does not allege any specific facts showing that it hired or supervised any of the individuals involved in this case, that any of the individuals in question were unfit or incompetent, or that Defendant CHCM knew or should have known that the individuals were unfit or incompetent.

However, at this stage, “[t]he plaintiff is required to plead only ultimate facts, not evidentiary facts.” (C.W. Johnson & Sons, Inc. v. Carpenter (2020) 53 Cal.App.5th 165, 169.) Defendant CHCM does not contend that Plaintiff has not plead ultimate facts.

Nonetheless, the Complaint alleges that all of the Defendants negligently hired and supervised all of the individual defendants, (see Compl., ¶¶ 46, 51), and in the same paragraph alleges that Defendant CHCM only hired “Defendant Geoffrey C RN, Michael Schwartz, MD, and Defendants Does 1-50,” (see Compl., ¶¶ 47, 49). These contradictory allegations are confusing and make it impossible for Defendant CHCM to respond to this cause of action.

The demurrer must be sustained as to the 4th cause of action. The court will grant leave to amend to allow Plaintiff to clearly specify which individuals Defendant CHCM hired and supervised.

5th Cause of Action (Medical Malpractice)

Defendant CHCM does not address the 5th cause of action for medical malpractice in its Demurrer, except to assert in the introduction to the Memorandum of Points and authorities that the Complaint “fails to allege specific facts as against Defendant CHCM and is defectively uncertain as to the theory upon which Plaintiff is relying upon to assert the same.” (Mem. P.&A.s at p. 4:7-9.)

“The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.” (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.)

The Complaint alleges that Defendants owed a professional duty to Plaintiff and they breached that duty by harming Plaintiff “by making false statements and misdiagnosis.” (Compl., ¶ 54.) The Complaint also alleges that the actions of Defendants caused Plaintiff injury. (Compl., ¶ 56.) The allegations of the Complaint are sufficient and not uncertain.

The demurrer must be overruled as to the 5th cause of action.

6th Cause of Action (Medical Indifference)

Defendant CHCM asserts that there is no cause of action for medical indifference and that the 6th cause of action is vague and ambiguous as plead.

In the 6th cause of action for medical indifference, the Complaint alleges that Defendants breached a professional duty to Plaintiff by not providing his required daily HIV regimen and violated the Eighth Amendment by denying Plaintiff adequate medical treatment.

The court is unable to find a basis in the law for an independent claim for medical indifference and Plaintiff has not pointed to any such authority.

In addition, “to maintain an Eighth Amendment claim based on prison medical treatment, an inmate must show ‘deliberate indifference to serious medical needs.’” (Jett v. Penner (9th Cir. 2006) 439 F.3d 1091, 1096, quoting Estelle v. Gamble (1976) 429 U.S. 97, 104). In this case, Plaintiff does not allege that he was being held in prison.

The Complaint only pleads that Plaintiff was on an involuntary hold pursuant to Welfare and Institutions Code section 5150. (Compl.,¶¶ 59-60.) A person being held pursuant to Section 5150 is being held in a hospital and not a prison, and the purpose of the hold is for the safety of the person and the public and not punitive. Thus, the Eighth Amendment’s prohibition against “cruel and unusual punishment” does not apply in such circumstances. (U.S. Const. amend VIII.)

The demurrer must be sustained as to the 6th cause of action.

7th Cause of Action (False Imprisonment)

Defendant CHCM argues that the 7th cause of action for false imprisonment is not sufficiently pleaded and that Defendant CHCM cannot be held civilly liable for Plaintiff being placed on an involuntary hold pursuant to Welfare and Institutions Code section 5150.

The Complaint in the 7th cause of action alleges that Plaintiff “was wrongfully restrained, confined or detained” by Defendants. (Complaint, ¶¶ 66.) Elsewhere in the Complaint, Plaintiff alleges he was involuntary placed on a “5150 hold.” (Complaint, ¶¶ 19, 21.)

California Welfare and Institutions Code section 5150 (“Section 5150”) allows law enforcement officers and various medical professionals to bring an individual to an appropriate facility for assessment, evaluation, and treatment for up to 72 hours where there is “‘probable cause to believe that the person is, as a result of mental disorder, a danger to others, or to himself or herself, or gravely disabled.’” (Jacobs v. Grossmont Hospital (2003) 108 Cal.App.4th 69, 74, quoting Welf. & Inst. Code, § 5150.)

Welfare and Institutions Code section 5278 provides criminal and civil immunity to individuals who exercise the authority granted by Section 5150 “in accordance with the law”. (Welf. & Inst. Code, § 5278.) This immunity “allows individuals authorized to detain a person for 72-hour treatment and evaluation to make that decision without fear of exposure to criminal or civil liability.” (Jacobs v. Grossmont Hospital, supra, 108 Cal.App.4th at p. 76) “Thus, the immunity of section 5278 necessarily applies to individuals or entities who make the decision to detain, when that decision is supported by probable cause.” (Ibid.)

Plaintiff does not allege facts showing that his detention was not in accordance with the law or that he was held without probable case.

The demurrer must be sustained as to the 7th cause of action.

Motion to Strike (Defendant CHCM, Inc.)

Defendant CHCM, Inc.’s Motion to Strike is GRANTED as to all the prayers for punitive damages contained on page 28 of the Complaint filed by Plaintiff Alex Alfonso Salaverria. The remainder of the Motion to Strike is taken OFF CALENDAR as moot.

Defendant CHCM, Inc., dba College Hospital Costa Mesa (Defendant CHCM) moves to strike the prayers for punitive damages, the 2nd cause of action, 4th cause of action, 6th cause of action, and 7th cause of action of the Complaint filed by filed by Plaintiff Alex Alfonso Salaverria.

Standard for Motion to Strike

A court may strike out any irrelevant, false, or improper matter inserted in any pleading or strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule or an order of the court. (Code Civ. Proc., § 436.)

“Irrelevant” matters include: allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not support by the allegations of the complaint. (Code Civ. Proc., § 431.10, subd. (b).)

A motion to strike also may strike legal conclusions. (Weil & Brown, Cal. Prac. Guide, Civil Proc. before Trial, ¶ 7:179 (2010).) Conclusory allegations are permitted, however, if they are supported by other factual allegations in the complaint. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.)

A defendant may seek to strike punitive damages allegations or requests in a complaint lacking factual foundation for such damages. (Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63.)

Punitive Damages

Defendant CHCM contends that Plaintiff cannot seek punitive damages without first complying with Civil Procedure Code section 425.13.

Section 425.13 bars inclusion of a punitive damages claim in “any action for damages arising out of the professional negligence of a health care provider” unless “the court enters an order allowing an amended pleading that includes a claim for punitive damages.” (Code Civ. Proc., § 425.13, subd. (a).

The court may make such an order if the plaintiff first “has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code.” (Ibid.)

In this case, Plaintiff has not sought an order allowing for a claim for punitive damages and the court has not issued such an order.

In addition, Plaintiff has not made a showing that there is a substantial probability that he will prevail in showing Defendant CHCM personally acted with “oppression, fraud, or malice” or that Defendant CHCM had “advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded,” as required by Civil Code section 3294. (Civil Code, § 3294, subds. (a) & (b).)

The Complaint alleges professional negligence (medical malpractice) against Defendant CHCM. Plaintiff did not respond to this argument.

Thus, the motion to strike the prayers for punitive damages in the Complaint must be granted.

2nd, 4th, 6th, and 7th Causes of Action

The motion to strike the 2nd, 4th, 6th, and 7th causes of action is rendered moot by the Court’s ruling on Defendant CHCM’s demurrer.

Defendant CHCM shall give notice of these rulings.

Demurrer (Defendants Saddleback Memorial Medical Center and Sofia Ramsay, RN)

Defendant Saddleback Memorial Medical Center’s Demurrer is OVERRULED as to the 1st cause of action and sustained with 21 days leave to amend as to the 2nd, 4th, 6th, and 7th causes of action.

Defendant Sofia Ramsay, RN’s Demurrer is OVERRULED as to the 1st cause of action and sustained with 21 days leave to amend as to the 2nd, 4th, 6th, and 7th causes of action.

Defendant Saddleback Memorial Medical Center, erroneously sued as Saddleback MemorialCare) (Defendant Saddleback) and Defendant Sofia Ramsay, RN (Defendant Ramsay) demur to the 1st, 2nd, 4th, 6th and 7th causes of action contained in the Complaint filed by Plaintiff Alex Alfonso Salaverria.

Standard for Demurrer

1st Cause of Action (Negligence)

Defendant Saddleback and Defendant Ramsay contend that the 1st cause of action for negligence improperly seeks punitive damages because Plaintiff has not complied with Civil Procedure Code section 425.13.

However, Section 425.13 only relates to the availability of punitive damages. Even assuming a request for punitive damages is improper, the cause of action may still state a claim upon which relief may be granted, but only limited to compensatory damages.

A demurrer may be sustained only if it disposes of an entire cause of action. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119 [demurrer cannot be sustained where it did not dispose of entire count or cause of action].) The argument that Plaintiff has not complied with Civil Procedure Code section 425.13 does not dispose of the entire negligence cause of action and therefore does not provide a basis to demur to the 1st cause of action.

In addition, for the reasons that the court explained with respect to Defendant CHCM, Inc.’s demurrer, the 1st cause of action for negligence sufficiently states a claim upon which relief can be granted.

The demurrer must be overruled as to the 1st cause of action.

2nd Cause of Action (Intentional Infliction of Emotional Distress)

Defendant Saddleback and Defendant Ramsay asserts that the 2nd cause of action for intentional infliction of emotional distress is insufficiently pled because Plaintiff does not allege that Defendant Saddleback and Defendant Ramsay engaged in extreme or outrageous conduct with the intent of causing emotional distress.

For the reasons that the court explained with respect to Defendant CHCM, Inc.’s demurrer,

the Complaint does not plead conduct that is so extreme as to exceed all bounds of that usually tolerated in a civilized community nor that Defendant Saddleback and Defendant Ramsay acted with intent or the realization that injury would result.

The demurrer must be sustained as to the 2nd cause of action.

4th Cause of Action (Negligent Supervision)

Defendant Saddleback and Defendant Ramsay contend that the Complaint, in the 4th cause of action for negligent supervision, does not allege any specific facts showing that either of them hired or supervised any of the individuals involved in this case, that any of the individuals in question were unfit or incompetent, or that Defendant Saddleback and Defendant Ramsay knew or should have known that the individuals were unfit or incompetent.

For the reasons that the court explained with respect to Defendant CHCM, Inc.’s demurrer, the Complaint contains contradictory allegations that are confusing and make it impossible for Defendant Saddleback and Defendant Ramsay to respond to this cause of action. (Compare Compl., ¶¶ 46, 51 with Compl., ¶ 47.)

The demurrer must be sustained as to the 4th cause of action. The court will grant leave to amend to allow Plaintiff to clearly specify which individuals Defendant Saddleback and Defendant Ramsay hired and supervised.

6th Cause of Action (Medical Indifference)

Defendant Saddleback and Defendant Ramsay assert that there is no cause of action for medical indifference and that the 6th cause of action is vague and ambiguous as plead.

For the reasons that the court explained with respect to Defendant CHCM, Inc.’s demurrer, there is no independent claim for medical indifference and the Eighth Amendment does not apply in the circumstances alleged in the Complaint.

The demurrer must be sustained as to the 6th cause of action.

7th Cause of Action (False Imprisonment)

Defendant Saddleback and Defendant Ramsay argues that the 7th cause of action for false imprisonment is not sufficiently plead and that Defendant Saddleback and Defendant Ramsay cannot be held civilly liable for Plaintiff being placed on an involuntary hold pursuant to Welfare and Institutions Code section 5150.

For the reasons that the court explained with respect to Defendant CHCM, Inc.’s demurrer, Plaintiff failed to allege any facts showing that Defendant Saddleback and Defendant Ramsay were not entitled to immunity.

The demurrer must be sustained as to the 7th cause of action.

Motion to Strike (Defendants Saddleback Memorial Medical Center and Sofia Ramsay, RN)

Defendant Saddleback Memorial Medical Center’s Motion to Strike is GRANTED as to all the prayers for punitive damages contained on page 28 of the Complaint filed by Plaintiff Alex Alfonso Salaverria. The remainder of the Motion to Strike is taken OFF CALENDAR as moot.

Defendant Sofia Ramsay, RN’s Motion to Strike is GRANTED as to all the prayers for punitive damages contained on page 28 of the Complaint filed by Plaintiff Alex Alfonso Salaverria. The remainder of the Motion to Strike is taken OFF CALENDAR as moot.

Defendant Saddleback Memorial Medical Center, erroneously sued as Saddleback MemorialCare) (Defendant Saddleback) and Defendant Sofia Ramsay, RN (Defendant Ramsay) move to strike the prayer for punitive damages with respect to the 1st cause of action, the 2nd cause of action, 4th cause of action, 6th cause of action, and 7th cause of action of the Complaint filed by filed by Plaintiff Alex Alfonso Salaverria.

Standard for Motion to Strike

Punitive Damages

Defendant Saddleback and Defendant Ramsay contend that Plaintiff cannot seek punitive damages without first complying with Civil Procedure Code section 425.13.

For the reasons that the court explained with respect to Defendant CHCM, Inc.’s motion to strike, Plaintiff has not met the requirements of Section 425.13.

Thus, the motion to strike the prayer for punitive damages with respect to the 1st cause of action must be granted.

2nd, 4th, 6th, and 7th Causes of Action

The motion to strike the 2nd, 4th, 6th, and 7th causes of action is rendered moot by the Court’s ruling on Defendant Saddle’s demurrer and Defendant Ramsay’s demurrer.

Defendant Saddleback and Defendant Ramsay shall provide notice of these rulings.

Motions to Compel Discovery

Defendant Saddleback Memorial Medical Center’s Motion to Compel Responses to Form Interrogatories, Set One; Special Interrogatories, Set One; and Request for Production of Document, Set One, are GRANTED.

Defendant Sofia Ramsay, RN’s Motion to Compel Responses to Form Interrogatories, Set One; Special Interrogatories, Set One; and Request for Production of Document, Set One, are GRANTED.

The Court ORDERS Plaintiff Alex Alfonso Salaverria to serve full, complete, and verified responses to Saddleback Memorial Medical Center’s Form Interrogatories, Set One; Special Interrogatories, Set One; and Request for Production of Document, Set One, without objections and within 30 days of service of the notice of ruling.

The Court ORDERS Plaintiff Alex Alfonso Salaverria to serve full, complete, and verified responses to Defendant Sofia Ramsay, RN’s Form Interrogatories, Set One; Special Interrogatories, Set One; and Request for Production of Document, Set One, without objections and within 30 days of service of the notice of ruling.

The court ORDERS that Plaintiff Alex Alfonso Salaverria pay to Defendant Saddleback Memorial Medical Center sanctions in the amount of $840 (3 hours x $220 per hour in reasonable attorney’s fees and $180 in motion filing fees) within 30 days of service of the notice of ruling.

The court ORDERS that Plaintiff Alex Alfonso Salaverria pay to Sofia Ramsay, RN sanctions in the amount of $840 (3 hours x $220 per hour in reasonable attorney’s fees and $180 in motion filing fees) within 30 days of service of the notice of ruling.

Defendant Saddleback Memorial Medical Center, erroneously sued as Saddleback MemorialCare) (Defendant Saddleback) moves to compel Plaintiff Alex Alfonso Salaverria to provide responses to Defendant Saddleback’s Form Interrogatories, Set One; Special Interrogatories, Set One; and Request for Production of Document, Set One.

In addition, Defendant Sofia Ramsay, RN (Defendant Ramsay) move to compel Plaintiff Alex Alfonso Salaverria to provide responses to Defendant Ramsay’s Form Interrogatories, Set One; Special Interrogatories, Set One; and Request for Production of Document, Set One.

Compelling Responses to Interrogatories and Requests for Production

When a party properly propounds interrogatories and the party receiving the interrogatories fails to respond, “[t]he party propounding the interrogatories may move for an order compelling response to the interrogatories.” (Code Civ. Proc., § 2030.290, subd. (b).)

In addition, when a party properly propounds requests for production and the party receiving the requests fails to respond, “[t]he party making the demand may move for an order compelling response to the demand.” (Code Civ. Proc., § 2031.300, subd. (b).)

Further, “[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 on the protection for work product . . . .” (Code Civ. Proc., § 2030.290, subd. (a).)

Similarly, “[t]he party to whom the demand for inspection, copying, testing, or sampling is directed waives any objection to the demand, including one based on privilege or on the protection for work product . . . .” (Code Civ. Proc., § 2031.300, subd. (a).)

Defendant Saddleback and Defendant Ramsay have presented evidence that each of them served form interrogatories, special interrogatories, and request for production of document on Plaintiff on November 1, 2022. (See Decl. of Dilkash A. Khan., ¶ 4.) Despite Defendant Saddleback’s and Defendant Ramsay’s attempts to meet and confer, Plaintiff has not served responses to any of the above discovery requests. (Id., ¶¶ 5-6, Exh. B.)

In addition, Plaintiff has also not filed an opposition to the instant motions to compel responses. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 288 [failure to address or oppose an issue in motion constitutes a waiver on that issue; Wright v. Fireman’s Fund Ins. Companies (1992) 11 Cal.App.4th 998, 1011 [“it is clear that a defendant may waive the right to raise an issue on appeal by failing to raise the issue in the pleadings or in opposition to a . . . motion”].)

The court therefore will grant the motions to compel responses.

Sanctions

The Civil Procedure Code requires the court to impose monetary sanctions against a party, person, or attorney who unsuccessfully makes or opposes a motion to compel “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., §§ 2030.290, subd. (c) & 2031.300, subd. (c).)

California Rules of Court rule 3.1348(a) further provides that “[t]he court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.” (Cal. Rules of Court, rule 3.1348(a).

Plaintiff does not provide substantial justification nor does he point to any other circumstances that would make the imposition of sanctions unjust. The court must grant sanctions in the amount of reasonable attorney’s fees for Defendant Saddleback and Defendant Ramsay to prepare the motions and attend the hearing on the motions, but not to review oppositions or prepare replies.

Defendant Saddleback and Defendant Ramsay shall provide notice of these rulings.