Judge Randolph M. Hammock, Case Number: 21STCV36077, Date: 2024-05-01 Tentative Ruling

Plaintiff Sylvia Frescas brings this action individually and on behalf of her brother, Pablo Alvarado, as his successor-in-interest. Plaintiff alleges Pablo Alvarado died as a result of the reckless neglect and misconduct of Defendants while a resident of Vernon Healthcare Center.

The Court has the authority to impose sanctions against a party that engages in the misuse of the discovery process. (CCP § 2023.030.) Misuse of the discovery process includes disobeying a court order to provide discovery. (CCP §§ 2023.010(g).) A party engaging in this conduct may be subject to sanctions including monetary, issue, and evidence sanctions. (CCP § 2023.030(a)-(c).)

“[C]ontinuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse. ‘A decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.’” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal. App. 4th 967, 992.)

In deciding whether to impose a terminating sanction, the trial court is to consider the totality of the circumstances: the “conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.” (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.)

Plaintiff moves for evidentiary and monetary sanctions against Defendant, or in the alternative, terminating sanctions. Specifically, Plaintiff seeks sanctions “evidentiary and monetary in nature” that : “1) prohibit Defendant from introducing or relying upon evidence to support or refute the Subject Interrogatories at issue; 2) require Defendant to identify and produce within 45 days Defendant’s employees/witnesses with knowledge responsive to the Subject Interrogatories, identified below; and, 3) require Defendant to pay the costs of said depositions along with reasonable attorneys’ fees for Plaintiff to undertake same.” (Mtn. 1: 13-17.)

On February 16, 2024, this court granted in part and denied in part Plaintiff’s motion to compel further responses to special interrogatories (set one) nos. 7, 10, 87-89, 93, and 124. (See 02/16/24 Minute Order.) At the same hearing, the court granted Plaintiff’s motion to compel further discovery responses to RPDs (set one), no. 13. (Id.)

At the time Plaintiff filed the instant motion on March 21, 2024, Defendant had not served supplemental responses to special interrogatories nos. 7, 10, 87-89, 93, or 124. (See Miller Decl. ¶ 8.) Thus, Plaintiff argues evidentiary and monetary sanctions are warranted due to Defendant’s violation of the February 16, 2024 Order.

Defendant opposes the motion. Defendant states that it served supplemental responses to Plaintiff’s RPDs on March 15, 2024, but concedes that it “inadvertently” failed to serve its supplemental responses to the special interrogatories at that time. Defendant takes issue with Plaintiff filing the instant motion to compel despite “making no attempt to notify [Defendant] of its inadvertent error in failing to timely supplement its response.” (Opp. 1: 23-26.)

Following the filing of this motion, Defendant served supplemental responses to the special interrogatories at issue on March 25, 2024. (Defendant’s Exhibit 5.) Thus, Defendant claims all discovery disputes have been resolved, and sanctions are not warranted based on this inadvertent—not willful—error. Instead, Defendant argues the court should impose monetary sanctions against Plaintiff for her failure to meet and confer before filing this motion.

In reply, Plaintiff recognizes receipt of the supplemental responses, but maintains that they were not “straightforward and complete.” (Reply 2: 25.) Plaintiff also contends Defendant hit Plaintiff with an April 1, 2024 “document dump” of over 3,000 documents, whether “requested or not requested.” Plaintiff contends this evinces Defendant’s disobedience of the court’s order and its discovery obligations.

B. Sanctions are Not Warranted

First, focusing attention to the primary issue raised in the moving papers, it appears that Defendant has responded to the outstanding special interrogatories—albeit after the filing of this motion. Be that as it may, this court’s February 16, 2024, Order did not contain a time requirement for producing the supplemental responses. (See 02/16/24 Minute Order.) Therefore, it is not clear that Defendant did, in fact, actually violate the court order. Accordingly, sanctions of any kind are not warranted.

Second, were any sanction justified, it would be monetary in nature. But even assuming monetary sanctions were appropriate under the circumstances, they are procedurally improper here. “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.” (CCP 2023.040.) In the notice of motion, Plaintiff seeks sanctions against Defendant only, and not Defendant’s counsel. (See Notice of Motion.) Based on the circumstances, this court suspects that the delay or “inadvertence” in failing to provide prompt supplemental responses rests with Defendant’s counsel only. Thus, any request for sanctions needed to be directed toward counsel.

Defendant’s requests for sanctions against Plaintiff based on the failure to meet and confer is also unavailing. While a motion to compel a further response to interrogatories requires a meet and confer, (see CCP 2030.300(b)(1)), there is no such requirement where a party seeks sanctions when the responding party thereafter “fails to obey an order compelling further response to interrogatories.” (See §§ 2030.300(e), 2023.010, 2023.010.)

Finally, whether the supplemental responses to the SROGs are “straightforward and complete” is a separate issue raised for the first time in reply. Plaintiff contends that supplemental responses to SROGS nos. 10, 87, and 88 remain deficient. Plaintiff argues Defendant did nothing to specifically identify the responsive documents, instead referring only generally to “staffing documents” and “medical records.”

The instant interrogatory seeks a summary and/or compilation of information that does not presently exist. As the burden in creating such a summary of information bears equally for all parties, pursuant to Code of Civil Procedure §2030.230, Vernon Healthcare refers Plaintiff to the medical records of Pablo Alvarado from Beverly Hospital, Garfield Medical Center, Vernon Healthcare Center and Kindred Hospital South Bay, which upon information and belief, are currently within Plaintiff’s possession, custody and control. Should Plaintiff not be in possession of such records, Vernon Healthcare will make such records available for inspection and duplication.

Response: In its third supplemental response, Defendant responds: “The medical records of Pablo Alvarado from Beverly Hospital located at 309 W. Beverly Blvd., Montebello, CA, 90640, (323) 726-1222; Garfield Medical Center, 525 N. Garfield Ave., Monterey Park, CA 91754, (626) 573-2222; Vernon Healthcare Center, 1037 W. Vernon Ave., Los Angeles, CA, 90037, (323) 232-4895; Kindred Hospital South Bay, 1246 W. 155th St., Grdena, CA 90247, (310) 323-5330.” (Id. at p. 7.)

Here, while these supplemental responses fail to identify any specific documents, they do, at least, reference generally which documents support Defendant’s position. Defendant has therefore responded to the interrogatories in an adequate (barely) code-compliant manner.