Judge: Ronald F. Frank, Case: 19STCV32547, Date: 2023-04-05 Tentative Ruling

Case Number: 19STCV32547    Hearing Date: April 5, 2023    Dept: 8

Tentative Ruling¿¿ 

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HEARING DATE:                 April 5, 2023

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CASE NUMBER:                  19STCV32547

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CASE NAME:                        Erica H. Leventhal, a minor, by and through her Guardian Ad Litem Cornelia A.R. Pechmann v. Select Medical Holdings Corporation, Inc., et al

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MOVING PARTY:                Plaintiff, Erica H. Leventhal 

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RESPONDING PARTY:       Defendants, Heather Seyfert, PT, and Physiotherapy Associates, Inc. DBA Select Physical Therapy, and Defendant, Jamie Lu Dominguez sued as DOE 1,

TRIAL DATE:                        July 7, 2023

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MOTION:¿                              (1) Motion to Compel Jamie Lu Dominguez to Respond to Form Interrogatories, Set One.

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Tentative Rulings:                  (1) Plaintiff’s Motion to Compel Jamie Lu Dominguez to Respond to Form Interrogatories, Set One. Is DENIED.

Since the parties declined the Court’s invitation to stipulate to a resolution of this and other pending discovery motions that raise the same issues as the RFA motions last week, the Court will consider making an Order expressly permitting service by email of all pleadings, discovery requests, discovery responses, as well as any other documents to be filed with the Court, on a retroactive and going forward basis.  The Court will entertain oral argument as to why it should not enter such an Order in this case.  The Court tentatively will direct that counsel for Seyfert prepare such a proposed order, provide the draft proposed order to Plaintiff’s counsel, and refrain from transmitting the same to the Court for a 5-day period to allow Plaintiff’s counsel a reasonable opportunity to discuss modifications to the proposed order or to prepare an objection to the proposed order.

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I. BACKGROUND¿¿¿ 

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A. Factual¿¿¿ 

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On September 13, 2019, Plaintiff Erica H. Leventhal, a minor by and through her guardian ad litem, Cornelia A.R. Pechmann (“Plaintiff”), filed a complaint against Select Medical Holdings Corporation, Inc., Select Physical Therapy, Novacare Rehabilitation Health Services, Inc., and Heather Seyfert for (1) battery, (2) fraud, and (3) negligence. On February 21, 2020, the court overruled defendants Physiotherapy Associates, Inc., Select Medical Holdings Corporation, Inc., and Heather Seyfert’s demurrer as to the 1st cause of action for battery and sustained it without leave to amend as to the 2nd cause of action for fraud. The court granted the motion to strike in its entirety. On December 1, 2020, plaintiff filed an amendment designating Jamielu Dominguez as Doe 1. On February 22, 2021, plaintiff filed an amendment designating Physiotherapy Associates, Inc. dba Select Physical Therapy as Doe 2. On March 23, 2021, plaintiff filed a FAC for (1) battery and (2) negligence. On May 18, 2021, the Court sustained with leave to amend defendant Jamie Lu Dominguez’s demurrer to the 1st cause of action for battery in the FAC. The Court granted Plaintiff’s motion for leave to file a Second Amended Complaint on March 8, 2023, reserving a hearing date on defendants’ intended demurrer for April 20, 2023. 

Plaintiff’s motion states that on March 26, 2021, Plaintiff served Form Interrogatories, Set One on Defendant Dominguez. (Leonardo Decl., ¶ 2, Ex. A.) On November 30, 2022, Defendant Dominguez served an electronic response to Form Interrogatories, Set One, with a verification dated November 20, 2023, ten days earlier. Plaintiff also claims the responses bore an improper electronic signature of an attorney who cannot be identified because of the penmanship used. (Leonardo Decl., ¶ 3, Ex. B.)

B. Procedural¿¿¿ 

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On March 2, 2023, Plaintiff e-filed a motion to Compel Jamie Lu Dominguez to respond to Form Interrogatories, Set One. On March 22, 2023, Defendant, Jamie Lu Dominguez e-filed an opposition brief.  Plaintiff’s reply brief was e-filed on March 30, 2023.

III. MEET AND CONFER

Plaintiff argues that there is no obligation to Meet and Confer because, as the motion argues, there was never a properly verified or served written response to the form interrogatories, and thus the 45-day clock to move to compel further responses did not begin to run.  Plaintiff contends that Defendant Dominguez’s failure to respond to the Form Interrogatories, Set One, with an original, wet ink, verified response, renders the response a nullity.  The Court relieves Plaintiff from the meet and confer obligation for this motion, given the nature of the foregoing argument which the Court finds to have substantial justification.

III. ANALYSIS¿¿ 

A.    Legal Standard

 A party must respond to interrogatories within 30 days after service. (Code Civ. Proc., § 2030.260, subd. (a).) If a party to whom interrogatories are directed does not provide timely responses, the requesting party may move for an order compelling responses to the discovery. (Code Civ. Proc., § 2030.290, subd. (b).) The party also waives the right to make any objections, including one based on privilege or work-product protection. (Code Civ. Proc., § 2030.290, subd. (a).) There is no time limit for a motion to compel responses (as distinct from further responses) to interrogatories, other than the cut-off on hearing discovery motions 15 days before trial. (Code Civ. Proc., § 2024.020, subd. (a); Code Civ. Proc., 2030.290.) No meet and confer efforts are required before filing a motion to compel an initial response to the discovery. (Code Civ. Proc., § 2030.290; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411.)

B.     Discussion

Plaintiff asserts that on November 30, 2022, Defendant Dominguez served an electronic response to Form Interrogatories, Set One, bearing an improper electronic signature of an attorney who cannot be identified. (Leonardo Decl., ¶ 3, Ex. B.) Plaintiff contends that the response does not comply with the Civil Discovery Act because the purported original response was not served, and instead, it was an electronic copy. Plaintiff also notes that the verification is a nullity because, since it is not a wet ink original, it would not support a charge of perjury. Plaintiff contends that the Civil Discovery Act requires Dominguez to serve the original response under oath, and that Defendant Dominguez’s verification cannot support the criminal charge for perjury because the original was not delivered but instead, was retained by the responding party.

In opposition, Defendant Dominguez notes that service of the responses to Form Interrogatories, Set One, was done timely by electronic Mail. Defendant Dominguez cites to California Rules of Court, Rule 2.251, providing that electronic mail service is appropriate. Defendant Dominguez also asserts that contrary to Plaintiff’s assertions, Defendant Dominguez’s verification is not made on information and belief. Defendant Dominguez included the verification in her opposition brief noting the verification read as follows:

VERIFICATION

I declare that I am a defendant in the above-entitled action; that I have read the foregoing defendant Jamie Lu Dominguez's responses to plaintiff Erica H. Leventhal's form interrogatories (set no. one), and know its contents; and I declare that the matters stated in the foregoing document are true of my own knowledge, except as to the matters which are stated on my information or belief, and as to those matters I believe them to be true.

"I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct to the best of my knowledge." [Dominguez verification, plaintiff's Exhibit "B," emphasis added.]

            Defendant Dominguez’s counsel notes that nowhere in the response to Form Interrogatories, Set One, are her responses made on information and belief.

            Lastly, Defendant Dominguez contends that the verification is timely dated. Defendant notes that Plaintiff’s criticism of the response and verification is that the verification is “ineffective” because it was signed and dated days before the response to Form Interrogatories, Set One, were signed by counsel and e-served. However, Defendant Dominguez notes that Defendant Dominguez now lives in, and signed the verification in, Honolulu, Hawaii, on Sunday November 20, 2022, the following week was Thanksgiving, and the response to Form Interrogatories, Set One, was signed by counsel and served on November 30, 2022.  Defense counsel, Mr. Yarvis, stated that the responses Ms. Dominguez verified on November 20, 2022, are the same ones that were served on November 30, 2022. (Yarvis Decl., 1:19-20.]

            As with the RFA motions decided by this Court a week ago, which presented the same verification and service by email issues, the Court finds sufficient evidence to show that the responding party substantially complied with the Discovery Act’s requirements for serving timely verified responses.  The record is clear that Ms. Dominguez served verified responses to Plaintiff well before this motion was made. Plaintiff’s contention regarding the “information and belief” language is without merit given that a review of Exhibit B to the moving papers (Ms. Dominguez’s form interrogatory responses) none of Ms. Dominguez’s responses indicate they are made on information and belief.  The Court notes that per evidence presented without dispute at last week’s RFA motions hearing, Plaintiff herself made a verification for prior discovery responses (through prior counsel) using the same “information and belief” language.  The purported lack of an original of Dominguez’s responses is not a particularly meaningful ground for a discovery motion in this Court’s judgment when Plaintiff herself served an electronic copy of the discovery requests at issue or where there is no indication that the Dominguez responses or her verification to the same are not what they purport to be.

As the Court advised the parties in its tentative ruling and the oral argument on the RFA motion last week, the fact that Ms. Dominguez’s responses were an electronic copy emailed to Plaintiff’s counsel rather than a paper version with a wet ink signature sent by mail is an emphasis of form over substance, especially when electronic discovery, electronic service, and electronic filing and service are expressly authorized by local general orders and the Rule of Court; e-service is now the norm. (See General Order 2020-GEN-023-00 regarding electronic service during the COVID-19 pandemic; Rule of Court 2.251; CCP § 1010.6; LASC First Amended General Order (5/3/2019).) It is also a dubious argument given that Plaintiff’s former counsel electronically served original discovery requests to Seyfert’s attorneys as reflected in Seyfert’s counsel’s declaration in support of the opposition to the RFA motions, and as stated by Dominguez’s counsel’s declaration in opposition to this motion (Yarvis Decl. ¶ 3).  The fact that parties by their conduct consented to service of discovery documents (including verified discovery responses) indicates to the Court that an implied in fact agreement exists among the parties to permit and consent to mutual service of discovery requests and discovery responses consistent with the spirit of General Order 2020-GEN-023-00 and Rule of Court 2.251.  “Neither Plaintiff nor her counsel has withdrawn consent for electronic service.”  (Yarvis Decl. ¶ 3.) 

With respect to Plaintiff’s contention that there is something wrongful about the fact that the verification antedates the date next to defense counsel’s dated signature on the discovery responses, the Court rejects that argument as it did with respect to the RFA motions last week. 

While Plaintiff is correct that Code of Civil Procedure section 2030.270(b) requires deviations for the Civil Discovery Act to be confirmed in writing, the Court determines that the parties made such a confirmation in a series of writings by mutually sending and receiving discovery requests and responses by email with former Plaintiff’s counsel.  The Court will permit Plaintiff, or Defendants, to use the e-mailed verified discovery responses for all purposes in this case as if they had been served by mail or in person with wet ink signatures on the verification page, in the absence of any evidence that the signatures are forged or are otherwise not the attesting party’s signature.  See Evidence Code §§ 1550, 1553. 

The Court will consider oral argument at the hearing on this motion as to the timing of any planned motion to compel further responses to the first set of form interrogatories given the employment of a number of objections in Ms. Dominguez’s verified responses, such that Plaintiff will have a fair opportunity to meet and confer on that issue now that the Court has determined that the objections were timely asserted.