Judge: Ronald F. Frank, Case: 19STCV32547, Date: 2023-04-07 Tentative Ruling
Case Number: 19STCV32547 Hearing Date: April 7, 2023 Dept: 8
Tentative Ruling¿¿
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HEARING DATE: April 7, 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 Heather
Seyfert to Respond to Form Interrogatories, Set One
(2) Motion to Compel Jamie Lu Dominguez to Respond to Form
Interrogatories, Set Two.
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Tentative Rulings: (1) Motion to Compel
Heather Seyfert to Respond to Form Interrogatories, Set One is DENIED.
(2) Plaintiff’s Motion to Compel Jamie Lu Dominguez to
Respond to Form Interrogatories, Set Two 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 and the Dominguez response to
the form interrogatories set no. 1 earlier this week, the Court urges the
parties to draft a proposed 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.
If the parties cannot agree, the Court may consider entering such an order on
its own motion as being in the interests of justice.
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I. BACKGROUND¿¿¿
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A. Factual¿¿¿
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The
Court has previously outlined the factual background of this litigation, why no
meet and confer was conducted, as well as the standards for judging a discovery
motion. They will not be repeated
here.
B. Procedural¿¿¿
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On March 2, 2023, Plaintiff filed a motion to Compel
Heather Seyfert to respond to Form Interrogatories, Set One. On March 22, 2023,
Seyfert filed an opposition brief. Plaintiff’s reply was filed March 30, 2023.
On March 2, 2023, Plaintiff filed a motion to Compel Jamie
Lu Dominguez to respond to Form Interrogatories, Set Two. On March 22, 2023,
Defendant, Jamie Lu Dominguez filed an opposition brief. To date, no reply
brief has been filed.
II. ANALYSIS¿¿
A. Motion to Compel Heather Seyfert to Respond to Form
Interrogatories, Set One
Plaintiff asserts that on January 5, 2021,
prior counsel served a set of form interrogatories on defendant Seyfert. While there is no proof of service attached
to the exhibit plaintiff provided as Exhibit A to the Leonardo Declaration, based
on prior representations of counsel at the discovery hearings to date the Court
assumes the FROGs were served by email. On
February 19, 2021, Defendant Seyfert served an electronic response to Form
Interrogatories, Set One, bearing what Plaintiff contends to be an improper
electronic signature of an attorney who cannot be identified. (Leonardo
Decl., ¶ 3, Ex. B.) Mr. Leonardo’s declaration asserts that the responses to
the FROGs were served on him, but the proof of service attached to Ms.
Seyfert’s responses indicates they were emailed to the law offices of David
Dushane, who was counsel of record for Plaintiffs at the time. The Dordick firm did not substitute into this
case until December 14, 2022, nearly two years after the Seyfert Responses were
e-served on the Dushane firm. There is
no evidence that within 6 months after these discovery responses were e-served
that Mr. Dushane or anyone else acting on Plaintiff’s behalf raised a problem
or concern with the Seyfert responses having been served by email, or that the
verification was not a wet ink signature, or that the failure to serve an
original response was in violation of the Civil Discovery Act.
Plaintiff
contends that the response did not comply with the law because the original
response was not served, but rather only a digital copy was emailed to prior
counsel. Plaintiff asserts in this motion, as it unsuccessfully asserted in
three prior motions heard by this Court, that the verification is a nullity
because it does not support a charge of perjury.
In
opposition, Defendant Seyfert notes that service of the responses to Form
Interrogatories, Set One, by electronic Mail two years ago was appropriate and
timely. Seyfert raises the same arguments in opposition to this motion as it
did to the motion to have RFAs deemed admitted which the Court heard and ruled
upon a week ago. As with the RFA motions
decided by this Court a week ago, and the Motion to Compel Defendant Dominguez
to respond to Form Interrogatories, Set One, earlier this week which presented
the same verification and service by email issues, the Court finds substantial
compliance with the Discovery Act’s requirements for serving timely verified
responses. The Court continues to believe that the fact that the subject
discovery 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.
B. Motion to Compel Jamie Lu Dominguez to Respond to Form
Interrogatories, Set Two
Plaintiff asserts that on November 4, 2022, his current
counsel served a 2nd set of form interrogatories on defendant Dominguez. Although the Leonardo Declaration states that
the 2nd set of form interrogatories is attached as Exhibit A to this
FROG motion to compel, in fact there are Requests for Admission that are
attached, not form interrogatories. Plaintiff asserts that on December 27, 2022, Defendant Dominguez
served an electronic response to Form Interrogatories, Set Two, bearing an
improper electronic signature of an attorney who cannot be identified. However, Exhibit B to the Leonardo
Decl. is the Dominguez responses to RFAs, not FROGs. The Court can overlook the error by counsel or
his paralegal in failing to attach the correct discovery request and response
to this motion, given the number of motions Mr. Leonardo’s office prepared and
filed in a short period of time, and given the fact that the issue raised by
the motion is sufficiently presented by the declaration alone without the
exhibits. Nord did Defendant raise any issue with the
lack of a proper attachment to this discovery motion, indicating the use of the
wrong exhibits was not material to Defendant’s opposition tot eh motion. Plaintiff
contends that the response does not comply with the Civil Discovery Act because
Defendant Dominguez purported to serve the responses by email, and thus no
original response was provided with a wet ink signature on the verification as
required by that Act.
For
the same reasons noted above in the analysis of Plaintiff’s Motion to Compel
Heather Seyfert to Respond to Form Interrogatories, Set One, this motion is also
denied. While Plaintiff is correct that Code of Civil Procedure section
2030.270(b) requires that an agreement to extend the time for service of a discovery
response must be in writing, that section does not require that an agreement
between counsel to serve and accept service of discovery responses by email to
be in writing. On the state of the
record before the Court, the Court determines that the parties reached an
implied-in-fact agreement in 2021 to serve and to accept service of discovery
requests and responses by emailed service, long before the substitution of
attorney of Plaintiff’s counsel was in effect.
It was not unreasonable for defense counsel to rely on the prior implied
in fact agreement among counsel in responding to discovery generated by the Dordick
Law Corporation, who became counsel several years into the discovery phase of
this case. As previously discussed with
the parties, 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 parties also
indicated to the Court that each is providing an updated, wet ink verification,
for each of the discovery responses that have been the subject of these various
motions.
IV. CONCLUSION
For
the foregoing reasons, these two of Plaintiff’s Motions to Compel are DENIED.
Defendants
to give notice.