Judge: Ronald F. Frank, Case: 19STCV32547, Date: 2023-04-11 Tentative Ruling
Case Number: 19STCV32547 Hearing Date: April 11, 2023 Dept: 8
Tentative Ruling¿¿
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HEARING DATE: April 11, 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) Plaintiff’s Motion to Compel
Jamie Lu Dominguez to Special Interrogatories, Set One.
(2)
Plaintiff’s Motion to Compel Jamie Lu Dominguez to Respond to Demand for
Production of Documents, Set One.
(3)
Plaintiff’s Motion to Compel Jamie Lu Dominguez to Respond to Demand for
Production of Documents, Set Two.
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Tentative Rulings: (1) Denied, as per previous rulings
and given Dominguez’ tender of wet ink original verification and original responses
(2)
Denied, as per previous rulings and
given Dominguez’ tender of wet ink original verification and original responses
(3)
Denied, as per previous rulings and
given Dominguez’ tender of wet ink original verification and original responses
I. ANALYSIS¿¿
A. Motion to Compel Jamie Lu Dominguez to Respond to Special
Interrogatories, Set One
Plaintiff notes that on November 3, 2021, Plaintiff through prior
counsel Mr. Dushane served Special Interrogatories, Set One on Defendant
Dominguez. Plaintiff further contends that on December 27, 2022, Defendant
Dominguez served an e-mailed response to the Special Interrogatories, Set One,
along with a verification dated 3 days earlier, December 24, 2021. (Decl.
of Leonardo, ¶ 3, Ex. B.) Plaintiff contends that the
response does not comply with Section 2030.260(a) of the Civil Discovery Act
because the purported original response was not an ”original,” but rather was a
an electronic copy. Plaintiff argues 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 because the Civil Discovery Act requires
Dominguez to serve the original response under oath, and that Defendant
Dominguez retained the original responses that the law required to be served in
person or by mail, the response and verification are invalid and thus Dominquez
has waived any right to assert objections.
In
opposition, Defendant Dominguez notes that service of the responses to Form
Interrogatories, Set One, was done timely by electronic Mail, as every prior discovery
request and response had been done while Mr. Duchane was representing the Plaintiff. The Court has previously made a finding that
there was an implied in fact agreement among the parties to this case to permit
service of both discovery requests and responses by email. While Dominguez cites to California Rules of
Court, Rule 2.251, providing that electronic mail service is permissible, Plaintiff’s
Reply brief correctly points out that Rule 2.251 does not specifically include discovery
responses within the ambit of documents to be served by email. But an agreement of the parties trumps
Plaintiff’s argument regarding the CCP and Rule of Court provisions cited by Dominguez. The Court notes that as to the special interrogatories,
there is no proof of service attached to the Duchane Office’s discovery
requests, but there is a proof of service by email attached to both document
demand set #1 and set #2, signed under penalty of perjury by Teresa Burke stating
that such method of service was “Based on a court order or an agreement of the parties
to accept service by email or electronic transmission ….” This corroborates the Court’s prior finding
that such an agreement existed between the Duchane Firm and defense counsel,
and possibly that the parties operated under General Order 2020-GEN-023-00 paragraph
1(c) regarding electronic service (“the Court orders all parties who use
electronic filing to accept electronic service, except in those circumstances
when personal service is required by law or where any of the parties are self-represented”).
Lastly,
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
Special Interrogatories, Set One, were signed by counsel and e-served. However,
Dominguez notes that she now lives in, and signed the verification in,
Honolulu, Hawaii, on December 24, 2022, and the next two days, December 25 and
December 26, were legal holidays. Defendant Dominguez also notes that the
responses to Special Interrogatories, Set One, were signed and served on
December 27, 2022, and that the responses signed by Defendant Dominguez on
December 24, 2022, are the same ones that were served on December 27, 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, although that service was accomplished by email. The Court’s view continues to be that Dominguez’s
responses substantially complied with the spirit of the Civil Discovery Act in
light of the parties’ agreement through counsel to serve each other with discovery
requests and responses, as well as pleading that were to be filed with the court,
by email, and 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 previous tentative rulings and in oral
argument hearings, 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 Section 1(c) regarding
electronic service during the COVID-19 pandemic; Rule of Court 2.251; CCP §
1010.6; LASC First Amended General Order (5/3/2019).) Further, prior to Dominguez’ service of the emailed
verified responses at issue in this motion, neither Plaintiff nor her present nor
former counsel withdrew the Duchane firm’s prior consent for electronic
service. Further still, Dominguez’ counsel has represented
at prior hearings on other discovery motions raising all these same issues
that, in light of the Dordick Law Corporation’s raising of these concerns,
Dominguez has now tendered new, wet ink verifications and personally or by mail
served the original responses on Mr. Leonardo.
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 has
in previous rulings.
Accordingly,
the Motion to Compel original verified responses to the Special Interrogatories
is DENIED, as is the motion for determination that Dominguez has waived the right
to assert objections to those interrogatories.
B. Motion to Compel Jamie Lu Dominguez to Respond to Demand for
Production of Documents, Set One
Plaintiff notes that on May 20, 2021, Plaintiff through her prior
counsel served Demand for Production of Documents, Set One on Defendant
Dominguez. Plaintiff further contends that on November 30, 2022, Defendant
Dominguez served an electronic response to the Special Interrogatories, Set
One. (Decl. of Leonardo, ¶ 3, Ex. B.) Plaintiff
contends the same shortcoming and defects exist with respect to RFP#1 as exist
with respect to Dominguez’ responses to the special interrogatories discussed
above. For the same reasons re-summarized
above, the Court DENIES the Motion to Compel original verified responses to the
1st ret of RFPs to Dominguez, as is the motion for determination that
Dominguez has waived the right to assert objections to those document demands.
C. Motion to Compel Jamie Lu Dominguez to Respond to Demand for
Production of Documents, Set Two
Plaintiff notes that on November 4, 2022, Plaintiff served Demand for
Production of Documents, Set Two on Defendant Dominguez. Plaintiff further
contends that on December 27, 2022, Defendant Dominguez served an electronic
response to the Special Interrogatories, Set Two. (Decl. of Leonardo, ¶
3, Ex. B.) Plaintiff contends the same shortcoming and
defects exist with respect to RFP#2 as exist with respect to Dominguez’
responses to the special interrogatories and RFP#1 discussed above. For the same reasons re-summarized above, the
Court DENIES the Motion to Compel original verified responses to the 2nd ret of
RFPs to Dominguez, as is the motion for determination that Dominguez has waived
the right to assert objections to those document demands.
IV. CONCLUSION
For
the foregoing reasons, these three of Plaintiff’s Motions to Compel are DENIED.
Counsel
for Dominguez to give notice of the rulings.