Judge Ronald F. Frank, Case Number: 21STCV26659, Date: 2024-03-28 Tentative Ruling

Judge: Ronald F. Frank, Case: 21STCV26659, Date: 2024-03-28 Tentative Ruling

Case Number: 21STCV26659 Hearing Date: March 28, 2024 Dept: 8

Tentative Ruling¿

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HEARING DATE: March 28, 2024¿¿

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CASE NUMBER: 21STCV26659

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CASE NAME: Maricel Pitcher v. Joseph Fahr, DDS, et al.

MOVING PARTIES: Defendant, Joseph Peyman Fahr, DDS ¿

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RESPONDING PARTY: Plaintiff, Maricel Pitcher

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TRIAL DATE: May 13, 2024

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MOTION:¿ (1) Motion for Terminating Sanctions

Tentative Rulings: (1)ARGUE, with a series of Questions for Plaintiff’s counsel to address

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I. BACKGROUND¿¿

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A. Factual¿¿

On July 20, 2021, Plaintiff, Maricel Pitcher (“Plaintiff”) filed a Complaint against Defendant, Joseph Fahr, DDS (“Fahr”), Beautiful Smile Dental Center, and DOES 1 through 10. The Complaint alleges a cause of action for: Dental Malpractice.

The moving papers assert that on November 15, 2023, Judge Jaskol heard Defendant’s Motion to Compel Further Responses to Special Interrogatories, Set Five, and Requests for Production of Documents, Set Five, and Requests for Sanctions. In that order, Judge Jaskol noted that on April 28, 2022, the Court granted Defendant’s motions to compel further discovery responses, and ordered Plaintiff to serve further discovery responses and pay Defendant $2,600 in sanctions by May 26, 2022. However, on July 6, 2022, Judge Jaskol found that Plaintiff had not fully complied with Court’s April 28, 2022 order, and subsequently ordered Plaintiff to provide verified responses to Special Interrogatories Nos. 12 and 14 and code-compliant responses to Requests for Production Nos. 1, 3, 4, and 11 by July 21, 2022. In addition, Judge Jaskol ordered Plaintiff and her counsel to pay Defendant $2,510 in sanctions by August 6, 2022, but denied Defendant’s request for terminating sanctions.

On September 29, 2023, Judge Jaskol again found that Plaintiff had not complied with the Court’s April 28, 2022 order to pay Defendant $2,600 in sanctions by May 26, 2022 and had not shown good cause or substantial justification for the failure to pay these amounts. Judge Jaskol further granted Defendant’s request to impose additional sanctions to penalize Plaintiff for disobeying this Court’s April 28, 2022 order and ordered Plaintiff to pay the Court $500 in sanctions by October 30, 2023.

In Judge Jaskol’s November 15, 2023 order, the Court again granted Defendant’s motion to compel further responses to Special Interrogatories, Set Five for Requests Nos. 76 and 77 as well as Request for Production of Documents, Set Five and ordered Plaintiff to provide further verified code-complaint responses to RFP Nos. 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, and 94 and to produce the documents, electronically stored information, and/or other things requested by December 18, 2023. Further, Judge Jaskol granted Defendant’s Request for Sanctions against Plaintiff and her counsel in the amount of $1,870. However, Defendant contends that Defense counsel and Plaintiff’s counsel had a follow up discussion on November 16, 2023, and then a follow up correspondence on November 29, 2023, and then again on January 4, 2024. Despite these follow-up communications, Defendant asserts that none of the responses Plaintiff was ordered to serve in the November 15, 2023 Order have been served on Defendant, nor the monetary sanctions as of the date of the filing of the motion.

The case was reassigned by the PI Hub Court to Inglewood Department 8 on February 27, 2024, with the case then set for trial a month later, on March 28, 2024. Department 8 briefly postponed the trial in light of the pending discovery and sanctions motion.

As such, Defendant Fahr now files a Motion for Terminating Sanctions seeking the following orders:

1. A terminating sanction in favor of Defendant and against Plaintiff MARICEL PITCHER, dismissing with prejudice the Los Angeles Superior Court Case No. 21STCV26659 as to all parties and all Causes of Action. Alternatively, a terminating sanction in the form of an order staying further proceedings until Plaintiff has complied with the Court’s 11/15/2023 Orders;

2. An issue sanction deeming established the following facts: a) Defendant did not breach the standard of care in treating Plaintiff; b) Defendant did not cause or exacerbate any injury or damage to Plaintiff; and c) Plaintiff did not suffer any damages as a result of any act or omission by Defendant. Alternatively, an issue sanction prohibiting Plaintiff from supporting her claims that: a) Defendant breached the standard of care in treating Plaintiff; b) Defendant caused or exacerbated injury or damage to Plaintiff; and c) Plaintiff suffered damages as a result of any act or omission by Defendant;

3. An evidentiary sanction precluding Plaintiff from introducing evidence on the issues of standard of care, duty, breach, causation, and damages; and

4. A monetary sanction against Plaintiff and her attorney of record, Stanley D. Bowman, Esq., in the amount of $2,790.

B. Procedural¿¿

On February 1, 2024, Defendant Fahr filed a Motion for Terminating Sanctions. On February 14, 2024, Plaintiff filed an opposition brief. On February 20, 2024, Defendant Fahr filed a reply brief.

¿II. ANALYSIS¿

A. Legal Standard

If a party fails to comply with a court order compelling discovery responses or attendance at a deposition, the court may impose monetary, issue, evidence, or terminating sanctions. Code Civ. Proc. § 2025.450, subd. (h) (depositions); § 2030.290, subd. (c) (interrogatories); § 2031.300, subd. (c) (demands for production of documents); § 2033.290, subd. (e) (requests for admission). Code of Civil Procedure section 2023.030 provides that, “[t]o the extent authorized by the chapter governing any particular discovery method . . . , the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose . . . [monetary, issue, evidence, or terminating] sanctions against anyone engaging in conduct that is a misuse of the discovery process . . .” Section 2023.010 provides that “[m]isuses of the discovery process include, but are not limited to, the following: . . . (d) Failing to respond or to submit to an authorized method of discovery. . . (g) Disobeying a court order to provide discovery. . .”

“The trial court may order a terminating sanction for discovery abuse ‘after considering 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.’” (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390, quoting Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) “Generally, ‘[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.’” (Los Defensores, supra, 223 Cal.App.4th at p. 390 [citation omitted].)

“Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders.” (Id., citing Lang, supra, 77 Cal. App. 4th at pp. 1244-1246 [discussing cases]; see, e.g., Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617-1622 [terminating sanctions imposed after defendants failed to comply with one court order to produce discovery]; Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 491, disapproved on other grounds in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, n. 4 [terminating sanctions imposed against plaintiff for failing to comply with a discovery order and for violating various discovery statutes].)

Discussion

Here, Defendant argues that good cause exists for terminating sanctions because Plaintiff has failed to comply with a court order, and this is not the first time this issue has occurred, despite numerous occasions of monetary sanctions.

In opposition, Plaintiff contends that after receiving Defendant’s meet and confer letter and prior to the hearing scheduled for November 15, 2023, Plaintiff corrected her responses to the production of documents 67, 68, and 71-73 to include the language that “Plaintiff made a reasonable inquiry” and serve them on defendant’s counsel on September 28, 2023. Plaintiff also asserts that at the November 15, 2023 hearing, Plaintiff’s attorney informed the court that the production of documents had already been corrected and sent to defendant’s counsel, and that Defendant’s counsel admitted receiving the additional responses from Plaintiff, but claimed the responses were the exact same as the precious responses without the additional language. In response, Plaintiff contends that the Court ordered that Plaintiff again send the responses and documents to defendant’s counsel. Plaintiff contends that on November 28, 2023, a flash drive with the documents being produced and the Plaintiff’s responses to the requests for production of documents, set 5 was sent to defendant’s counsel. Further, Plaintiff asserts that her counsel and defendant’s counsel have had communications since the November 2023 hearing, but that it was not until Plaintiff received Defendant’s current motion that Plaintiff had knowledge that defendant maintains he did not receive the responses and documents sent by Plaintiff in November 2023.

As noted in Defendant’s reply brief, it is impossible for Plaintiff to have complied with a court order to produce documents if the documents were never sent. Plaintiff argues that said documents “can be available” to this Court for inspection, however, they were not provided by Plaintiff in or attached to the opposing papers. The Court takes issue with the numerous outstanding sanctions previously ordered by this Court as far back as April 28, 2022. Because this case was recently transferred to this Court, and this Court has not previously ruled on this discovery motion (unlike the extensive rulings from Judge Jaskol), this Court needs more information before deciding what path to take going forward. Because the documents in question were not provided to this Court, or proven to be delivered to Defendant, the Court is in a quandary between knowing if there are willful misuses or the discovery process, sloppiness in substantiation that certain things were done or not done on certain dates, or a simple miscommunication between counsel.

For oral argument on this motion, the Court will require Mr. Bowman to address the following:

1. Did Mr. Bowman, as counsel or record, sign the discovery responses?

2. Did Mr. Bowman, as counsel of record, have the responsive documents sequentially numbered by Bates stamp, digital equivalent of Bates stamping, or some other method?

3. Explain why the responsive documents with a proof of service were not attached to the Opposition, given the severity of sanctions sought?

4. Why were the discovery responses and the production of documents not served on defense counsel by email?

5. Is there a proof of service for the November 2023 production of documents?

6. Does the verified written response to the RFP specify, by Bates number or otherwise, which documents are responsive to which Request?

7. What proof of payment of the monetary sanctions can counsel of record provide here?

8. Should the Court vacate or continue the trial date until full compliance with Judge Jaskol’s prior orders can be established?