Judge Ronald F. Frank, Case Number: 21STCV33265, Date: 2025-01-31 Tentative Ruling

Judge: Ronald F. Frank, Case: 21STCV33265, Date: 2025-01-31 Tentative Ruling

Case Number: 21STCV33265 Hearing Date: January 31, 2025 Dept: 8

Tentative Ruling

HEARING DATE: January 31, 2025

CASE NUMBER: 21STCV33265

CASE NAME: Plaintiff Doe v. Innovative Fertility Center, et al.

MOVING PARTY: Defendants, Innovative Fertility Center, Mark J. Rispler, M.D.

RESPONDING PARTY: Plaintiff, Plaintiff Doe

TRIAL DATE: March 24, 2025

MOTION: (1) Motion for Terminating, Evidence or Issue Sanctions or, in the alternative, for an order compelling Plaintiff to Comply with a Court Order for a Defense Mental Health Examination and for Monetary Sanctions against Her and Her Counsel in the Amount of $13,226.94

Tentative Rulings: (1) Defendants’ Motion for Terminating, evidence, or issue sanctions is DENIED but the alternative motion for monetary sanctions is GRANTED pending further information as to the $13,226.94 claimed cost. Moreover, Plaintiff and/or Plaintiff’s counsel is ordered to pay Defense counsel attorney’s fees in the amount of $1,125 on or before February 21, 2025.

I. BACKGROUND

A. Factual

Plaintiff Doe filed this action against Defendants Innovative Fertility Center, Mark J. Rispler (collectively “Defendants”), and Does 1-50 on September 9, 2021. On November 15, 2021, Plaintiff filed a First Amended Complaint (“FAC”) against Defendants alleging the following causes of action: (1) Battery; (2) Sexual Assault; (3) Medical Negligence; and (4) Intentional Infliction of Emotional Distress. These causes of action are based on Plaintiff’s allegation that on October 1, 2019, during her medical appointment with Mark J. Rispler, M.D., that he intentionally and inappropriately used the transvaginal ultrasound wand in a sexual nature as he was performing the exam.

On October 9, 2024, this Court granted Moving Defendants’ Motion to Compel Plaintiff to undergo an Independent Mental Examination. Specifically, the Court authorized the three (3) listed tests, but limited the duration of the psychological interview to approximately four total hours including breaks. On that same day, Defense counsel sent an email to Plaintiff’s counsel to initiate the meet and confer process regarding selecting a date and location for the examination. Defense counsel states that in light of Plaintiff’s counsel’s representation at the hearing on the motion that Plaintiff intended to challenge the order by writ petition or appeal, it was

recommended the examination take place during the week of December 9, 2024 or December 16, 2024.

Defendants indicate that Plaintiff’s counsel was asked to advise Defense counsel if his client would be available during that time and, if not, to propose alternative dates as soon as possible. Defense counsel noted that the Defendants would secure a location of a psychology office in the South Bay or, alternatively, a conference room at one of the hotels in Long Beach, where it is understood that Plaintiff resides, if Plaintiff would prefer that. Plaintiff’s counsel was asked to respond no later than Monday, October 14, so that Defendants could prepare an order to submit to the court. After receiving no response, Defense counsel followed up on October 13, 2024, asking Plaintiff’s preferences regarding the location for the examination as well as dates between December 9, 2024 and December 20, 2024.

On October 15, 2024, Defense counsel had still not heard back from Plaintiff’s counsel, so Defense counsel sent another email stating that because he had failed to respond to the meet and confer requests, Defendants would be filing an ex parte application on October 16, 2024, for hearing on Thursday, October 17, 2024, at 8:30 a.m., to set a date and location for the examination. After Plaintiff’s counsel failed to respond to that email, Defendants applied ex parte on October 17, 2024, and obtained an order setting December 16, 2024 date for the examination. On the proposed order submitted by Defendants and signed by the Court on October 17, 2024, this Court, in response to Plaintiff’s counsel’s representation that a writ petition would be filed, added by hand:

“10. In the event that the pending writ is granted or supersedes this order or the prior orders, the interview date/time can be changed to suit the parties’ convenience.”

(Court Order, filed 10/18/24, Exh. “D.”)

Defendants note that as of December 10, 2024, no petition for writ of mandate had been filed on Plaintiff Doe’s behalf. Defense counsel, by email on that same date, sought to confirm Plaintiff Doe’s appearance at the examination. However, having not received a response from Plaintiff’s counsel, defense counsel again, sought on December 11, 2024, to confirm Plaintiff Doe’s appearance at the examination. While a writ petition was ultimately filed AFTER the December 16 date, it was summarily denied by the Second District, Case No. B342948.

On December 11, 2024, Plaintiff’s counsel responded by stating: “Our writ is being filed by Friday.” However, Defendants confirm that by Friday, December 13, 2024, the writ had not been filed. Subsequently, on December 16, 2024, Plaintiff did not appear for the court-ordered examination.

Thus, Defendants have filed this Motion for Terminating, Evidence or Issue Sanctions or, in the alternative, for an order compelling Plaintiff to Comply with a Court Order for a Defense Mental Health Examination and for Monetary Sanctions against Her and Her Counsel in the Amount of $13,226.94.

B. Procedural

On December 23, 2024, Moving Defendants filed this Motion. On January 17, 2025, Plaintiff filed an opposition brief. On January 24, 2024, Moving Defendants 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].)

Upon finding a party has engaged in a misuse of the discovery process, the trial court has discretion to order an issue sanction. (Code Civ. Proc., § 2023.030 (b).) Such sanctions may designate facts that shall be taken as established in the action in accordance with the claim of the party adversely affected by a misuse of the discovery process. (Ibid.) Discovery sanctions are matters squarely within the trial court’s discretion and will not be returned except instances of extreme abuse. A terminating sanction is an extreme remedy; it is only justified where a violation is preceded by a history of abuse and less severe sanctions would fail to produce compliance. (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280 (Mileikowsky).) A movant seeking discovery sanctions based on the alleged spoliation of

evidence proceeds by showing a prima facie case that the respondent destroyed evidence which had a substantial probability to establish an element of the movant’s defense. (Williams v. Russ (2008) 167 Cal.App.4th 1215, 1226 (Williams).) The burden then shifts to the respondent to show otherwise. (Ibid.)

B. Discussion

From the presentation made in the moving papers, Plaintiff, in violation of this Court’s October 18, 2024 order, failed to appear for her court-ordered examination.

Plaintiff’s counsel, in the opposition brief, argues that the very language of the October 18, 2024 Court order embodies this Court’s authorization to continue the examination date to a date in the future if the writ was pending at the time of the mental exam. The Court disagrees and emphasizes the language following, which states “[i]n the event that the pending Writ is granted or supersedes this Order…” This language would suggest that the writ would need to be granted or supersede the Court’s order in order to change the date of the examination. However, even if this Court were to read its own order the way Plaintiff does, it would not be any more helpful to Plaintiff’s position. The Court’s order refers to a “pending writ.” However, Plaintiff concedes that the writ of mandate was not filed by Plaintiff until December 20, 2024 – four (4) days after Plaintiff was ordered to sit for her examination. Thus, there was no writ that could have even been pending prior to Plaintiff’s scheduled examination date.

Plaintiff asserts in the Opposition that due to some technical filing issues as well as formatting issues, Plaintiff was required to re-file the writ multiple times, only being accepted by the Court of Appeals for the Second District on December 24, 2024. Somehow, Plaintiff’s counsel places the blame for his failure to communicate any of this information with Defense Counsel. Despite this Court’s previous orders requiring Plaintiff’s counsel to meet and confer with Defense counsel regarding the setting of a date and time for the examination, Plaintiff’s counsel only responded once – on December 11, 2024 – stating that a writ would be filed by December 13, 2024, which it was not. Plaintiff’s counsel could have communicated with Defense counsel during his supposed trial in another matter originally set for December 9, 2024, but subsequently scheduled voir dire for December 16, 2024. Nothing in either parties’ moving, opposing, or reply papers suggest that Plaintiff’s counsel reached out to Defense counsel at any time to express that the writ would be filed later than December 13, 2024.

This Court only grants motions for terminating, evidence, or issue sanctions in extreme cases where multiple Court orders have been violated. While the Court does not find good cause at this time for terminating, evidence, or issue sanctions at this time, the Court warns Plaintiff’s counsel that this is now the second violation of a Court order regarding the setting of a date and time for this examination. Thus, the Court DENIES the Motion for terminating, evidence, or issue sanctions but imposes a lesser sanction.

The Court finds good cause to GRANT the Motion for Monetary Sanctions. Defendants have requested monetary sanctions in the amount of $13,226.94. The Court requests further information from Defense counsel as to how that number was calculated. Thus, the Court’s ultimate awarding of monetary sanctions will be decided after oral argument.

In addition to the $13,226.94 in monetary sanctions, Defense counsel has also requested $2,250 in attorney’s fees be awarded. This amount is based on the declaration of N. Denise Taylor (“Taylor Decl.”) where it is stated that Defense counsel’s office has spent roughly 6 hours in preparing the motion, allocates an anticipated 2 hours preparing a reply brief to any opposition, and an anticipated 1 hour for remotely attending the hearing on the motion. (Taylor Decl., ¶ 24.) Taylor and Taylor’s co-counsel’s hourly rate is $250. The Court grants Defendants’ request for attorney’s fees, but lowers the amount based on the Court’s assessment of the number of hours it reasonably should have taken to prepare the moving papers. Plaintiff and/or Plaintiff’s counsel is ordered to pay Defense counsel attorney’s fees in the amount of $1,125 on or before February 21, 2025.

III. CONCLUSION

For the foregoing reasons, Defendants’ Motion for Terminating, evidence, or issue sanctions is DENIED, but the alternative motion for monetary sanctions in the amount is GRANTED in an amount to be decided at the hearing, and Plaintiff and/or Plaintiff’s counsel is ordered to pay Defense counsel attorney’s fees in the amount of $1,125 on or before February 21, 2025.

Defendants are ordered to give notice.