Judge Stephen Morgan, Case 21AVCV00534 2023-04-11 Tentative Ruling

If parties are satisfied with the tentative ruling, parties may submit by emailing the courtroom at ATPDeptA14@LACOURT.ORG.

If a matter is also scheduled for a CMC, TSC, OSC, etc., an appearance is still required even if the parties are willing to submit on the tentative ruling.

This is a medical malpractice claim. Plaintiffs Vincent Dino (“Vincent”[1]) and Debbie Dino (“Debbie” and collectively “Plaintiffs”) allege that on or around June 30, 2020, Dino was admitted to Defendant Lancaster Hospital Corporation dba Palmdale Regional Medical Center (“Defendant”) for what he perceived as a cardiac issue presenting as chest pressure and dizziness. Plaintiffs further allege that: (1) at the time of Vincent’s admission and following, Defendant provided inadequate staffing levels; (2) in the process of discharge, Vincent was discharged against hospital protocol, policies, procedures, and the standard of care, and was left standing unaided and unassisted outside of Defendant’s hospital building; (3) while alone outside, Vincent fell; and (4) Debbie arrived to Defendant’s hospital building and found Vincent injured, incapacitated, and lying on the sidewalk.

On June 30, 2021, Plaintiffs filed their Complaint alleging two causes of action for (1) Medical Negligence, and (2) Loss of Consortium.

On August 15, 2022, informal discovery conference (“IDC”) was held. Counsel for Plaintiffs, Steven Carmine Gambardella (“Gambardella”) presented to the Court that he will submit further code-compliant responses. The Court continued the IDC to September 14, 2022.

On September 28, 2022, an IDC held. Defendant was represented by Nicholas D. Smith (“Smith”). There were no appearances on behalf of Plaintiffs. Smith represented that discovery responses had not yet been received. The Court advised that Motion a Motion to Compel Further Responses may be filed.

On January 25, 2023, Defendant filed five motions: (1) Motion to Compel Further Responses of Plaintiff Vincent Dino to Requests for Production, Set One; (2) Motion to Compel Further Responses of Debbie Dino to Requests for Production, Set One; (3) Motion to Compel Responses and Further Responses of Plaintiff Vincent Dino to Special Interrogatories, Set One; (4) Motion to Compel Further Responses of Plaintiff Vincent Dino’s Form Interrogatories, Set One; and (5) Motion to Compel Further Responses of Plaintiff Debbie Dino to Form Interrogatories, Set One.

On March 08, 2023, Defendant filed an Ex Parte Application Seeking Clarification Re Sanctions Following Court Orders Granting Motion to Compel Further Responses to Discovery that was subsequently denied. Defendant failed to articulate a reason for bypassing the process for noticing a regularly scheduled motion.

On April 03, 2023, Plaintiffs filed their Opposition. “All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days. . .before the hearing.” (Cal. Code Civ. Proc. § 1005(b).) “Section 1013, which extends the time within which a right may be exercised or an act may be done, does not apply to a notice of motion, papers opposing a motion, or reply papers governed by this section.” (Ibid.) The hearing is set for April 11, 2023. An Opposition was due by March 28, 2023. The filed Opposition is untimely. “No paper may be rejected for filing on the ground that it was untimely submitted for filing. If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate.” (Cal. Rules of Court, Rule 3.1300(d). The Court does not consider the late filed Opposition.

On April 04, 2023, Defendant filed its Reply, including an argument that the Opposition was untimely.

Standard for Sanctions on a Motion to Compel Further Response to Interrogatories – Under Cal. Code Civ. Proc. §§ 2030.300(d) and 2031.310(h), “[t]he court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to [interrogatories/a demand], unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

Application – Defendant seeks sanctions because the Court granted the Motions to Compel Further. Specifically, Defendant points out that the Court acknowledged in its Statement of Decision that Defendant “has attempted to work with Plaintiffs on the matter of discovery and engaged in the process set out by this Court to obtain the discovery requested,” and that the “the interests of justice require such motions to be compelled.” (02/23/2023 Court Order p. 8.) Defendant argues that “there is no excuse or justification for Plaintiffs’ refusal to provide verified further responses to written discovery as outlined above, especially given the undersigned’s efforts to obtain same informally to avoid consumption of precious judicial resources, and considering Mr. Gambardella’s representations to the undersigned and this Court that such responses would be provided.” (Motion 5:14-18.) Defendant presents that if it is not awarded sanctions, it will be “prejudiced in the amount of $3,810.00 which account for the reasonable value of defense counsel’s time and costs in preparing and filing the five (5) motions to compel necessitated by Plaintiffs’ counsel’s dilatory conduct.” (Id. 5:25-27.) Defendant believes that it should not be penalized for its efforts to compel code compliant responses and that the ends of justice compel the imposition of monetary sections only against Plaintiff’s attorney, Steven Gambardella (“Gambardella”).

The moving papers contain an argument that Plaintiffs have not served their further responses which were due on March 23, 2023. That is not an issue for this motion as this motion focuses on sanctions for the Motions to Compel Further.

Defendant’s counsel, Nicholas Smith (“Smith”), does not address the Court’s statements in its decision as to his conduct.

First, the Court addressed the timing of the Motions to Compel. The Court did not believe the Motions to Compel were timely. Specifically, the Court was not convinced that Defendant’s interpretation of emails between the parties allowed the Motions to Compel to be brought 45-days after the supplemental responses are served when supplemental responses were never served as “ ‘no specific later date’ [was] identified by the agreement and [such an interpretation] would allow Defendant to file motions to compel at any time throughout the litigation.” (02/23/2023 Court Order p. 7.)

The Court also highlighted two important factors in its decision to the Motions to Compel: (1) the agreement between the parties was anything but clear despite Smith’s response “perfect” (id. at p. 7), and (2) Smith was not absolved of his duty to review California statutes despite Gambardella’s representations that all that was needed was a mutual agreement between the parties (id. at p. 8.)

Ultimately, the Court believed that the conduct of both parties attributed to the delay in discovery and neither party was free from fault.

· The Court’s tentative did not include the imposition of sanctions. Smith did not argue this at the hearing.

· Smith and/or his office did not contact the Court about sanctions until one week after the hearing on February 28, 2023 when a call was placed to this department.

· Following this, Smith filed an Ex Parte Application Seeking Clarification Re Sanctions Following Court Orders Granting Motion to Compel Further Responses to Discovery. The Court explicitly ruled that it declined to impose sanctions as it made a finding that there was no irreparable harm. (03/09/2023 Minute Order.)

Despite the Court’s ruling on the Ex Parte Application Seeking Clarification Re Sanctions Following Court Orders Granting Motion to Compel Further Responses to Discovery, Defendant brings this Motion for Sanctions.

The Court reiterates and emphasizes that, while it believed that the interests of justice required the Motions to Compel Further, neither party is free from fault.

As such, the Court believes the impositions of sanctions is unjust as it would reward an improper agreement between the parties under Cal. Code Civ. Proc. §§ 2030.300(c) and 2031.310(c).

Defendant Lancaster Hospital Corporation dba Palmdale Regional Center’s Motion for Monetary Sanctions against Plaintiffs’ Counsel Steven Gambardella is DENIED.

[1] Plaintiffs Vincent Dino and Debbie Dino share the same surname. The Court addresses each by their respective first names for the purpose of clarity. No disrespect is meant.