Judge: Stephen Morgan, Case: 22AVCV00541, Date: 2023-11-07 Tentative Ruling
Case Number: 22AVCV00541 Hearing Date: November 7, 2023 Dept: A14
Background
This is a medical malpractice
action. Plaintiff Laurel Forrest (“Plaintiff”) alleges that she and Defendant
Jennifer Anger, M.D. (“Defendant”), entered into an oral agreement, noted in
Plaintiff’s patient records, to perform a total hysterectomy by laparoscopic
surgery, including a total vaginectomy and “labiaectomies,” with Bobbie Rimel,
M.D., and Defendant (1) failed to perform the agreed upon vaginectomy and
“labiaectomies;” and (2) made a broad transverse incision of Plaintiff’s
abdomen, causing major scarring and painful adhesions. Plaintiff presents that
she must undergo a second abdominal surgery to perform the total vaginectomy
and “labiaectomies” which were left undone and concealed from Plaintiff.
On August 05, 2022, Plaintiff
filed her Complaint alleging four causes of action for: (1) General Negligence,
(2) Intentional Tort, (3) Breach of Contract, and (4) Medical Malpractice.
Plaintiff notes that all causes of action stem from Medical Malpractice.
On January 30, 2023, Defendant
filed her Answer.
On October 11, 2023, Defendant
filed three motions: (1) Motion to Compel Responses Form Interrogatories, (2)
Motion to Compel Responses to Special Interrogatories, and (3) Motion to Compel
Responses to Requests for Production.
No Opposition has been filed. 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 November 07, 2023. Accordingly, an Opposition was due by
October 25, 2023. Should an Opposition be filed, it is now untimely.
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Analysis
Standard for Compelling Interrogatories – Cal. Code Civ. Proc.
§2030.290 provides that a party may bring a motion to compel responses to interrogatories,
where the responding party failed to serve a timely response. Unless otherwise
agreed, the responding party is required to serve response within 30 days after
service of the discovery demand for production documents. (Cal. Code Civ. Proc.
§2030.290(b).) If the responding party fails to serve a timely response, the
party “waives any objection to the demand, including one based on privilege or
on the protection for work product . . .” (Cal. Code Civ. Proc. §2030.290(a).)
The requesting party need not demonstrate “good cause to compel responses, nor
that it satisfied the “meet and confer” requirement. (Sinaiko Healthcare
Consulting, Inc. v. Pacific Healthcare Consultants (2007) 143 Cal.App.4th
390, 404.)
Responses to interrogatories
are due within 30 days after service of interrogatories. (Cal. Code Civ. Proc.
§ 2030.260.) “The party propounding interrogatories and the responding party
may agree to extend the time for service of a response to a set of
interrogatories, or to particular interrogatories in a set, to a date beyond
that provided in Section 2030.260.” (Cal. Code Civ. Proc. § 2030.270(a).) While
this agreement may be informal, it must be confirmed in writing. (Cal. Code
Civ. Proc. § 2030.270(b).)
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Standard for
Compelling Responses to
Requests for Production (“RFP”) – Cal. Code Civ. Proc. § 2031.300
provides that a party may bring a motion to compel responses to a request for
production of documents, where the responding party failed to serve a timely
response. Unless otherwise agreed, the responding party is required to serve
response within 30 days after service of the discovery demand for production
documents. (Cal. Code Civ. Proc. § 2031.260(a).) If the responding party fails
to serve a timely response, the party “waives any objection to the demand,
including one based on privilege or on the protection for work product . . .”
(Cal. Code Civ. Proc. § 2031.300(a).) The requesting party need not demonstrate
“good cause to compel responses, nor that it satisfied the “meet and confer”
requirement. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007)
143 Cal.App.4th 390, 404.)
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Discussion
Application –
i.
Special Interrogatories
Defendant propounded Plaintiff with its
Request for Responses to Special Interrogatories. The Request for Responses to
Special Interrogatories is dated January 30, 2023. (Motion to
Compel Responses to Special Interrogatories, Decl. Beth Ann Neri ¶ 2 and Exh. A.)
Defendant extended the time for service of a response to the set of special interrogatories
to June 19, 2023. (Id., Decl. Beth Ann Neri ¶ 2, Exh. B.) To date,
Plaintiff has not served verified responses to Defendant’s special
interrogatories. (Id., Decl. Beth Ann Neri ¶ 4.)
The Court GRANTS the Motion to
Compel Special Interrogatory Responses under Cal. Code Civ. Proc. § 2030.290 and
orders Plaintiff to serve verified responses without objections within 10
days of notice of the court order.
ii.
Form Interrogatories
Defendant propounded Plaintiff with its
Request for Responses to Form Interrogatories. The Proof of Service for the Request
for Responses to Form Interrogatories is dated January 30, 2023. (Motion to
Compel Responses to Form Interrogatory, Decl. of Andrew Beth Ann Neri ¶ 2, Exh.
A.) The attached exhibits include the same email thread in the Motion to Compel
Responses to Special Interrogatories. As discussed above, Defendant extended
the time for service of a response to form interrogatories to June 19, 2023. (Id.,
Decl. Beth Ann Neri ¶ 2, Exh. B.) To date, Plaintiff has not served verified
responses to Defendant’s form interrogatories. (Id., Decl. Beth Ann Neri
¶ 4.)
The Court GRANTS the Motion to
Compel Form Interrogatory Responses under Cal. Code Civ. Proc. § 2030.290 and
orders Plaintiff to serve verified responses without objections within 10
days of notice of the court order.
iii.
Requests for Production (“RFP”)
Defendant propounded Plaintiff with its RFPs.
The Proof of Service for the Request for Production is dated January 30, 2023.
(Motion to Compel Responses to RFPs, Decl. Beth Ann Neri ¶ 2, Exh. A.) The
attached exhibits include the same email thread in the Motion to Compel Responses
to Special Interrogatories and the Motion to Compel Responses to Form
Interrogatories. As discussed above, Defendant extended the time for service of
a response to the RFPs to June 19, 2023. (Id., Decl. Beth Ann Neri ¶ 2, Exh.
B.) To date, Plaintiff has not served verified responses to Defendant’s RFPs. (Id.,
Decl. Beth Ann Neri ¶ 4.)
The Court GRANTS the Motion to
Compel RFP Responses under Cal. Code Civ. Proc. § § 2031.300 and
orders Plaintiff to serve verified responses without objections within 10
days of notice of the court order.
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I.
Sanctions
Defendant does not request
sanctions; however, the relevant statutes outline that the Court shall impose
monetary sanctions against any party, person, or attorney who unsuccessfully
makes or opposes a motion to compel a response to interrogatories and demands
for inspection, with certain limitations.
“The 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 response to interrogatories, 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.” (Cal. Code Civ. Proc. §
2030.290(c).)
“Except as provided in
subdivision (d), the 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 response to a demand for inspection,
copying, testing, or sampling, 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. If a party then fails to obey the order
compelling a response, the court may make those orders that are just, including
the imposition of an issue sanction, an evidence sanction, or a terminating
sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in
addition to this sanction, the court may impose a monetary sanction under
Chapter 7 (commencing with Section 2023.010).” (Cal. Code Civ. Proc. § 2031.300(c).)
Subdivision (d) is not applicable here as it focuses on the failure to provide
electronically stored information that has been lost, damaged, altered, or
overwritten as a result of the routine, good faith operation of an electronic
information system and the corresponding obligation to preserve discoverable
information. (Cal. Code Civ. Proc. § 2031.300(d).)
Plaintiff has not opposed this
motion and, as such, there is no presentation as to why a failure to respond
within the statutory deadline was justified.
The Court imposes a sanction of $250.00
pursuant to Cal. Code Civ. Proc. § 2030.290(c) and § 2031.300(c).
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Conclusion
Defendant Jennifer Anger, M.D.’s
Motion to Compel Responses from to Form Interrogatories is GRANTED.
Defendant Jennifer Anger, M.D.’s
Motion to Compel Responses to Special Interrogatories is GRANTED.
Defendant Jennifer Anger, M.D.’s
Motion to Compel Responses to Request for Production Set One is GRANTED.
Plaintiff Laurel Forrest is
ordered to serve verified
responses without objections within 10 days of notice of this Court Order.