Judge Steven A. Ellis, Case Number: 19STCV35153, Date: 2023-11-20 Tentative Ruling

Judge: Steven A. Ellis, Case: 19STCV35153, Date: 2023-11-20 Tentative Ruling

Case Number: 19STCV35153 Hearing Date: January 26, 2024 Dept: 29

Tentative

The motions are DENIED without prejudice.

Background

On October 2, 2019, Plaintiff Karina Mena (“Plaintiff”) filed the Complaint in this action against Defendants Michael Obeng, M.D. (“Obeng”), Miko Plastic Surgery (“Miko”), Beverly Hills Wellness Surgical Institute, Lotus Surgery Center, Inc., and Does 1 through 50, asserting causes of action for medical negligence and negligent hiring and retention.

On July 6, 2020, the Court entered the default of Obeng and Miko.

On February 16, 2021, the Court, at the request of Plaintiff, dismissed all claims against Beverly Hills Wellness Surgical Institute, Lotus Surgery Center, Inc., and Does 1 through 50, without prejudice.

Despite the entry of default, Obeng and Miko filed their Answer to the Complaint on November 3, 2021. On that same day, Obeng and Miko also filed a Cross-Complaint against Kaiser Permanente Medical Group, Kaiser Permanente a Corporation, and Does 1 through 15, for (1) Indemnification, (2) Apportionment of Fault, and (3) Declaratory Relief.

Obeng and Miko filed a motion to set aside the default. On July 22, 2022, the Court granted Obeng’s motion to set aside the default and denied Miko’s.

On September 9, 2022, Obeng filed a First Amended Answer.

On November 17, 2022, Obeng amended the Cross-Complaint to name Southern California Permanente Medical Group (“SCPMG”) as Doe 1. SCPMG filed an Answer to the Cross-Complaint on August 29, 2023.

Two days later, on August 31, 2023, SCPMG served Obeng with Form Interrogatories (Set One), Special Interrogatories (Set One), and Requests for Production (Set One). (Brown Decls., ¶¶ 4-5 & Exhs. A-B.) As of the filing of this motion, Obeng had not responded to the discovery.

On October 6, 2023, Obeng filed a substitution of attorney. Obeng is now representing himself.

On December 28, 2023, SCPMG filed the two motions that are before the Court and set for hearing on January 26: a motion to compel initial responses to interrogatories and a motion to compel initial responses to requests for production. SCPMG seeks monetary sanctions in each motion.

Obeng has not filed an opposition to either motion.

Legal Standard

A party must respond to interrogatories within 30 days after service. (Code Civ. Proc., § 2030.260, subd.(a).) If a party to whom interrogatories are directed does not provide a timely response, the propounding party may move for an order compelling response to the interrogatories. (Id., § 2030.290, subd. (b).) There is no time limit for a motion to compel initial responses, and no meet and confer efforts are required. (See id., § 2030.290; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411.) Nor must a separate statement be filed. (Cal. Rules of Court, rule 3.1345(b)(1).) In addition, a party who fails to provide a timely response generally waives all objections. (Code Civ. Proc., § 2030.290, subd. (a).)

When a party moves to compel initial responses to interrogatories, “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 [the motion], 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.” (Code Civ. Proc., § 2030.290, subd. (c).)

A party must respond to requests for production of documents within 30 days after service. (Code Civ. Proc., § 2031.260, subd.(a).) If a party to whom requests for production of documents are directed does not provide timely responses, the requesting party may move for an order compelling response to the demand. (Id., § 2031.300, subd. (b).) There is no time limit for a motion to compel initial responses, and no meet and confer efforts are required. (See id., § 2031.300; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411.) Nor must a separate statement be filed. (Cal. Rules of Court, rule 3.1345(b)(1).) In addition, a party who fails to provide a timely response generally waives all objections. (Code Civ. Proc., § 2031.300, subd. (a).)

When a party moves to compel initial responses to requests for production, “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 [the motion], 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.” (Code Civ. Proc., § 2031.300, subd. (c).)

In Chapter 7 of the Civil Discovery Act, Code of Civil Procedure section 2023.010, subdivision (d), defines “[m]isuses of the discovery process” to include “[f]ailing to respond to or to submit to an authorized method of discovery.” Where a party or attorney has engaged in misuse of the discovery process, the court may impose a monetary sanction in the amount of “the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” (Code Civ. Proc., § 2023.020, subd. (a).)

“[P]roviding untimely responses does not divest the trial court of its authority [to hear a motion to compel responses].” (Sinaiko Healthcare Consulting, Inc., supra, 148 Cal.App.4th at p. 407.) Even if the untimely response “does not contain objections [and] substantially resolve[s] the issues raised by a motion to compel responses … the trial court retains the authority to hear the motion.” (Id. at pp. 408-409.) This rule gives “an important incentive for parties to respond to discovery in a timely fashion.” (Id. at p. 408.) If “the propounding party [does not] take the motion off calendar or narrow its scope to the issue of sanctions,” the trial court may “deny the motion to compel responses as essentially unnecessary, in whole or in part, and just impose sanctions.” (Id. at p. 409.) “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.” (Cal. Rules of Court, rule 3.1348(a).)

Discussion

SCPMG served Obeng with Form Interrogatories (Set One), Special Interrogatories (Set One), and Requests for Production (Set One) on August 31, 2023. (Brown Decls., ¶¶ 4-5 & Exhs. A-B.) Obeng had not responded.

There is an issue, however, with service.

Initially, based on the information in the record, the discovery requests themselves were duly and properly served on Obeng through his then-counsel.

On October 6, 2023, Obeng filed a substitution of counsel indicating that he is now representing himself; the substitution form includes a mailing address for Obeng but no email address.

Obeng is not a represented party and so is not subject to any mandatory provision for accepting electronic service that applies to represented parties. (See Code Civ. Proc., § 1010.6; Cal. Rules of Court, rule 2.251.) Nor is there any evidence in the record that Obeng agreed to or consented to electronic service of court documents in this matter. Accordingly, SCPMG (and all parties) are required to serve Obeng by mail (or by some other authorized means other than electronic service).

Here, however, according to the proofs of service, Obeng was served with these two motions electronic service only. That is not valid service for these motions.

Accordingly, the Court DENIES these two motions for lack of proper service. The denial is without prejudice.

Conclusion

The Court DENIES without prejudice the motions of Cross-Defendant Southern California Permanente Medical Group to compel Obeng to respond to interrogatories and requests for production.

Moving party is ORDERED to give notice.