Judge Thomas D. Long, Case Number: 20STCV36767, Date: 2024-11-07 Tentative Ruling

On March 14, 2023, Defendant David E. Fermelia M.D. served a Notice of Taking Deposition of Plaintiff Djamileh Mahjobi for May 3, 2023. (Taylor Decl. ¶ 4.) Defendant also propounded Form Interrogatory Requests, Set One; Special Interrogatory Requests, Set One; and a Demand for Production of Documents, Set One. (Taylor Decl. ¶ 5.) On April 17, 2023, Plaintiff served unverified responses consisting of only objections. (Taylor Decl. ¶ 6.) Defendant attempted to meet and confer, but Plaintiff stood by her objections. (Taylor Decl. ¶ 7.)

On April 27, 2023, Plaintiff served an objection to Defendant’s Notice of Taking Deposition and objected to “any attorney of Defendant to personally confront or to take deposition of the Plaintiff.” (Taylor Decl. ¶ 8.) Defendant attempted to meet and confer and requested alternative dates, but Plaintiff did not respond. (Taylor Decl. ¶¶ 9-10.) Defendant proceeded with Plaintiff’s May 3, 2023 deposition and took a Certificate of Non-Appearance. (Taylor Decl. ¶ 10.)

On December 21, 2023, the Court granted Defendant’s motion to compel Plaintiff’s deposition and ordered that the deposition occur within 90 days. (Talyor Decl. ¶ 12.)

On February 13, 2024, the Court granted in part Defendant’s motions to compel further responses to Form Interrogatory Requests, Set One; Special Interrogatory Requests, Set One; and a Demand for Production of Documents, Set One.

Defendant noticed Plaintiff’s deposition for February 26, 2024, and when Plaintiff refused to appear in person, Defendant attempted to accommodate Plaintiff by offering other locations. (Talyor Decl. ¶¶ 14-17.)

On April 16, 2024, Plaintiff provided verified responses to Defendant’s discovery requests, but the responses were objections only, in violation of the Court’s February 13, 2024 order. (Taylor Decl. ¶ 19.)

Defendant noticed Plaintiff’s deposition for August 28, 2024, Plaintiff objected and refused to provide dates to complete her deposition, and Defendant took a Notice of Non-Appearance. (Taylor Decl. ¶ 20.)

On October 3, 2024, Defendant filed a motion for terminating, issue, evidentiary, and/or monetary sanctions. Defendant contends that he has been unable to prepare an adequate defense because Plaintiff refuses to appear for her deposition, no discovery responses have been received, and defense counsel cannot properly prepare for dispositive motions or trial. (Taylor Decl. ¶ 21.)

A court may impose a terminating sanction against anyone engaging in conduct that is a misuse of the discovery process. (Code Civ. Proc., § 2023.030, subd. (d).) Misuse of the discovery process includes failing to respond to discovery, unjustifiably making unmeritorious objections to discovery, and disobeying a court order to provide discovery. (Code Civ. Proc., § 2023.010.) “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.’ [Citation.] 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, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390.)

Plaintiff’s failure to produce proper written discovery responses and failure to appear for deposition does not yet demonstrate a history of abuse that justifies “the ultimate sanction.” (See Los Defensores, supra, 223 Cal.App.4th at p. 390.) Additionally, no trial date has been set. Under the totality of the circumstances, Defendant has not shown a history of willful discovery abuse by Plaintiff, and the Court cannot find that less severe sanctions would be ineffective and that terminating sanctions are warranted.

The request for terminating sanctions is denied without prejudice to renewal if Plaintiff continues to violate her discovery obligations.

In the alternative, Defendant requests issue and evidentiary sanctions related to Plaintiff’s alleged damages. A court may impose an issue sanction ordering that designated facts must be taken as established in accordance with the claim of the party adversely affected by the misuse of the discovery process. (Code Civ. Proc., § 2023.030, subd. (b).) A court may also impose an issue sanction prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses. (Ibid.)

The goal of Defendant’s discovery was to obtain documentary evidence essential for the defense of Plaintiff’s damages allegations, and Plaintiff’s refusal to participate in discovery prevents Defendant from defending this action. (See Motion at pp. 6-7.)

Defendant therefore seeks an order that it be established that (1) Plaintiff did not sustain any physical, mental, or emotional injuries as a result of any act or omission by Defendant; (2) Plaintiff no longer suffers from any physical, mental, or emotional injuries as a result of any act or omission by Defendant; (3) Plaintiff did not receive any medical treatment from any health care provider for any injury attributable to any act or omission by Defendant; and (4) Plaintiff will not receive any medical treatment in the future from any health care provider for any injury attributable to any act or omission by Defendant. (Motion at pp. 6-7.)

Additionally, Defendant seeks an order prohibiting Plaintiff from attempting to introduce evidence that Plaintiff sustained any physical, mental, or emotional injuries or continues to suffer from any physical, mental, or emotional injuries, as a result of any act or omission by Defendant. (Motion at p. 7.)

Plaintiff still has not produced necessary documents in response to Defendant’s March 14, 2023 discovery, despite the Court’s February 13, 2024 order. Plaintiff still has not appeared for her noticed deposition, despite Defendant’s attempts to accommodate her scheduling and location needs. Plaintiff is obstructing Defendant from being able to present his defense. Accordingly, the Court will impose sanctions on Plaintiff.

The Court ORDERS that it must be taken as established that (1) Plaintiff did not sustain any physical, mental, or emotional injuries as a result of any act or omission by Defendant; (2) Plaintiff no longer suffers from any physical, mental, or emotional injuries as a result of any act or omission by Defendant; (3) Plaintiff did not receive any medical treatment from any health care provider for any injury attributable to any act or omission by Defendant; and (4) Plaintiff will not receive any medical treatment in the future from any health care provider for any injury attributable to any act or omission by Defendant. Plaintiff may not introduce evidence that Plaintiff sustained any physical, mental, or emotional injuries or continues to suffer from any physical, mental, or emotional injuries, as a result of any act or omission by Defendant.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court