Judge: Upinder S. Kalra, Case: 20STCV48336, Date: 2024-12-12 Tentative Ruling
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Case Number: 20STCV48336 Hearing Date: December 12, 2024 Dept: 51
Tentative Ruling
Judge Upinder S.
Kalra, Department 51
HEARING DATE: December
12, 2024
CASE NAME: Jessadaporn
Ratchatakongsup v. Edwin Choi, et al.
CASE NO.: 20STCV48336
MOTION
TO COMPEL ANSWERS TO DEPOSITION QUESTIONS
MOVING PARTY: Plaintiff
Jessadaporn Ratchatakongsup
RESPONDING PARTY(S): Defendants Edwin H. Choi, M.D.,
Viora Medspa, Inc., and VM Cosmetic Surgery, Inc.
REQUESTED RELIEF:
1. An
Order compelling Terra Lee to answer deposition questions on various topics;
2. An
Order compelling Defendant Edwin Choi to answer deposition questions on various
topics;
3. An
order prohibiting Defense Counsel Susan B. Rosenblatt from interrupting the
deposition for the purpose of coaching, suggesting answers, giving self-serving
speeches, and speaking objections;
4. An
order allowing that portions of the videotaped depositions showing unreasonable
interference of defense counsel be played to the jury;
5. Evidentiary,
issue, and monetary sanctions
TENTATIVE RULING:
1. Granted
in full;
2. Granted
in full;
3. Granted
in full;
4. Denied
at this time without prejudice;
5. Denied
at this time without prejudice as to evidentiary and issue sanctions. Monetary
sanctions imposed against Defense Counsel Susan B. Rosenblatt in the amount of $21,870
payable within 30 days of this order.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
On December 17, 2020, Plaintiff Jessadaporn Ratchatakongsup
(Plaintiff) filed a Complaint against Defendants Edwin Choi and Viora Medspa,
Inc. (Defendants) with five causes of action for: (1) Professional Negligence,
(2) Negligence, (3) Strict Liability, (4) Products Liability Negligence, and
(5) Breach of Express and Implied Warranties.
According to the Complaint, Plaintiff underwent a medical
procedure called “Thermage” at Defendants’ office. Plaintiff alleges that she
sustained injuries as a result of the procedure.
On February 18, 2021, Defendant Edwin Choi (Choi) filed an
Answer.
On January 18, 2022, Plaintiff filed an Amendment to
Complaint naming VM Cosmetic Surgery, Inc. as DOE 2.
On January 24, 2022, Plaintiff filed an Amendment to
Complaint naming Angie Jang as DOE 1.
On March 1, 2022, Plaintiff filed motions to compel
discovery concerning Defendant Choi which the court GRANTED.
On April 21, 2022, Plaintiff filed a request for dismissal
as to Defendant Angie Jang only.
On May 25, 2022, Defendant Viora Medspa, Inc. filed an Answer.
On January 18, 2023, Defendant VM Cosmetic Surgery, Inc.
filed an Answer.
On July 25, 2024, Plaintiff filed the instant motions to
compel answers to deposition questions by Terra Lee and Defendant Choi.
On November 8, 2024, the court held an Informal Discovery
Conference concerning the deposition answers.
On December 2, 2024, Defendants filed oppositions to the
motions to compel answers at depositions. On December 5, 2024, Plaintiff filed reply
briefs.
LEGAL STANDARD:
Meet
and Confer
Motions to compel deposition answers must be accompanied by
a meet-and-confer declaration. (Code Civ. Proc., (CCP) § 2025.480, subd.
(b).) This requirement is met for each motion. (Feit Decl. ¶ 8 (Lee
Motion), Feit Decl. ¶ 16.)
Motion to Compel
“If a deponent fails to answer any question . . . the party
seeking discovery may move the court for an order compelling that answer or
production.” (Code Civ. Proc, § 2025.480, subd. (a).) “If the court determines
that the answer or production sought is subject to discovery, it shall order
that the answer be given or the production be made on the resumption of the
deposition.” (Id., subd. (i).)
To prevail, a party moving for an order compelling further
responses to deposition questions must make “a fact-specific showing of
relevance.” (TBG Ins. Servs. Corp. v. Superior Court (2002) 96
Cal.App.4th 443, 448 [analogous rule for document production].) If “good cause”
is shown by the moving party, the burden shifts to the responding party to
justify any objections made. (Kirkland v. Superior Court (2002) 95
Cal.App.4th 92, 98 [analogous rule for document production].)
ANALYSIS:
Terra Lee
Plaintiff requests the court order Nurse Lee to respond to
questions concerning:
Defendants argue the requested topics lack foundation and
are irrelevant (among other objections). Moreover, Defense counsel does not
deny making comments, speaking objections, and instructing the deponent not to
answer. Instead, counsel argues that the
conduct was to “help” Plaintiff’s counsel and that questions counsel deems not
relevant, need not be answered by the deponent.
The court reviewed the transcript of the deposition. In sum.
Defense counsel’s conduct was uncivil, unprofessional and improper. Throughout the
deposition, Defense counsel repeatedly made gratuitous remarks, editorial
comments, speaking objections and prevented the deponent from answering. Her
arrogance was apparent in claiming that counsel had the authority to grant “leeway.”
Her hubris was manifest in such comments as, “I’m not coaching her, I’m coaching you.” (P 41.) Despite protestations
to the contrary, by any objective standard, defense counsel’s conduct explicitly
and implicitly repeatedly coached the witness.
Subsequent to
the deposition, on April 18, 2024, Plaintiff’s counsel sent defense counsel a
detailed letter with supporting authority explaining why counsel’s objections
were unsupportable. Plaintiff’s counsel cited verbatim from the Rutter Guide:
California Practice Guide: Civil Procedure Before Trial on proper and improper conduct
by counsel at a deposition. Instead of reviewing the applicable authority,
Defense counsel doubled down in her opposition denying that counsel’s conduct
was anything other than proper and even lecturing how appropriate it was, without
citing any authority. The impertinence that is exhibited by counsel in the
opposition is astonishing. Case law is clear.”[r]elevance objections
should be held in abeyance until an attempt is made to use the testimony at
trial.” (Stewart v. Colonial Western Agency, Inc.
(2001) 87 Cal.App.4th 1006, 1014.) In fact, the Court admonished “the deponent's counsel
should not even raise an objection to a question counsel believes will elicit
irrelevant testimony at the deposition.” (Ibid.)
Here, deponents’ counsel went much further than raise objections. Counsel repeatedly
forbade the deponent from answering. It is generally improper to instruct a witness not to answer. There
are exceptions—privilege, privacy, trade secrets or other statutorily or constitutionally
based objection—but require that counsel
explicitly based the objections on these grounds in order for a reviewing court
to examine their propriety. Otherwise, if counsel truly believed that the
questions were so irrelevant and pervasive so as to constitute harassment,
counsel would have been justified to suspend the deposition and seek a
protective order. Counsel did not pursue these avenues of relief. Even if if counsel
did resort to such protective measures, if counsel improperly suspended the
deposition and improperly sought a protective order, counsel would have been subject
to bearing the cost of another deposition. Here, instead, counsel disruptive behavior
had the effect of suspending the deposition. repeatedly interfered, disrupted
and prevented the deposition from proceeding. Counsel’s behavior and objections
are indefensible.
Edwin Choi
Plaintiff requests the court order Dr. Choi to respond to
questions concerning:
In addition to the objections that the court rejected as to
deponent Lee, Defendants argue that several categories of questioning seek
confidential Medical Board documents and therefore counsel properly instructed
Dr. Choi not to answer. Defendant’s reliance on these authorities are misplaced.
Defendants rely on Bus. & Prof. Code sec. 800(c)(1)
which provides:
“The contents of any central file that
are not public records under any other provision of law shall be confidential
except that the licensee involved, or the licensee's counsel or representative,
may inspect and have copies made of the licensee's complete file except for the
provision that may disclose the identity of an information source. For the
purposes of this section, a board may protect an information source by
providing a copy of the material with only those deletions necessary to protect
the identity of the source or by providing a summary of the substance of the
material. Whichever method is used, the board shall ensure that full disclosure
is made to the subject of any personal information that could reasonably in any
way reflect or convey anything detrimental, disparaging, or threatening to a
licensee's reputation, rights, benefits, privileges, or qualifications, or be
used by a board to make a determination that would affect a licensee's rights,
benefits, privileges, or qualifications. The information required to be
disclosed pursuant to Section
803.1 shall not be considered among the contents of a central file for
the purposes of this subdivision.”
Courts have analyzed this section under the official
information or deliberative process privilege. (Board of Registered Nursing v. Superior Court of Orange County
(2021) 59 Cal.App.5th 1011, 1040 [discussing subpoenas to the Medical License
Board, among others]; Evid. Code 1040.) The Court in Board of Registered Nursing concluded the trial court abused its
discretion in ordering production because the subpoenas were overbroad and
subpoenaing party did not make its showing balancing privacy interest with need
but declined to opine whether a more limited production would be proper. (Board of Registered Nursing, supra, at
p. 1041-1042.) To be clear, the Court there did not find that Bus. & Prof.
Code sec. 800(c)(1) means the documents are absolutely privileged as Defendants
contend. Indeed, the Court noted that some records were produced. (Id. at FN 4 [“Notwithstanding these
proceedings, defendants have been able to obtain some information from the
state agencies. The Pharmacy Board produced over 50,000 pages of responsive
documents, including copies of its accusations and disciplinary decisions from
1990 through 2004. Accusations and disciplinary decisions from 2005 forward are
publicly available on the Pharmacy Board's website. The Nursing Board provided
a list of registered nurses who were disciplined, which allowed defendants to
review the Nursing Board's publicly available discipline decisions. The
Medical Board provided a list of physicians accused of excessive or
inappropriate prescribing, which allowed defendants to undertake a similar
review of information on the Medical Board's website. It also pointed
defendants to its quarterly “ ‘action reports,’ ” which list physicians
involved in disciplinary actions, and produced other documents such as annual
reports and enforcement materials. It allowed inspection of Medical Board
meeting materials from 1990 through 2006, a process which took four days.”]
(emphasis added)) Additionally, as the Court noted, “Confidentiality does not
equate with privilege.” (Id. at FN 7
(internal citations omitted.)
Defendants also rely on Gov. Code sec. 7923.600. This
applies to law enforcement, not to doctors and the Medical Board. Evid. Code
sec. 1157 does not help either because subd. (c) provides: “The prohibition
relating to discovery or testimony does not apply to the statements made by a
person in attendance at a meeting of any of the committees described in
subdivision (a) if that person is a party to an action or proceeding the
subject matter of which was reviewed at that meeting . . . .”
In sum, the documents are not absolutely privileged.
Request for
Sanctions
“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 § 3.1348(a).)
Code of Civil Procedure section 2023.030, subdivision (a)
provides, in pertinent part, that the court may impose a monetary sanction on a
party engaging in the misuse of the discovery process to pay the reasonable
expenses, including attorney’s fees, incurred by anyone as a result of that
conduct. A misuse of the discovery process includes failing to respond or to
submit to an authorized method of discovery. (Code Civ. Proc., § 2023.010,
subd. (d).) Furthermore, a Court “shall impose a monetary sanction” for filing
to produce documents (Code Civ. Proc., § 2025.450) or unsuccessfully opposes a
motion to compel answering questions at a deposition. (Code Civ. Proc., §§ 2025.480(j).)
Plaintiff request $11,810 in attorneys’ fees as to the Edwin
Choi motion and $11,560 in attorneys’ fees as to the Terra Lee motion. As to
the Choi Motion, this is based on an hourly rate of $500, with one hour for an unnecessarily
prolonged deposition, 15 hours of work for the current motion, plus an
anticipatory three hour for reviewing and preparing the reply and one and hour
for attending the hearing, , and three hours for an additional deposition, for
a total of 23 hours and a $60 filing fee. As to the Lee Motion, this is based
on an hourly rate of $500, with one and half hour for an unnecessarily prolonged
deposition, 13 hours of work for the current motion, plus an anticipatory three
hour for reviewing and preparing the reply and one hour for attending the
hearing, and three hours for an additional deposition, for a total of 21.5
hours and a $60 filing fee. Using the lodestar method, the hourly rate is reasonable
in light of counsel’s years of
experience. The court also determines other than the duplication of one hour for
appearing in court, the hours are reasonably incurred and will be incurred. As
such, the court awards a total sanction of $21,870 which includes $120 in filing
fees. Moreover, since it was solely defense counsel who engaged in the
discovery abuse, the sanction is imposed against counsel Defense
Counsel Susan B. Rosenblatt alone. Counsel should
be aware that if the sanctions request had also noticed CCP § 2023.040 in the
notice section as a basis for the sanctions, the court would have likely
imposed an additional $1,000 on each motion and would have considered exercising
its discretion under CCP § 2023.050(b) to report the sanction to the State Bar,
notwithstanding paragraph three of subdivision (o) of section 6068 of the
Business and Professions Code because of the clear, repeated and inexcusable
abuse of the discovery process.
CONCLUSION:
For
the foregoing reasons, the Court decides the pending motion as follows:
1. An
Order compelling Terra Lee to answer deposition questions on various topics GRANTED
IN FULL;
2. An
Order compelling Defendant Edwin Choi to answer deposition questions on various
topics GRANTED IN FULL;
3. An
order prohibiting Defense Counsel Susan B. Rosenblatt from interrupting the
deposition for the purpose of coaching, suggesting answers, giving self-serving
speeches, and speaking objections GRANTED IN FULL;
4. An
order allowing that portions of the videotaped depositions showing unreasonable
interference of defense counsel be played to the jury, DENIED WITHOUT
PREJUDICE;
5. An
order for Evidentiary and issue sanctions DENIED WITHOUT PREJUDICE. An
order for monetary sanctions imposed against Defense Counsel Susan B.
Rosenblatt in the amount of $21,870 payable within 30 days of this order.
Moving party is to give notice.
IT IS SO ORDERED.
Dated: December 12, 2024 __________________________________ Upinder
S. Kalra
Judge
of the Superior Court