Judge: Virginia Keeny, Case: 21STCV15479, Date: 2023-05-11 Tentative Ruling

Case Number: 21STCV15479    Hearing Date: May 11, 2023    Dept: W

FATEMEH SHAHRIARI v. MOOSA HEIKALI, M.D., et al.

PLAINTIFF’S MOTIONS TO COMPEL DEFENDANT MOOSA HEIKALI MD AND Bahram Tabibian, MD TO ATTEND AND TESTIFY AT DEPOSITION, AND TO PRODUCE DOCUMENTS PURSUANT TO THE DEPOSITION NOTICE AND REQUEST FOR MONETARY SANCTIONS

Date of Hearing:        January 17, 2023                               Trial Date:       None set.

Department:               W                                                           Case No.:        21STCV15479

Moving Party:            Plaintiff Fatemah Shahriari

Responding Party:     Defendants Moosa Heiklai MD and Bahram Tabibian MD

BACKGROUND

On April 23, 2022, Plaintiff Fatemeh Shahriari filed a complaint against Defendants Moosa Heikali, MD, Bahram Tabibian, MD, Venus Navarro Julian, MD, and F & M Radiology Medical Center, Inc. dba Sina Urgent Care asserting causes of action for (1) Gross Negligence; (2) Fraudulent Concealment; (3) Intentional Misrepresentation; (4) Medical Malpractice; (5) Medical Battery/Lack of Consent; and (6) Breach of Fiduciary Duty. Plaintiff alleges she went to Sina Urgent Care on January 23, 2020. While there, Dr. Heikali performed an ultrasound for pain Plaintiff was feeling in her right knee. However, before receiving the results of the ultrasound, Plaintiff alleges Dr. Heikali gave Plaintiff a shot in her knee and did not discuss with Plaintiff what the substance was that he was injecting. Plaintiff’s knee began to swell and when she followed up with Dr. Heikali about her knee, Plaintiff alleges Dr. Heikali did not take her seriously. As the pain grew, Plaintiff went to Mission Medical Center where she discovered she had a staff infection. Plaintiff alleges Dr. Tabibian employed Dr. Heikali and Dr. Navarro-Julian was present when Dr. Heikali administered the injection.

[Tentative] Ruling

Plaintiff’s Motions to Compel Defendant Moosa Heikali MD and Bahram Tabibian, MD to Attend and Testify at Deposition, and to Produce Documents Pursuant to the Deposition Notice and Request for Monetary Sanctions is GRANTED IN PART.

DISCUSSION

Plaintiff Fatemah Shahriari moves the court for an order compelling Defendants Moosa Heiklai MD and Bahram Tabibian MD to each appear for his deposition, and for each to produce the documents requested in the deposition notice served on him, requests nos. 1-10, and 14-19. Plaintiff also moves for an order imposing monetary sanctions in the amount of $9,101.65 against Defendant Bahram Tabibian MD, and his counsel of record, Schuler & Brown, jointly and severally, and in favor of Plaintiff.

If, after service of a deposition notice, a party to the action…, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. (CCP §2025.450(a).)

Plaintiff moves to compel the deposition testimony of Defendants on the grounds that both Defendants refused to appear and testify at their deposition as well as refused to produce the documents requested in the deposition notice served on them and that Plaintiff has good cause to request the documents and depose each Defendant as they are a party to this action.

In opposition, Defendants agree to submit to a deposition properly noticed at a mutually agreeable date within 30 days of the date of this hearing. Defendants contend, however, sanctions are inappropriate because Plaintiff has filed a motion to compel a deposition which was never noticed. However, if sanctions were appropriate, requesting fees for 45.2 hours of work for preparation of two identical discovery motions is entirely inappropriate.

Based on Defendants’ representations, the court finds the motion to compel attendance and production of documents at the deposition MOOT. The court orders the parties  to work together to determine a date suitable for each deposition within the next 30 days. If either Defendant fails to appear at the agreed upon time and date, Plaintiff may bring another motion to compel with sanctions.  

As for Plaintiff’s instant request for sanctions, Plaintiff argues sanctions are still warranted because from the beginning of this action, it has been the intent of Defendants to delay the prosecution of this action. Plaintiff notes she has been asking for deposition dates since June 1, 2022. (Dib Decl. ¶6.)  Defendant counters that there is not deposition notice or request to produce documents currently at issue, since the parties agreed to take off calendar the previously noticed depositions (set for August 22, 2022) until the court resolved the issue of whether the matter should be stayed given criminal proceedings then pending.  The court notes that after the court ruled in January 2023, denying the stay, plaintiff did not renotice any depositions.  While the court understands that plaintiff has been diligently trying to get the depositions back on track through the meet and confer process, the court also agrees with defendant that there is no formal notice to appear at deposition that defendant is flaunting.  The court will order defendants to appear at deposition within the next 30 days; plaintiff will need to serve written notices to appear and accompanying document requests.  If defendant still refuses to appear, sanctions will be appropriate and can be sought in a later motion to compel and for sanctions. 

Accordingly, Plaintiff’s Motions to Compel Defendant Moosa Heikali MD and Bahram Tabibian, MD to Attend and Testify at Deposition, and to Produce Documents Pursuant to the Deposition Notice and Request for Monetary Sanctions is GRANTED IN PART.