Judge: William A. Crowfoot, Case: 22STCV13792, Date: 2023-02-03 Tentative Ruling

Case Number: 22STCV13792    Hearing Date: February 3, 2023    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – NORTHEAST DISTRICT

I.            BACKGROUND

On February 27, 2019, plaintiff Rosevianney C. Ogumsi (“Plaintiff”) filed this medical malpractice action. 

On September 26, 2022, Plaintiff filed the operative Second Amended Complaint (“SAC”) against defendants Richard Dale Gentile, D.D.S., and Heydar Hamid Shahrokh, D.D.S., an individual, and Heydar Shahrock, D.D.S., Inc., dba Comfort Dental Center (erroneously sued as Comfort Dental Center), asserting causes of action for (1) professional negligence (dental malpractice), (2) intentional in infliction of emotional distress, (3) negligent infliction of emotional distress, (4) unlawful, unfair, and/or fraudulent business practices (Bus. & Prof. Code § 17200, et seq), and (5) defamation.  Trial is not yet scheduled. 

Now before the Court are the substantially similar motions filed October 10, 2022, by Defendant Heydar Hamid Shahrokh, D.D.S., an individual, and Heydar Hamid Shahrokh, D.D.S., Inc., dba Comfort Dental Center (“Defendants”), for orders compelling Plaintiff’s response to their respective Form Interrogatories, Set One.  Defendants also each seek an order imposing monetary sanctions of $2,335 against Plaintiff and her attorney of record, Chima Anyanwu, Esq.  

The motion filed October 10, 2022, by Defendant Heydar Hamid Shahrokh, D.D.S., an individual, was originally set to be heard on February 2, 2023. On January 23, 2023, Defendant Shahrokh continued that motion to February 3, 2023. 

On January 27, 2023, the Defendants filed an incorrect and confusing notice of non-opposition to both motions; incorrect because in the text it referred only to the motion of Defendant Heydar Hamid Shahrokh, D.D.S., an individual, but, in the caption, it appeared to be trying to refer to both.

Also on January 27, 2023, Defendant Heydar Hamid Shahrokh, D.D.S., an individual, filed a notice of withdrawal of motion of the motion set to be heard on February 2, 2023.  It would have been helpful of counsel for this Defendant to have added a clarification in his notice of withdrawal that the motion was being withdrawn only because it had been rescheduled (by counsel) to be heard the following day.

Both motions are unopposed.

On February 2, 2023, counsel for Defendants filed Supplemental Declarations to the motions explaining to the Court that counsel for Plaintiff was late in responding to discovery and that in doing so Plaintiff had apparently provided only one set of responses, conflating the discovery requests by each of the Defendants into one.

The Court is astounded to learn, upon reading Defendants’ counsel’s declaration filed on February 2, 2023, that at no time, beginning on October 11, 2022, when Plaintiff learned of the motions before the Court today, and first reached out to Defendants’ counsel, that neither counsel thought or made an effort to actually speak with the other counsel to cut through the confusion. As with the notice of withdrawal of motion referred to above, a notice that if technically correct was entirely short of being helpful, the hyper-correctness of the email exchanges clearly did not advance this litigation. Indeed, telephone calls may have saved a lot of effort had they been made prior to October 10, 2022; Plaintiff certainly had ample reason and opportunity to make such a  telephone call prior to October 10, 2022.

II.          LEGAL STANDARD

Within 30 days after service of interrogatories, the party to whom the interrogatories are propounded shall serve the original of the response to them on the propounding party, unless, on motion by the propounding party, the court extends or shortens the time to respond. (Code Civ. Proc., § 2030.260, subd. (a).) 

If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses without objections.  (Code Civ. Proc., § 2030.290, subd. (b).) 

“The court shall impose a monetary sanction … 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.” (Code Civ. Proc., § 2030.290, subd. (c).) 

III.        DISCUSSION

Defense counsel attests to the following facts.  On July 6, 2022, Defendant served Plaintiff his Form Interrogatories, Set One, by email.  (Motion, declaration of Ted Conley (“Conley Decl.”), ¶ 3; Exhibit A – a copy of the propounded interrogatories.)  On August 26, 2022, defense counsel sent Plaintiff’s counsel meet and confer correspondence, notifying him of his client’s failure to respond to the discovery request and requested Plaintiff to serve responses by September 2, 2022.  (Conley Decl., ¶ 4; Exhibit B – a copy of the letter.)  On September 6, 2022, he again contacted Plaintiff’s counsel, noting Plaintiff’s failure to respond to the interrogatories, but the Plaintiff’s counsel responded that he did not recall “reading” the August 26 correspondence asking him about the responses.  (Conley Decl., ¶¶ 5, 6; Exhibits C, D.)  Defense counsel responded to the email, confirming a stipulation to give Plaintiff until September 27, 2022, to serve responses, but by September 28, no responses had been served.  (Conley Decl., ¶¶ 7, 8; Exhibits D and E.)  Despite extending Plaintiff’s deadline to respond to October 6, 2022, as of the filing date of the instant motion, on October 10, 2022, no responses to the interrogatories have been served.  (Conley Decl., ¶¶ 8, 9.) 

On January 27, 2023, Defendant filed a Notice of Non-Opposition, updating the Court that Plaintiff had not filed any opposition to his motion.  Indeed, the Court notes that as of February 2, 2023, no opposition to the motion has been filed.

Defendant has shown that he served an authorized method of discovery on Plaintiff, but Plaintiff did not serve any responses.

Accordingly, the Court grants Defendant’s request to compel Plaintiff’s responses to his Form Interrogatories, Set One.

Defendant seeks discovery sanctions of $2,335 with respect to each motion.  The amount consists of a $60 filing fee, plus 6.5 hours defense counsel spent, or anticipated spending, on meet and confer efforts, moving papers, drafting Defendant’s reply to Plaintiff’s opposition, and attending the hearing, at a billing rate of $350 per hour ($2,275.)

The total requested for both motions is $4,670. The Court finds the requested sanctions excessive. The motions are simple and substantially identical and Plaintiff filed no opposition. A reply was neither necessary nor filed. 

Accordingly, the Court grants Defendants’ requests for sanctions in the amount of $1,170 ($60 filing fee x 2, and three hours of counsel’s time). 

IV.         CONCLUSION

          The Motion to Compel Response by Plaintiff Rosevianney C. Ogumsi’s to motions filed October 10, 2022, by Defendant Heydar Hamid Shahrokh, D.D.S., an individual, and Heydar Hamid Shahrokh, D.D.S., Inc., dba Comfort Dental Center, for orders compelling Plaintiff’s response to their respective Form Interrogatories, Set One, and Request for Monetary Sanctions is GRANTED as follows.

          Plaintiff is ordered to serve her responses, without objections, to the interrogatories within 30 days of this ruling.

Plaintiff and Plaitinff’s counsel are ordered to pay the Defendants sanctions of $1,170 ($585 each).

Moving party to give notice. 

            Parties who intend to submit on this tentative must send an email to the Court at alhdept3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.