Judge: William A. Crowfoot, Case: 22STCV13792, Date: 2023-02-09 Tentative Ruling

Case Number: 22STCV13792    Hearing Date: February 9, 2023    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT

I.            INTRODUCTION

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 Shahrokh, D.D.S., Inc., dba Comfort Dental Center (erroneously sued as Comfort Dental Center) (Heydar Hamid Shahrokh, D.D.S and Heydar Shahrokh, D.D.S., Inc., collectively, the “Shahrokh Defendants”), 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. 

On July 6, 2022, counsel for the Shahrokh Defendants served the Plaintiff with two Special Interrogatories, Set One, one from each of the Shahrokh Defendants, by email. After receiving no response to either, repeated attempts to meet and confer, and repeated extensions, the Shahrokh Defendants on October 10, 2022, each filed a motion to compel responses by Plaintiff.

The first was a Motion to Compel Response by Plaintiff to Special Interrogatories, Set One, by Heydar Shahrokh, D.D.S., Inc., dba Comfort Dental Center (“1^st MTC”). The second was a Motion to Compel Response by Plaintiff to Special Interrogatories, Set One, by Heydar Shahrokh, D.D.S. (“2^nd MTC”). Ultimately, both motions were set to be heard on February 9, 2023.

On January 31, 2023, Plaintiff filed an Opposition to the 1^st MTC.

On February 1, 2023, Plaintiff filed an Opposition to the 2^nd MTC.

On February 7, 2023, each of the Shahrokh Defendants filed a Reply to Plaintiff’s opposition to their respective motion to compel.

On February 8, 2023, counsel for Plaintiff filed a declaration in support of the above-referenced earlier filed oppositions.

          The following will address both the 1st MTC and the 2nd MTC.

II.          LEGAL STANDARD

If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction. (Code Civ. Proc., § 2030.290, subds. (b), (c).) Failure to timely respond waives all objections, including privilege and work product, unless “[t]he party has subsequently served a response that is in substantial compliance” and “[t]he party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.” (Code Civ. Proc., § 2030.290, subd. (a).) The statute contains no time limit for a motion to compel where no responses have been served. All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. (Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905-906.)

If a motion to compel responses to interrogatories is filed, the Court may impose a monetary sanction against the losing party “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).) Further, “[t]he 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).)

III.        DISCUSSION

Here, on July 6, 2022, each Shahrokh Defendant served the Plaintiff with Special Interrogatories, Set One, by email. (See 1^st MTC, Declaration of Ted D. Conley, Esq., hereinafter “Conley Dec.”, ¶ 3; 2nd MTC, Declaration of Ted D. Conley, Esq., ¶ 3 ). To the Reply filed by each Shahrokh Defendant on February 7, 2023, Defendants’ counsel has attached a declaration stating that on February 6, 2023, Plaintiff responded to the subject discovery. Thus, the 1^st and 2^nd MTCs are now moot.

The responses were untimely, however. Plaintiff was required to respond within “30 days after service of interrogatories…” (C.C.P. § 2030.260(a)) Defendant’s counsel has detailed his attempts to contact Plaintiff’s counsel on August 26, 2022 and September 6, 2022 (See, e.g. Conley Dec. ¶ 4-5). On September 6, 2022, Plaintiff’s counsel responded via email stating that Plaintiff’s counsel did “not recall reading” the August 26, 2022, meet and confer email regarding discovery. (See 1^st MTC, Exhibit D). Subsequently, an extension was granted by Defendant’s counsel to September 27, 2022. Again, no response was received and the motions to compel were filed.  In opposition to each motion, and in the declaration of counsel filed February 8, 2023, Plaintiff and Plaintiff’s counsel assert a number of mitigating circumstances in explanation for the late responses and to call into question the necessity for Defendants’ motions. Having considered these arguments and the declarations of counsel, the Court is unpersuaded, however, that there is substantial justification for Plaintiff’s delayed responses or that the imposition of sanctions would be unjust.

Defendants requests an award of sanctions in the amount of $2,335 in connection with each motion. This is based on an hourly rate of $350 per hour for a total of 6.5 hours plus a $60 filing fee, per motion, for a combined total of $4,670 for both.  The motions and replies were substantially identical, however, and counsel will be appearing once on both motions, so 12.5 hours of time overstates the amount of time experienced counsel reasonably should expend on this matter.  Defendants’ requests for sanctions will be granted but in the reduced aggregate amount of $1,520 ($350 per hour for four hours plus $120 in filing fees).  

IV.         CONCLUSION

Accordingly, the Motion to Compel Response by Plaintiff to Special Interrogatories, Set One, by Heydar Shahrokh, D.D.S., Inc., dba Comfort Dental Center, is DENIED as moot. The Motion to Compel Response by Plaintiff to Special Interrogatories, Set One, by Heydar Shahrokh, D.D.S., is DENIED as moot.

Defendants’ request for monetary sanctions are GRANTED in the aggregate amount of $1,520, payable 60 days from the date of this order.

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.