Judge: William A. Crowfoot, Case: 22STCV13792, Date: 2023-02-17 Tentative Ruling

Case Number: 22STCV13792    Hearing Date: February 17, 2023    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT

I.            INTRODUCTION

On April 26, 2022, plaintiff Rosevianney C. Ogumsi (“Plaintiff”) filed this action against defendants Richard Dale Gentile, D.D.S., Heydar Hamid Shahrokh D.D.S., and Heydar Hamid Shahrokh D.D.S. Inc. dba Comfort Dental Center (erroneously sued as “Comfort Dental Center”) (collectively, “Defendant”). On September 26, 2022, Plaintiff filed the operative Second Amended Complaint, asserting the following causes of action: (1) professional negligence (dental malpractice); (2) intentional infliction of emotional distress; (3) negligent infliction of emotional distress; (4) unlawful, unfair, and/or fraudulent business practices under Business and Professions Code § 17200, et seq.; and (5) defamation.

On October 10, 2022, Defendants Heydar Hamid Shahrokh D.D.S., and Heydar Hamid Shahrokh D.D.S. Inc. dba Comfort Dental Center (collectively, “Movants”) filed the instant motion to compel Plaintiff’s response to Movants’ demand for specific statement of damages. Movants also seek monetary sanctions against Plaintiff and her counsel of record, jointly and severally, in the amount of $2,335.00.

On February 2, 2023, Plaintiff filed an opposition to the instant motion.

On February 10, 2023, Movants filed their reply.

II.          LEGAL STANDARD

In an action to recover damages for personal injury or wrongful death, the defendant may at any time request a statement setting forth the nature and amount of damages being sought.  The request shall be served on the plaintiff, who shall serve a responsive statement as to the damages within 15 days.  In the event that a response is not served, the defendant, on notice to the plaintiff, may petition the court in which the action is pending to order the plaintiff to serve a responsive statement.  (Code Civ. Proc., § 425.11, subd. (b).) 

III.        DISCUSSION

As a preliminary matter, it is noted in Plaintiff’s opposition and Movants’ reply that Plaintiff served the statement of damages on Movants on January 30, 2023. (Opposition at pg. 3; Reply, Conley Decl. ¶3(c), Exh. C.) Consequently, the instant motion has been rendered moot.  It is further noted that Plaintiff failed to properly serve her opposition on Movants. (Reply, Conley Decl. ¶ 3(d), Exh. D.) The Court admonishes Plaintiff’s counsel for this failure, and it declines to address the substantive arguments raised in the opposition. Because only the issue of sanctions remains, the Court declines to continue this matter based on the noted failure.

A.   Sanctions

In their motion, Movants seeks monetary sanctions, jointly and severally, against Plaintiff and her counsel of record in the amount of $2,335. (Notice of Motion at pg. 2; Motion at pp. 6-7, Conley Decl. ¶ 10.) Movants’ counsel claims that, at a rate of $350 per hour, he spent 1 hour meeting and conferring with Plaintiff’s counsel, 3 hours preparing the instant motion, and estimates 2.5 hours in preparing a reply brief and attending the hearing. (Conley Decl. ¶ 10.)

Movants acknowledge, however, that there is uncertain authority to award sanctions in this instance.  Movant writes as follows,

“The statute does not provide for costs and fees in connection with such motion. And, since this procedure is outside the Discovery Act, the Act's sanctions provision (C.C.P. § 2023.010 et seq.) cannot be utilized. Nonetheless, dictum in one case supports such an award: ‘[D]efendants should not have been placed in a position where they were obligated to make a motion to obtain information to which they were lawfully entitled … [T]he court would have been justified in requiring Argame (or more appropriately her counsel) to reimburse defendants for costs incurred in making such a motion.” The Rutter Group, Cal. Prac. Guide Civ. Pro. Before Trial, Chapt. 8K-1, § 8:1764, citing Argame v. Werasophon, (1997) 57 CA4th 616, 618, fn. 3.  

In the event this Court issues an order compelling service of a response to the Demand for Specific Statement of Damages, monetary sanctions are appropriately awarded based on the foregoing authorities. Consequently, monetary sanctions are requested in the amount of $2,335.00. [See Conley Dec., ¶ 10, hereto]

(Motion, pp. 6-7.)  Since the Court has found the motions to be moot, there is nothing to compel and the Court declines to grant sanctions based on uncertain authority.

In the event, the Court finds that the amount requested in monetary sanctions here is excessive. Up to this point, Movants have filed several discovery motions based on Plaintiff’s failure to respond to various discovery requests, and for some of these motions, the Court has awarded monetary sanctions. The legal issue here is uncomplicated as is the motion. No compelling argument of prejudice requires the Court to embrace the Rutter Group analysis of Argame in this instance.

Accordingly, the request for sanctions is DENIED.

IV.         CONCLUSION

Defendants Heydar Hamid Shahrokh D.D.S., and Heydar Hamid Shahrokh D.D.S. Inc. dba Comfort Dental Center’s motion to compel Plaintiff’s response to Movants’ demand for specific statement of damages is DENIED as moot. Also, their request for monetary sanctions is DENIED.

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.