Judge: Yolanda Orozco, Case: 20STCV38801, Date: 2022-10-17 Tentative Ruling
Case Number: 20STCV38801 Hearing Date: October 17, 2022 Dept: 31
DEMURRER IS SUSTAINED IN PART; MOTION FOR TERINATING SANCTIONS IS DENIED
Background
Antoinette Konkol Grewal (“Plaintiff”) suffers from Mast
Cell Activation Syndrome, Multiple Chemical Sensitivities, and Hematological
Disorders. In November of 2015, Plaintiff became a patient of Robert David
Sibley, M.D. (“Defendant”), the owner and operator of Sibley Spine
Center. Plaintiff alleges that Defendant made sexual advances toward her
during her time as Defendant’s patient. When Plaintiff rejected
Defendant’s sexual advances, Plaintiff alleges that Defendant extorted
Plaintiff by threatening to “turn in” or “report” Plaintiff as participating in
“disability fraud”.
On October 9, 2020, Plaintiff Antoinette Konkol Grewal
filed a Complaint against Defendant Robert David Sibley Jr., M.D. d/b/a Sibley
Spine Center, and Doe 1 to 100.
On April 14, 2022, Plaintiff filed the operative Second
Amended Complaint (SAC) asserting causes of action for:
1) Fiduciary
Duty Breach;
2) Abuse
of Dependent Adult;
3) Unfair
Practices
4) False
Pretense Taking;
5) Negligence;
6) Medical
Malpractice;
7) Breach
of Verbal Contract; and
8) Extortion,
Intentional Infliction of Emotional Harm.
On June 13, 2022,
Defendant filed a demurrer.
Plaintiff filed a
Notice of Errata to the SAC and an opposition to the demurrer on October 12,
2022.
No reply or
response from the Defendants has been filed with the Court.
On June 22, 2022,
Defendants filed a motion for terminating sanctions. Plaintiff served opposing
papers on October 11, 2022. No reply was filed.
Legal Standard
demurrer
A demurrer can be used only
to challenge defects that appear on the face of the pleading under attack or
from matters outside the pleading that are judicially noticeable. (Blank v.
Kirwan (1985) 39 Cal.3d 311, 318.)
“To survive a demurrer, the complaint need only allege facts sufficient
to state a cause of action; each evidentiary fact that might eventually form
part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School
Dist. (2012) 53 Cal.4th 861, 872.)
For the purpose of testing the sufficiency of the cause of action, the
demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992)
2 Cal.4th 962, 966-967.) A demurrer
“does not admit contentions, deductions or conclusions of fact or law.” (Daar
v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)
Motion for Terminating Sanctions
Courts have the authority to issue monetary sanctions, evidentiary sanctions, or terminating sanctions against parties engaging in misuse of the discovery process after giving the parties proper notice and the opportunity to be heard. (Code Civ. Proc., § 2023.030.) The Discovery Act defines misuse of discovery as including (1) a failure to respond or to submit to an authorized method of discovery (id. § 2023.010, subd. (d)) and (2) disobedience to a court order to provide discovery (id., subd. (g)). ¿
The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. If a lesser sanction fails to curb misuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) “The penalty should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.” (Wilson v. Jefferson (1985) 163 Cal.App.3d 952, 959.) ¿
In determining whether
sanctions should be imposed, courts consider the totality of the circumstances,
including the “conduct of the party to determine if the actions were willful;
the detriment to the propounding party; and the number of formal and informal
attempts to obtain the discovery.” (Lang v. Hochman (2000) 77
Cal.App.4th 1225, 1246.) Generally, two facts are prerequisites to the
imposition of nonmonetary sanctions: (1) absent unusual circumstances, there
must be a failure to comply with a court order and (2) the failure must be
willful. (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315,
1327.)
Meet and Confer
Before filing a demurrer, the demurring party is required to
meet and confer with the party who filed the pleading demurred, in person or
telephonically, to determine whether an agreement can be reached through a
filing of an amended pleading that would resolve the objections to be raised in
the demurrer. (Code Civ. Proc. (CCP) § 430.41.)
Request for Judicial Notice
Defendants
request Judicial Notice of the following exhibits:
1) Defendant,
Dr. Sibley’s Motion to Compel Further Responses to Form Interrogatories (Set
One), and request for Monetary Sanctions in the Amount of $2760 filed 8/27/21.
2) Defendant,
Dr. Sibley’s Motion to Compel Further Responses to Special Interrogatories (Set
One), and request for Monetary Sanctions in the Amount of $4560, filed 8/27/21.
3) Defendant,
Dr. Sibley’s Motion to Compel Further Responses to Request for Production of
Documents (Set One), and request for Monetary Sanctions in the Amount of $3660,
filed 8/27/21.
4) Defendant,
Dr. Sibley’s Motion to Compel Further Responses to Requests for Admissions (Set
One), and request for Monetary Sanctions in the Amount of $3660, filed 8/27/21.
5) This
Court’s Minute Order of November 16, 2021.
6) This
Court’s Nunc Pro Tunc Minute Order of November 16, 2021.
7) Notice
of Ruling from November 2, 2021.
8) Email
of 11/19/2021 from Vip Bhola to Plaintiff’s counsel, Mr. Mounier.
9) Email
of 4/12/2022 from Vip Bhola to Plaintiff’s counsel, Mr. Mounier.
10) Email of April
14, 2022 from Vip Bhola to Plaintiff’s counsel, Mr. Mounier.
11) Email of 4/25/22
at 10:30 am Vip Bhola to Plaintiff’s counsel, Mr. Mounier.
The Court may
take judicial notice of “facts and propositions that are not reasonably subject
to dispute and are capable of immediate and accurate determination by resort to
sources of reasonably indisputable accuracy.” (Evid. Code § 452(h).) The Court
may take judicial notice of records of any court of record of the United
States. (Id. at § 452(d)(2).) However, the court may only
judicially notice the existence of the record, not that its contents are the
truth. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.)
Although Judicial
Notice of Exhibits No. 1 to 7 is proper because they are records of a court of
record of the United States, Defendants do not provide any basis as to why
Judicial Notice is proper to Exhibits 8 through 11.
Judicial Notice
is GRANTED as to Nos. 1 to 7 and DENIED as to Exhibits 8 to 11.
Discussion
Late Filed Papers
“No paper may be rejected for filing on the ground that it was untimely submitted for filing. If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate.” (Cal. R. of Crt. Rule 3.1300 subd. (d).)
The Court recognized that Plaintiff’s opposing papers to the demurrer and the motion for terminating sanctions were untimely filed. However, Defendant has not filed a response requesting additional time to respond. Accordingly, the Court considers the papers on the merits.
I. Demurrer
Defendant
demurrers to Plaintiff’s entire SAC on the basis that it is uncertain and fails
to state facts sufficient to constitute a cause of action. (Code Civ. Proc. §
430.10 subds. (e) and (f).)
1 COA: Breach of Confidential and Fiduciary Duties
The elements for a breach of fiduciary duty cause of action are “the existence of a fiduciary relationship, its breach, and damage proximately caused by that breach.” (Thomson v. Canyon (2011) 198 Cal.App.4th¿594, 604.) A fiduciary relationship is recognized to exist between physician and patient. (Stafford v. Shultz (1954) 42 Cal.2d 767, 778.)
Plaintiff asserts she became a patient of Defendant on or
about November 2015 and that Defendant was responsible for her medical care through
2019. (SAC ¶ 27.) Plaintiff asserts Defendant had a duty to not harm her,
including to not sexually harass her or threaten to report her for disability
fraud, and that Defendant breached these duties. (Id. 28.1, 28.2.)
Defendant induced Plaintiff to agree to an oral agreement where she was
promised full treatment as compensation to Plaintiff for designing and planning
IT Network System for Defendants’ Medical Practice. (Id. 28.3.)
Plaintiff also alleges Defendant Sibley represented that the “Sibley full
treatment” would provide relief and that the cost and value of such services
were about $30,000.00. (Id.) Defendants breached the confidential relationship
between Plaintiff and Defendants by not setting a schedule for when Defendant
would perform as promised, and by changing the conditions of the nonwritten
agreement despite Plaintiff’s performance under the oral contract. (Id.)
Instead, Defendants breached the confidential and fiduciary relationship by
pressuring Plaintiff to enter a sexual relationship, refusing to provide
treatment as promised, or paying Plaintiff instead of providing treatment. (Id.)
A “fiduciary relationship is a recognized legal relationship such as guardian and ward, trustee and beneficiary, principal and agent, or attorney and client, whereas a 'confidential relationship' may be founded on a moral, social, domestic, or merely personal relationship as well as on a legal relationship." (Barbara A. v. John G. (1983)145 Cal. App. 3d 369, 382.) Here, Plaintiff has pled sufficient facts to show that a confidential or fiduciary relationship existed between Plaintiff and Defendants and that Defendants breached the duty and caused damage to Plaintiff. Moreover, the Court finds that the first cause of action is not uncertain such that Defendants cannot reasonably determine what they are required to respond to or admit or deny or what counts or claims are directed against the Defendants. (See Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)
The demurrer to the first cause of action is OVERRULED.
2nd COA: Financial Abuse and Neglect, Unruh Civil Rights Act section 51.9
California Civil Code section 51.9 prohibits sexual harassment in professional relationships and services. In the relevant part Section 51.9 states:
“(a) A person is liable in a cause of
action for sexual harassment when the plaintiff proves all of the following
elements:
(1) There is a business, service, or
professional relationship between the plaintiff and defendant or the defendant
holds himself or herself out as being able to help the plaintiff establish a
business, service, or professional relationship with the defendant or a third
party. Such a relationship may exist between a plaintiff and a person,
including, but not limited to, any of the following persons:
(A) Physician, psychotherapist, or dentist . . .
(2) The defendant has made sexual
advances, solicitations, sexual requests, demands for sexual compliance by the
plaintiff, or engaged in other verbal, visual, or physical conduct of a sexual
nature or of a hostile nature based on gender, that were unwelcome and
pervasive or severe.
(3) The plaintiff has suffered or will suffer economic loss or disadvantage or personal injury, including, but not limited to, emotional distress or the violation of a statutory or constitutional right, as a result of the conduct described in paragraph (2).”
(Civ. Code, § 51.9.)
The California Supreme Court explained that section 51.9 requires the harassing conduct to be “pervasive or severe,” the same words that define liability under Title VII and California’s FEHA. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1039.)
The SAC alleges that Defendants entered into a doctor-patient relationship with Plaintiff. (SAC ¶ 51.) That the Sibley Spin Center is a “business establishment” subject to the Unruh Civil Rights Act. (Id.) Plaintiff alleges that Dr. Sibley pressured Plaintiff to enter into a sexual relationship and that when Plaintiff rejected Dr. Sibley’s advances, he retaliated by withholding promised medical treatment and threatening to turn her in for disability fraud. (Id.)
Plaintiff fails to allege with specificity if the harassing
sexual conduct was severe and pervasive. Moreover, Plaintiff’s second cause of
action includes allegations of financial and elder abuse.
Plaintiff asserts she is a disabled adult and that Defendant financially abused Plaintiff by concealing from her funds, assets, and property. (SAC ¶¶ 50, 51). Plaintiff also alleges that Defendant took advantage of the relationship between the parties to unduly influence Plaintiff to enter into a contract to take advantage of her. (SAC ¶¶ 52, 53.)
Elder financial abuse under the California Welfare and Institution Code sections 15710.07 and section 15610.30 are different provisions and must be pled separately.
Under section 15610.07:
“Abuse of an elder or a dependent
adult” means either of the following:
(a) Physical abuse, neglect, financial
abuse, abandonment, isolation, abduction, or other treatment with
resulting physical harm or pain or mental suffering.
(b) The deprivation by a care custodian
of goods or services that are necessary to avoid physical harm or mental
suffering.”
(Welf. & Inst. Code, § 15610.07.)
Under section 15610.07, “for the conduct to qualify as elder abuse, it must cause elder to suffer physical harm, pain or suffering.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 409.) “A separate provision, Section 15610.30(a), contains a different definition of ‘financial abuse’ that does not require physical harm, pain, or mental suffering.” (Davis v. RiverSource Life Insurance Company (N.D. Cal. 2017) 240 F.Supp.3d 1011, 1019.)
Section 15610.30 states:
“Financial abuse” of an elder or
dependent adult occurs when a person or entity does any of the following:
(1) Takes, secretes, appropriates,
obtains, or retains real or personal property of an elder or dependent adult
for a wrongful use or with intent to defraud, or both.
(2) Assists in taking, secreting, appropriating,
obtaining, or retaining real or personal property of an elder or dependent
adult for a wrongful use or with intent to defraud, or both.
(3) Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence [.]”
(Welf. & Inst. Code, § 15610.30.)
Moreover, under the second cause of action, Plaintiff also pleads violations of Penal Code sections 497, Civil Code sections 2223 and 2224, and treble damages under section 3345. Therefore, it is unclear what specific cause of action Plaintiff is pleading.
Accordingly, the Court agrees that the second cause of
action is uncertain and ambiguous. The demurrer to the second cause of action
is SUSTAINED WITH LEAVE TO AMEND.
3rd COA: Unfair Practices
Business and Professions Code section 17200 (“UCL”) prohibits
“any unlawful, unfair or fraudulent business act or practice.” (Bus. &
Prof. Code, § 17200; see Clark v. Superior Court (2010)
50 Cal.4th 605, 610.) To plead this statutory claim, the pleadings must state
with reasonable particularity the facts supporting the statutory elements of
the violation. (Khoury v. Maly's of California, Inc. (1993)
14 Cal.App.4th 612, 619.)
Plaintiff asserts that her UCL claim is based on violations
of one or more statutes or regulations such as “Civil Code §§ 51.9, 3345; Penal
Code § 496; and, Welfare and Institutions Code §§ 15610.07, 15610.23, 15610.30,
15610.53 & 15610.57.” (SAC ¶ 57.) Alternatively, Plaintiff asserts that
Defendants’ business practices are unfair because the utility of Defendants’
policy/practices violates the laws referred to in the SAC. (Id. ¶ 68.)
Plaintiff’s SAC fails to state a claim for violations of the UCL with the requisite specificity. Section 17200 “establishes three varieties of unfair competition—acts or practices which are unlawful, or unfair, or fraudulent.” (Cel–Tech Communications, Inc. v. Los Angeles Cellular Tel. Co. (1999) 20 Cal.4th 163, 180.) A plaintiff must allege an unlawful act separate and apart from the alleged violation of the statute itself, with supporting facts showing the illegality. (People v. McKale (1979) 25 Cal.3d 626, 635.) What is clear, however, is that the facts supporting a cause of action under the Business and Professions Code must be pled with reasonable particularity. (Khoury, supra, 14 Cal.App.4th at 619.)
Here, since Plaintiff’s second cause of action is unclear, it is unclear what statutory violations and what ultimate facts support Plaintiff’s claim for violations of the UCL.
The demur to the third cause of action is SUSTAINED WITH LEAVE TO AMEND.
4th COA: Misappropriation
by False Pretenses
“In 1927, the Legislature consolidated the separate common law crimes of larceny, embezzlement, and theft by false pretense in Penal Code section 484, subdivision (a).” (Bell v. Feibush (2013) 212 Cal.App.4th 1041, 1048, see also Siry Investment, L.P. v. Farkhondehpour (2022) 13 Cal.5th 333, 350.) “Penal Code section 484, subdivision (a) provides that a person is guilty of theft if the person ‘knowingly and designedly’ defrauds another person of money or personal property. (Citation.) Theft by false pretenses arises under Penal Code section 484 if the victim justifiably relied on a misrepresentation by the perpetrator and suffered damage as a result. (Citation.)” (Galeotti v. International Union of Operating Engineers Local No. 3 (2020) 48 Cal.App.5th 850, 862.)
Plaintiff asserts she is entitled to treble damages under Penal Code section 496(c) for violation of section 484 under Bell v. Feibush (2013). The SAC alleges that Defendant obtained Plaintiff’s trust when he made false promises that he would give her the “Sibley full treatment” as compensation for designing the IT Network for Defendant’s Medical Practices. (SAC ¶ 76.) Defendant abused Plaintiff’s trust when he began to sexually harass Plaintiff and obtain her IT Network design without compensation. (Id.) Plaintiff asserts her reliance on Defendant was justified because of the confidential relationship between Plaintiff and Defendant and Defendant’s false and misleading documents. (Id.)
Plaintiff does not state what the false or misleading documents were or how they induced Plaintiff’s reliance, but Plaintiff has pled sufficient facts to show that a confidential and/or fiduciary relationship existed between Plaintiff and Defendant that made her rely on Defendant’s representations regarding compensation in the form of treatment as she designed the IT Network for Defendants.
Accordingly, the fourth cause of action is sufficiently pled and is not uncertain. The demurrer as to the fourth cause of action is OVERRULED.
5th COA: Negligence
The necessary elements for a negligence cause of action are: (1) legal duty of care; (2) a breach of that duty; (3) proximate cause resulting in injury; and (4) damages. (See McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)
Plaintiff alleges that Defendant owed a duty to Plaintiff by virtue of agreeing to provide care and treatment to Plaintiff (SAC ¶ 79.); that Defendant breached the duty for engaging in Elder Abuse and violating her Civil Rights. (Id. ¶ 80.); and that Defendant further breached his by failing to provide care and safe treatment and by withholding treatment. (Id. ¶ 83.)
Plaintiff stated that Defendant withheld treatment but does not specify what treatment Defendant provided that was unsafe. Second, Plaintiff does not specify what her injury was or whether it was merely an economic loss.
Accordingly, the demurrer to the fifth cause of action is SUSTAINED WITH LEAVE TO AMEND.
6th COA: Professional
Negligence/Medical Malpractice
“The elements of a cause of action in tort for professional negligence are: the duty of the professional to use such skill, prudence and diligence as other members of the profession commonly possess and exercise; a breach of that duty; a proximate causal connection between the negligent conduct and the resulting injury; and actual loss or damage resulting from the professional's negligence. A plaintiff in a case of medical malpractice may recover damages for emotional distress.” (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1066–1067.)
Defendant asserts that although Plaintiff states she received treatment through 2019, no specific date is provided, and it makes it likely that the case is barred by the one-year statute of limitations. Secondly, Plaintiff did not provide a Notice of Intent to Sue under Code of Civil Procedure section 364.
Plaintiff asserts that under section 365, the failure to comply with section 365 “shall not invalidate any proceedings of any court of this state, nor shall it affect the jurisdiction of the court to render a judgment therein.”
Nevertheless, without a specific date or time frame, Defendant cannot know if the action is barred by the statute of limitations. Moreover, Plaintiff has not alleged that Defendant provided services in a negligent manner, only those services were withheld. Secondly, the medical services were withheld pursuant to a contract dispute not out of an obligation to provide services. Plaintiff asserts that Dr. Sibley was her medical doctor but does not state what medical treatment he was required to provide, unrelated to the contract dispute and if such treatment was provided in a negligent manner.
Accordingly, the demurrer to the sixth cause of action is SUSTAINED WITH LEAVE TO AMEND.
7th COA: Breach of Non-Written Contract
“To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damage to the plaintiff. [Citation.]” (Richmond v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)
Plaintiff alleges that Defendant took advantage of their relationship of trust and confidence to unduly influence Plaintiff to enter into an oral agreement. (SAC ¶ 28.3.) Defendants promised Plaintiff the “Sibley full treatment” as compensation for designing and planning an IT Network System for Defendant’s Medical Practice and Plaintiff performed all of her contractual responsibilities except that Defendant prevented her from completing certain contractual responsibilities and Defendant never implement the IT Network system (Id.) Defendant breached the oral contract by not setting a schedule for performance on their part, such as providing “the Full Sibley treatment.”
Taking Plaintiff’s allegations as true for purposes of a demurrer, the Court finds that Plaintiff’s seventh cause of action is not uncertain and states sufficient facts to support a cause of action for breach of contract.
The demurrer to the seventh cause of action is OVERRULED.
8th
COA: Extortion
Extortion under Penal Code section 518 “is the obtaining of property or other consideration from another, with his or her consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right.” (Pen. Code, § 518.)
“Fear, such as will constitute
extortion, may be induced by a threat of any of the following:
1. To do an unlawful injury to the
person or property of the individual threatened or of a third person.
2. To accuse the individual threatened,
or a relative of his or her, or a member of his or her family, of a crime.
3. To expose, or to impute to him, her,
or them a deformity, disgrace, or crime.
4. To expose a secret affecting him,
her, or them.
5. To report his, her, or their immigration status or suspected immigration status.”
(Pen. Code, § 519.)
The SAC asserts that in order to cajole and frighten Plaintiff into giving up her right to enforce the oral contract and to waive her rights to compensation for services performed, Dr. Sibley in 2019 threatened to “turn in” or “report” Plaintiff for disability fraud. (SAC ¶¶ 98, 99.)
The Court finds that Plaintiff’s eighth cause of action is
not uncertain and states sufficient facts to support a cause of action or
extortion. Accordingly, the demurrer to the eighth cause of action is
OVERRULED.
II. Terminating Sanctions
Defendant asserts that Plaintiff willfully violated the November 02, 2021, Court Order by failing to provide further discovery responses and failing to comply with discovery obligations.
Defendants request that Plaintiff’s complaint and first and second complaint be stricken or alternatively that the Request for Admissions, Set One be admitted and that monetary sanctions in the amount of $17,790.00 be imposed on Plaintiff and her Counsel, John Mounier.
Defendants filed the Motion for terminating sanctions on June 22, 2022. Defendant asserts that as of the date of filing this instant motion, June 2022, Plaintiff has not provided Further Responses and that this has prejudiced Defendants because at the time trial was set for August 22, 2022.
The November 02, 2021, Court Order required Plaintiff to provide further responses to the Request for Admission, Set One within 20 days. Plaintiff asserts she complied with the November Order six weeks later when she served the December 14, 2021, additional further responses to the Request for Admission, Set One. (Add. Opp. at p. 4, ¶ 4.) Plaintiff asserts that because 45 days have passed since a request for further responses to request for admissions can be made, Defendants have waived their right to compel further responses to requests for admission. (Code of Civ. Proc., § 2033.290 subd. (c).) The 45-day limit also applies to other Motions to Compel. (See Code of Civil Proc., §§ 2030.300(c) [interrogatories], 2031.310(c) [production requests], and 2033.290(c) [requests for admission].)
Plaintiff also asserts that no meet and confer took place regarding Plaintiff serving additional responses to the request for admissions nor is there an agreement between the parties to bring a motion to compel at a later date. (Add. Opp. at p. 8, ¶ 8.) Lastly, Defendant failed to comply with California Rules of Court, rule 3.1345 by not filing a separate statement.
Defendant also maintains that Plaintiff violated the Court’s November 16, 2021 Order by failing to provide further responses to Form Interrogatories, Special Interrogatories, and Request for Production of documents.
The Court’s nunc pro tunc Order of November 16, 2021, stated that Defendant could raise the issue of sanctions for fees incurred for bringing the Motion to Compel further responses at some later time. The Court found that Plaintiff had served supplemental responses and found that Defendant’s Motion was MOOT. (Min. Or. 11/16/21.)
Plaintiff again takes the position that no agreement exists between the parties to bring a motion to compel at a later date. Moreover, Defendant has not provided a meet and confer declaration required to bring a motion to compel and that more than 45 days have passed for Defendants to bring a Motion to Compel further. Moreover, there is no separate statement.
The facts before the Court appear to establish that Plaintiff has substantially complied with the November 2, 2021, and the November 16, 2021, Court Orders. Defendants have not explained why the further responses Plaintiff provided were not adequate and required a further response or why another motion to compel further discovery was not made.
Accordingly, Defendants’ Motion for terminating sanctions is DENIED.
Conclusion
Defendant’s demurrer as to the first, fourth, seventh, and eighth causes of action are OVERRULED.
The demurrer as to the second, third, fifth, and sixth cause of action are SUSTAINED WITH 20 DAYS LEAVE TO AMEND.
Defendants’ request for terminating sanctions is DENIED.
Defendant to give notice.