Judge: Yolanda Orozco, Case: 20STCV38801, Date: 2023-05-05 Tentative Ruling
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**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.
Case Number: 20STCV38801 Hearing Date: May 5, 2023 Dept: 31
PROCEEDINGS: MOTION
FOR TERMINATING SANCTIONS
MOVING PARTY: Defendant
Robert David Sibley, Jr.
RESP. PARTY: Plaintiff
Antoinette Konkol Grewal
MOTION
FOR TERMINATING SANCTIONS
TENTATIVE RULING
Defendant’s request for Terminating
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 22, 2022,
Defendant filed a motion for terminating sanctions. Plaintiff served opposing
papers on October 11, 2022. No reply was filed but Defendant did file
objections.
On October 17,
2022, the Court CONTINUED the hearing.
Legal Standard
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.)
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 o Exhibits 8 to 11.
Discussion
On October 17, 2022, the
Court CONTINUED the hearing and ordered Defendant to file a supplemental brief
less than five pages long explaining what additional supplemental responses
Plaintiff promised, what court order was violated, and if the email discussions
between the parties related to a separate and different discovery request other
than the one that resulted in the November 2021 Orders. (See Min. Or. 10/17/22.)
Defendant failed to file a
supplemental brief. Plaintiff submitted a supplemental brief representing that
the parties have reached a “new deal” regarding the discovery at issue.
Therefore, Defendant’s
Motion for Terminating Sanctions is DENIED.
Conclusion
Defendant’s request for Terminating
Sanctions is DENIED.
Defendant to give notice.