Case Number: BC696384 Hearing Date: March 21, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEFENDANT FARSHEED NIKBAKHT, M.D.’S MOTION TO COMPEL RESPONSES TO DISCOVERY AND TO DEEM ADMITTED REQUESTS FOR ADMISSIONS; GRANTED

On March 2, 2018, Plaintiffs Gerald Sherman and Nuria Sherman (collectively, “Plaintiffs”) filed this action against Defendants Pacifica Hospital of the Valley, Farsheed Nikbakht, M.D. (“Defendant”), and Albino Ong, M.D. (collectively, “Defendants”) for medical malpractice relating to care and treatment rendered on December 27, 2016. Defendant moves to compel Plaintiffs’ responses to discovery, to deem admitted requests for admissions, and monetary sanctions. Five motions are set for hearing on March 21, 2019 and three motions are set for hearing on March 22, 2019. The Court rules on all eight (8) motions in this Order and the hearings set for March 22 are taken off-calendar.

Compel Responses

On September 28, 2018, defense counsel served Set One of Form Interrogatories, Special Interrogatories, and Request for Production on Plaintiffs. (Declaration of Jessica Munoz, ¶ 2.) Plaintiffs failed to respond and failed to request an extension of time in which to respond. (Munoz Decl., ¶ 4.) Defendant moves to compel Plaintiffs’ responses to discovery.

Where a party fails to serve timely responses to discovery requests, the court may make an order compelling responses. (Code Civ. Proc., §§ 2030.290, 2031.300; Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403.) A party that fails to serve timely responses waives any objections to the request, including ones based on privilege or the protection of attorney work product. (Code Civ. Proc., §§ 2030.290, subd. (a), 2031.300, subd. (a).) Unlike a motion to compel further responses, a motion to compel responses is not subject to a 45-day time limit and the propounding party has no meet and confer obligations. (Sinaiko Healthcare Consulting, Inc., supra, 148 Cal.App.4th at p. 404.)

Plaintiffs filed no opposition to these Motions and it is undisputed they failed to serve timely responses to Defendant’s discovery requests. Accordingly, the Motions to compel Plaintiffs’ responses to discovery are GRANTED. Each Plaintiff is ordered to serve verified responses, without objection, to Defendant’s Form Interrogatories, Special Interrogatories, and Request for Production, within twenty (20) days of the date of this Order.

Deem Admitted

On September 28, 2018, defense counsel served Requests for Admissions on Plaintiffs. (Declaration of Jessica Munoz, ¶ 2.) Plaintiffs failed to timely respond or to request an extension on responses. (Munoz Decl., ¶ 4.) Defendant seeks an order deeming admitted requests for admissions.

Where a party fails to timely respond to a request for admission, the propounding party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted. (Code Civ. Proc., § 2033.280, subd. (b).) The party who failed to respond waives any objections to the demand, unless the court grants them relief from the waiver, upon a showing that the party (1) has subsequently served a substantially compliant response, and (2) that the party’s failure to respond was the result of mistake, inadvertence, or excusable neglect. (Code Civ. Proc., § 2033.280, subds. (a)(1)-(2).) The court shall grant a motion to deem admitted requests for admissions, “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.” (Code Civ. Proc., § 2033.280, subd. (c).)

Plaintiffs filed no opposition to this Motion to deem admitted and it does not appear Plaintiffs served substantially compliant responses prior to the hearing on this Motion. Accordingly, the Motion to deem admitted requests for admissions as to each Plaintiff is GRANTED.

Monetary Sanctions

Where the court grants a motion to compel responses, sanctions shall be imposed against the party who unsuccessfully makes or opposes a motion to compel, unless the party acted with substantial justification or the sanction would otherwise be unjust. (Code of Civ. Proc., § 2030.290, subd. (c).) Where a party fails to provide a timely response to requests for admission, “[i]t is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.” (Code of Civ. Proc., § 2033.280, subd. (c).)

Defendant’s request for monetary sanctions is GRANTED and imposed against Plaintiffs and counsel, jointly and severally, in the reduced amount of $625.00 per each Plaintiff (for a total of $1,250.00), to be paid within twenty (20) days of the date of this Order.

Moving party to give notice.