Case Number: BC589184 Hearing Date: September 06, 2019 Dept: 4A

Motion to Reopen Discovery and Motion to Compel Responses to Supplemental Interrogatories (Set One)

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On July 27, 2015, Plaintiff Chris LaVrar (“Plaintiff”) filed a complaint against Defendants City of Los Angeles, County of Los Angeles, and Hollywood Chamber of Commerce for negligence, premises liability, dangerous condition of public property, and public employee liability for wrongful acts or omissions based on a trip and fall on a sidewalk on December 11, 2014.

On November 7, 2016, Plaintiff filed an amendment designating Ned Pan, Inc. as Doe 1.

On October 5, 2017, Plaintiff filed an amendment designating Hollywood Historic Trust as Doe 2.

On July 23, 2019, the Court dismissed Defendant City of Los Angeles with prejudice.

On August 5, 2019, Defendant Ned Pan, Inc. filed a motion to re-open discovery pursuant to California Code of Civil Procedure section 2024.050.

On August 9, 2019, Defendant Ned Pan, Inc. filed a motion to compel Plaintiff’s responses to Supplemental Interrogatories (Set One) pursuant to California Code of Civil Procedure section 2030.290.

Trial is set for November 4, 2019.

PARTY’S REQUESTS

Defendant Ned Pan, Inc. (“Moving Defendant”) asks the Court to re-open fact discovery for Moving Defendant to take Plaintiff’s deposition and to take the deposition of Mayo Clinic’s person most qualified.

Moving Defendant also asks the Court to compel Plaintiff to provide verified responses without objections to Supplemental Interrogatories (Set One) to Moving Defendant due to Plaintiff’s failure to provide timely responses.

Moving Defendant further asks the Court to impose $2,210 in monetary sanctions against Plaintiff and his counsel of record for their abuse of the discovery process.

LEGAL STANDARD

Motion to Reopen Discovery

California Code of Civil Procedure section 2024.050 states: “(a) On motion of any party, the court may grant leave to reopen discovery after a new trial date has been set. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(b) In exercising its discretion to grant or deny this motion, the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following: (1) The necessity and the reasons for the discovery. (2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier. (3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party. (4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.

(c) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to extend or to reopen discovery, 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.”

Motion to Compel

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, subd. (b).) 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.)

Under California Code of Civil Procedure section 2023.030, subd. (a), “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction 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.” Failing to respond or to submit to an authorized method of discovery is a misuse of the discovery process. (Code of Civ. Proc. § 2023.010, subd. (d).)

Sanctions are mandatory in connection with motions to compel responses to interrogatories against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel unless the court “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).)

California Rules of Court, rule 3.1348, subdivision (a) states: “The 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.”

DISCUSSION

Motion to Reopen Discovery

Moving Defendant argues there is good cause to reopen discovery because Plaintiff underwent a discectomy procedure on July 12, 2019 and Plaintiff is alleging injuries to his spine. (Motion, pp. 5:6-6: 14.) Moving Defendant also argues there is good cause to reopen discovery because there is a reasonable question as to whether the surgery was properly recommended and whether the surgeon was qualified to perform the procedure since that surgeon did not attend a spine fellowship at the Mayo Clinic. (Ibid.) Moving Defendant raises the need to depose Plaintiff and to question the PMQ at Mayo Clinic regarding this recent surgery. (Motion, pp. 6:17-7:26.) Moving Defendant argues this will not prevent trial to proceed at the current date because there is sufficient time to conduct these depositions prior to trial on November 4, 2019. (Motion, p. 8:2-8:9.) Moving Defendant also contends that it will be prejudiced if this motion is not granted because it will not have key information pertaining to Plaintiff’s injuries and the necessity of Plaintiff’s most recent surgery. (Motion, pp. 8:11-9:12.)

Plaintiff is willing to submit to a limited deposition for no more than an hour regarding Plaintiff’s most recent surgery because Plaintiff has been deposed three times already. (Opposition, pp. 2:10-3:14.) Plaintiff argues there is no good cause for the deposition of the PMQ at Mayo Clinic because this is not the most logical deposition to ascertain the qualifications of the surgeon who operated on Plaintiff. (Motion, pp. 3:17-4:8.)

The Court finds there is good cause to reopen discovery for Moving Defendant to depose Plaintiff and to depose the PMQ at the Mayo Clinic. Plaintiff’s most recent surgery puts into question the necessity and adequacy of such surgery. The Court agrees with Plaintiff that the deposition should be limited only to questions related to the most recent surgery. The Court disagrees that the deposition should be limited by time because there is no indication as to how long such a deposition should take. There is good cause for the deposition of the PMQ at the Mayo Clinic. It is Moving Defendant’s choice as to whom it decides to depose in order to attack the qualifications of Plaintiff’s surgeon.

Moving Defendant has not requested a specific amount of sanctions for this motion, and thus the Court cannot determine a reasonable amount of sanctions to impose against Plaintiff in connection with this motion.

Motion to Compel

On February 18, 2019, Moving Defendant served Supplemental Interrogatories (Set One) on Plaintiff by U.S. Mail. (Aghakhani Decl., ¶ 2, Exh. 1.) Moving Defendant had not received the outstanding responses as of the time Bryan Aghakhani signed his declaration on August 9, 2019. (Aghakhani Decl., ¶ 3.)

The Court finds there to be good cause to grant the motion to compel due to Plaintiff’s failure to provide timely responses to the outstanding discovery. Plaintiff does not oppose this motion. There is no indication that Plaintiff acted with substantial justification or that the imposition of sanctions would be unjust.

Moving Defendant’s request for $2,210 in sanctions consists of 3 hours in preparing the moving papers, 6 hours in reviewing an opposition and preparing a reply, and 1 hour in attending the hearing at a rate of $215 an hour, plus one $60 filing fee. (Aghakhani Decl., ¶¶ 8-9.) This amount is unreasonable because no opposition or reply was filed. Rather, the Court finds $920 ($215/hr. x 4 hrs. plus one $60 filing fee) to be a reasonable amount of sanctions to be imposed against Plaintiff and his counsel of record, jointly and severally, for their abuse of the discovery process.

CONCLUSION

Both motions are GRANTED.

The Court reopens fact discovery only for Moving Defendant to depose Plaintiff and to depose the PMQ at Mayo Clinic by October 11, 2019.

The depositions shall be limited to questions about Plaintiff’s July 12, 2019 surgery and the qualifications of the surgeon who conducted that surgery.

The Court orders Plaintiff to serve verified responses without objections to Moving Defendant’s Supplemental Interrogatories (Set One) within 30 days of this order.

The Court also orders Plaintiff and Plaintiff’s counsel of record to pay Moving Defendant $920, jointly and severally, within 30 days of this order.

Moving Defendant is ordered to give notice of this ruling.