Lawzilla Additional Information:
Per the Sacramento court records plaintiff is represented by attorney Joseph Bravo who is being sanctioned by the court. The tentative ruling below and it is Lawzilla’s understanding no oral argument was requested and the tentative ruling became the court’s final ruling.

2015-00181068-CU-MM

Carolyn Bailey-Thomas vs. Timothy P. Mar

Nature of Proceeding: Motion to Compel Production of Documents

Filed By: Dahl, Sonja M.

Defendant Dr. Mar’s motion to compel plaintiff’s production of two digital recordings, one of defendant and another of a different treating physician, and for monetary, evidentiary and terminating sanctions is effectively UNOPPOSED and is GRANTED IN PART and DENIED IN PART, as follows.

Factual Background

This is a medical malpractice case with a notable history of plaintiff’s failure to comply with discovery requests.

At issue here are the recordings of two visits plaintiff had with her doctors, one being the moving defendant and the other being a subsequent treating physician. Shortly after appearing in this action in February 2016, Dr. Mar requested inter alia all recorded statements, conversations and exchanges with defendant or any other witness. In response to a motion by Dr. Mar, plaintiff agreed to provide responses to all discovery requests no later than July 2017 but after failing to do so, Dr. Mar filed another motion which resulted in a court order that plaintiff provide code-compliant discovery responses no later than November 2017.

According to the moving papers, plaintiff has testified to the existence of recordings of two visits plaintiff had with her doctors but plaintiff has, despite her prior agreement and this court’s order, not yet produced either of the recordings to the moving defendant.

Additionally, Dr. Mar contends that despite the court’s order, plaintiff appeared for her deposition in December 2017 with over 500 pages of previously unidentified and unproduced documents, the volume of which made it impossible to conduct a meaningful examination of plaintiff.

Plaintiff filed an opposition, which challenges the adequacy of the notice for the present motion but the represents plaintiff will produce “without court order” the “recording data,” asking that it be kept “confidential” and not disclosed to any third party.

Analysis

Notice. While plaintiff’s “opposition” argues defendant failed to provide the minimum required notice for the hearing on this motion, this argument appears to be based on Code of Civil Procedure §1013’s provisions but plaintiff’s reliance on §1013 is misplaced since §1005(b) expressly provides in pertinent part:

Section 1013, which extends the time within which a right may be exercised or an act may be done, does not apply to a notice of motion, papers opposing a motion, or reply papers governed by this section. (Underline added for emphasis.)

Moreover, §1005(b) expressly provides that the 16-court day notice period shall be extended by two calendar (not court) days when service of notice is by overnight delivery and thus, defendant’s service in this manner on 4/6/2018 did provide the requisite notice given that Code of Civil Procedure §12c controls the manner of calculating the notice period.

The Two Recordings. Regardless of plaintiff’s claim that defendant failed to provide sufficient notice, her “opposition” states that she will nevertheless produce “without court order” the device with the recording at issue albeit with the caveat that the recording may not be retrievable. In light of this representation to the court that this “recording device” will be produced voluntarily, this court need not determine whether the production should be, at plaintiff’s request, conditioned on defendant’s agreement not to disclose the recording to any third party.

The court notes that the “opposition” appears to address only one of the two recordings at issue and thus, finding no substantive opposition to the production of the other recording sought by defendant, the court will order the second recording to be produced as well.

If not already done, plaintiff shall produce both of the requested recordings and if necessary or appropriate, the both of the devices on which they were recorded, no later than 5/11/2018 (unless Dr. Mar agrees to a later date memorialized in writing). Should plaintiff fail to comply with this deadline, defendant may file and serve an appropriate motion for evidentiary, issue and/or terminating sanctions.

Monetary Sanctions. In light of the notable history of plaintiff’s failure to comply with discovery requests in this case, the court will award defendant monetary sanctions against plaintiff and her attorney of record in the amount of $1,530, representing nine (9) hours of attorney time to prepare the present motion and the reply to the limited, non-substantive opposition. No amount is awarded for the anticipated 4 hours of travel to/from the hearing on this matter particularly in light of defendant’s ability to appear by telephone.

The court will also award additional monetary sanctions of $1,125 against plaintiff and her attorney of record for defendant’s attendance at plaintiff’s deposition, which could not be completed as a result of her untimely production of 500-plus pages of new documents. These sanctions to be paid no later than 6/1/2018 and if not paid by that date, defendant may prepare for the Court’s signature a formal order granting the sanctions, which may then be enforced as a separate judgment against plaintiff and her attorney of record. (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615.)

Evidentiary and Terminating Sanctions. Although very troubled by plaintiff’s apparent ongoing failure to timely comply with discovery obligations and orders, the court will decline at this time to impose any evidentiary sanctions based on the unreasonable delay in producing the two recordings discussed above especially since the moving papers did not include a separate statement as required by CRC Rule 3.1345(a)(7). However, should plaintiff unjustifiably fail to comply with the aforementioned deadline for the production of these recordings, the court will entertain a motion by Dr. Mar for appropriate evidentiary sanctions.

Similarly, in light of the foregoing, the court also declines at this time to grant a terminating sanction against plaintiff since this would under the circumstances provide defendant with an unjustified windfall for defendant. Dr. Mar may, however, seek such relief in the future based on an appropriate showing.