Case Number: BC696384 Hearing Date: March 01, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEFENDANT ALBINO ONG, 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., and Albino Ong, M.D. (“Defendant”) (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.

Compel Responses

On August 9, 2018, Defendant served Form Interrogatories, Special Interrogatories, and Requests for Production of Documents on each Plaintiff. (Declaration of Adam L. Robinson, ¶ 4.) Defense counsel granted an extension on responses to September 27, 2018. (Robinson Decl., ¶ 5.) On October 14, 2018, Plaintiffs’ counsel stated responses would be “completed this week.” (Robinson Decl., ¶ 6.) On November 12, 2018, having not received responses, defense counsel requested a status on responses. (Robinson Decl., ¶ 8.) To date, no responses have been received. (Robinson Decl., ¶ 9.)

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 requests for discovery. Accordingly, the Motions to compel Plaintiffs’ responses to Form Interrogatories, Special Interrogatories, and Requests for Production are GRANTED and each Plaintiff is ordered to serve verified responses, without objection, to Defendant’s discovery requests within twenty (20) days of the date of this Order.

Deem Admitted

On August 9, 2018, Defendant served Requests for Admissions on each Plaintiff. (Declaration of Adam L. Robinson, ¶ 4.) Defense counsel granted an extension on responses to September 27, 2018. (Robinson Decl., ¶ 5.) On October 14, 2018, Plaintiffs’ counsel stated responses would be “completed this week.” (Robinson Decl., ¶ 6.) On November 12, 2018, having not received responses, defense counsel requested a status on responses. (Robinson Decl., ¶ 8.) To date, no responses have been received. (Robinson Decl., ¶ 9.)

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 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 Civ. Proc., § 2033.280, subd. (c).)

Only three filing fees were paid for these Motions to compel responses to form interrogatories, special interrogatories, and production of documents and to deem admitted requests for admissions, as to each Plaintiff, for which eight (8) filing fees should have been paid. Accordingly, defense counsel is ordered to pay the additional five filing fees prior to the hearing on these Motions and to bring proof of payment to the hearing. If payment is not made, the hearing will be continued so that counsel can pay the additional filing fees.

Defendant’s request for monetary sanctions is GRANTED and imposed against Plaintiffs and counsel of record, jointly and severally, in the reduced amount of $1,035.00, for three hours at defense counsel’s hourly rate of $185.00, the $180.00 filing fees already paid, and the $300.00 filing fees ordered to be paid, to be paid to defense counsel within twenty (20) days of the date of this Order.

Moving party to give notice.