Case Number: BC685470 Hearing Date: February 05, 2019 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

wayne smith, by and through his conservator, Angie Smith,

Plaintiff,

v.

family home health agency, LLC, et al.,

Defendants.

Case No.: BC685470

Hearing Date: February 5, 2019

[TENTATIVE] order RE:

motions to compel discovery responses

TRANSFER OF CASE TO INDEPENDENT CALENDAR COURT

Wayne Smith (“Plaintiff”) filed this action through his conservator against Family Home Health Agency, LLC (“Family Home”), and Secure Transportation Company, Inc. (“Secure Transportation”) (collectively, “Defendants”) on December 4, 2017. Plaintiff alleges that he was entirely dependent on Family Home for his custodial and nursing needs, including daily cleaning and changing his wound dressings, but Family Home failed to provide such care to the point of neglect and physical abuse. Plaintiff also alleges that he suffered injuries while being transported due to Secure Transportation’s negligence. Based upon the foregoing allegations, Plaintiff asserts causes of action for negligence/willful misconduct against Defendants, as well as elder abuse against Family Home. Plaintiff seeks punitive damages. Family Home now moves to compel responses from Plaintiff to: (1) Request for Production of Documents (“RPD”), set one; (2) Form Interrogatories (“FROG”), set one; and (3) Special Interrogatories (“SROG”), sets one, two, and three. The Court grants the motions.

As an initial matter, Family Home has filed two motions to compel responses to five sets of discovery. Therefore, the Court orders Family Home to pay an additional $180 in filing fees. (Gov. Code, § 70617, subd. (a).)

Family Home served the discovery at issue on Plaintiff by mail on July 25, 2018. In response to Plaintiff’s counsel’s request, Family Home re-sent the discovery by mail and email on September 11, 2018. As of the filing date of these motions, Family Home has not received any substantive response from Plaintiff. Accordingly, the motions to compel responses to the RPD, FROG, and SROG are granted per Code of Civil Procedure sections 2030.290 and 2031.300. Plaintiff is ordered to serve responses to Family Home’s RPD, FROG, and SROG, without objections, within thirty (30) days of service of this order.

The Court finds that Plaintiff’s failure to respond to the discovery, which created the necessity for this motion, is an abuse of the discovery process, and awards sanctions in connection with these motions. The Court awards sanctions against Plaintiff and his counsel of record, Law Offices of Al Lustgarten, in the amount of $870, which represents three hours of attorney time to prepare the motions and attend the hearing at a rate of $190 per hour, plus five filings fees of $60 each.

Given the nature of the allegations, viz., the claim for elder abuse and Plaintiff’s decision to seek punitive damages, the Court finds that this case is complicated based upon the number of pretrial hearings and/or the complexity of the issues presented. Therefore, the Court intends to transfer the case to an Independent Calendar Court.

CONCLUSION AND ORDER

Family Home’s motions to compel responses to the RPD, FROG, and SROG are granted per Code of Civil Procedure sections 2030.290 and 2031.300. Plaintiff is ordered to serve verified responses, without objections, within thirty (30) days of notice of this order.

Plaintiff and Plaintiff’s counsel of record, Law Offices of Al Lustgarten, jointly and severally, are ordered to pay monetary sanctions in the amount of $870 to Family Home, by and through counsel, within thirty (30) days of notice of this order.

The Court transfers this case to an Independent Calendar Court via a separate order.

Family Home is ordered to provide notice of this order and file proof of service of such.

DATED: February 5, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court