This case was last updated from Los Angeles County Superior Courts on 06/12/2019 at 02:13:03 (UTC).

MEENA ZAREH M D VS COUNTY OF LOS ANGELES ET AL

Case Summary

On 12/16/2016 MEENA ZAREH M D filed a Labor - Other Labor lawsuit against COUNTY OF LOS ANGELES. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are ELIZABETH R. FEFFER, MICHAEL P. LINFIELD and MARC MARMARO. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4274

  • Filing Date:

    12/16/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Other Labor

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

ELIZABETH R. FEFFER

MICHAEL P. LINFIELD

MARC MARMARO

 

Party Details

Plaintiff and Petitioner

ZAREH MEENA M.D.

Defendants and Respondents

KECK MEDICINE OF USC

CORTES GUILLERMO ANDRES

UNIVERSITY OF SOUTHERN CALIFORNIA

LOS ANGELES COUNTY DEPARTMENT OF HEALTH

DOES 1 - 50

LOS ANGELES COUNTY USA MEDICAL CENTER

KECK MEDICAL CENTER OF USC

LOS ANGELES COUNTY OF

LOS ANGELES COUNTY USC MEDICAL CENTER

COUNTY OF LOS ANGELES

CORTES GUILLERMO ANDRES M.D.

Not Classified By Court

ROSENBLATT MICHELLE R.

ANNAHITA SARCON

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

HEFFERNAN BRIAN J. ESQ.

VINICK SHARON R.

HAMMELL HILARY P.

LEVY LESLIE FRANN ESQ.

GLICK GAIL AVIVA

Defendant and Respondent Attorneys

CARLSON KEITH W./MAYORGA JAMIE

WEISS DAVID J. ESQ.

BRIGHT ELIZABETH ANN

GUTERRES TOMAS ANTONIO ESQ.

CARLSON KEITH WILLIAM ESQ.

WEISS DAVID JAY ESQ.

LEE KATHY K

ILER ERIKA AMADI

Not Classified By Court Attorney

RESNICK BARNET

 

Court Documents

NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

3/14/2018: NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

Minute Order

4/2/2018: Minute Order

REPLY SEPARATE STATEMENT OF REQUESTS FOR PRODUCTION AND RESPONSES IN DISPUTE IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION, SET TWO, TO THE COUNTY OF LOS ANGEL

4/23/2018: REPLY SEPARATE STATEMENT OF REQUESTS FOR PRODUCTION AND RESPONSES IN DISPUTE IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION, SET TWO, TO THE COUNTY OF LOS ANGEL

Minute Order

5/2/2018: Minute Order

Other -

11/14/2018: Other -

Declaration

1/4/2019: Declaration

Unknown

1/30/2019: Unknown

Declaration

1/31/2019: Declaration

Reply

2/26/2019: Reply

Other -

3/4/2019: Other -

Memorandum of Points & Authorities

3/8/2019: Memorandum of Points & Authorities

Minute Order

3/12/2019: Minute Order

Declaration

3/19/2019: Declaration

Reply

3/21/2019: Reply

Minute Order

4/9/2019: Minute Order

Notice

5/6/2019: Notice

PROOF OF SERVICE SUMMONS

2/10/2017: PROOF OF SERVICE SUMMONS

SUBSTITUTION OF ATTORNEY

6/29/2017: SUBSTITUTION OF ATTORNEY

275 More Documents Available

 

Docket Entries

  • 06/05/2019
  • Proof of Service (not Summons and Complaint); Filed by County of Los Angeles (Defendant)

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  • 06/04/2019
  • Motion to Compel (Further Deposition Testimony and Production of Documents of Third-Party Witness, Lisa Strutman, Esq.); Filed by County of Los Angeles (Defendant)

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  • 05/22/2019
  • at 08:30 AM in Department 37; Hearing on Motion for Sanctions - Not Held - Advanced and Continued - by Court

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  • 05/09/2019
  • Report and Recommendation of Discovery Referee Re In Camera Review of Wagner File Following Plaintiff's Motion to Compel Further Response to the Request for Production of Documents Accompanying the Deposition Notice of Donna Wagner and the Request for Fur; Filed by Michelle R. Rosenblatt (Non-Party)

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  • 05/06/2019
  • Notice (of Entry of Judgment or Order); Filed by Meena Zareh, M.D. (Plaintiff)

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  • 04/22/2019
  • at 08:30 AM in Department 37; Hearing on Motion for Sanctions (Against Plaintiff and/or former counsel for Discovery Abuse) - Not Held - Vacated by Court

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  • 04/09/2019
  • at 08:30 AM in Department 37; Court Order

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  • 04/09/2019
  • Certificate of Mailing for (Minute Order (In Chambers Court Order) of 04/09/2019); Filed by Clerk

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  • 04/09/2019
  • Minute Order ( (In Chambers Court Order)); Filed by Clerk

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  • 04/02/2019
  • Notice (: Report and Recommendation of Discovery Referee Re In Camera Review of Wagner File); Filed by Meena Zareh, M.D. (Plaintiff)

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420 More Docket Entries
  • 12/29/2016
  • Challenge To Judicial Officer - Peremptory (170.6); Filed by Meena Zareh, M.D. (Plaintiff)

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  • 12/29/2016
  • PEREMPTORY CHALLENGE TO JUDICIAL OFFICER (CODE CIV. PROC., 170.6)

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  • 12/21/2016
  • Notice of Case Management Conference; Filed by Clerk

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  • 12/21/2016
  • OSC-Failure to File Proof of Serv; Filed by Clerk

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  • 12/21/2016
  • ORDER TO SHOW CAUSE HEARING

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  • 12/21/2016
  • NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 12/16/2016
  • COMPLAINT FOR DAMAGES (1) SEXUAL BATTERY IN VIOLATION OF CAL. CIV. CODE 1708.5 ;ETC

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  • 12/16/2016
  • SUMMONS

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  • 12/16/2016
  • Summons; Filed by Plaintiff/Petitioner

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  • 12/16/2016
  • Complaint; Filed by Meena Zareh, M.D. (Plaintiff)

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Tentative Rulings

Case Number: BC644274    Hearing Date: August 17, 2020    Dept: 37

HEARING DATE: August 17, 2020

CASE NUMBER: BC644274

CASE NAME: Meena Zareh M.D. v. County of Los Angeles, et al.

MOVING PARTY: Plaintiff Meenah Zareh, M.D.

RESPONDING PARTY: Defendant Guillermo Andres Cortes; as of August 14, no opposition from other defendants.

TRIAL DATE: July 13, 2021

PROOF OF SERVICE: OK

PROCEEDING: Plaintiff’s Motion to Augment Expert Witness List

OPPOSITION: August 4, 2020

REPLY: August 10, 2020

TENTATIVE: Plaintiff’s motion to augment expert witness list is GRANTED. Plaintiff must file a supplemental designation of a retained expert witness within 10 days of this date. Within 20 days of service of this designation, any Defendant who participated in the initial exchange may submit a supplemental expert list for any expert who will express an opinion on the subjects to be covered by Dr. Mechanic if the party has not previously retained an expert to testify on those subjects. Plaintiff is to give notice.

Background

This case arises from allegations that Defendant Guillermo Andres Cortes, M.D. (“Cortes”) committed sexual harassment and sexual battery against Plaintiff Meena Zareh, M.D. (“Zareh”), while she was a doctor at Los Angeles County University of Southern California Medical Center (“LAC+USC”). Plaintiff further alleges that she faced harassment and retaliation, as well as other violations of the Labor, Civil and Education Code by Defendants Cortes, the County of Los Angeles (the “County”) and Defendants the University of Southern California, Keck Medicine of USC and Keck Medical Center of USC (collectively “USC”) (together, “Defendants.”)

In the Complaint, Plaintiff alleges seven causes of action for: (1) violation of Civil Code, § 1708.5, sexual battery against Cortes; (2) harassment in violation of the Fair Employment and Housing Act (“FEHA”) against all Defendants; (3) retaliation in violation of the FEHA against all Defendants; (4) violation of Labor Codes, §§ 1102.5 and 98.6 against Defendants the County and USC; (5) violation of Civil Code, §§ 51.9 and 52 against all Defendants; (6) violation of the California Equity in Higher Education Act against USC; and (7) violation of Civil Code, § 52.4 against Cortes.[1]

On or around May 2013, Plaintiff and her friend, Dr. Layana Wusirika (“Wusirika”) attending a friend’s birthday at a bar, during with Plaintiff claims that defendant Dr. Cortes acted inappropriately “handsy” with her. Plaintiff and Wusirika exchanged text messages that described the incident.

On January 24, 2020, the court awarded all defendants monetary sanctions, as follows: “(1) Defendant Cortes is awarded $13,400, (2) Defendant County is awarded $12,700, (3) Defendant USC is awarded $10,285.” Plaintiff was ordered to pay all sanctions at the time of final judgment even if she recovered nothing through the judgment.

Plaintiff now moves for leave to augment her expert witness list and re-designate Melinda B. Mechanic, Ph.D as a retained expert. Defendant Cortes opposes the motion.

Discussion

I. Procedural History

On December 7, 2018, Cortes submitted a demand for exchange of experts based on the then trial date of February 26, 2019. (Smith Decl. ¶ 2.) On December 10, 2018, Plaintiff also submitted a demand for exchange of experts. (Smith Decl. ¶ 3.) The parties exchanged expert lists on January 7, 2019 and supplemental lists on January 25, 2019. (Smith Decl. ¶ 4.) As of this exchange, Dr. Mechanic was identified as a non-retained expert Plaintiff. Dr. Mechanic had been retained by the Medical Board to testify in the administrative proceedings to revoke Cortes’ license. (Smith Decl. ¶ 5.) Defendant’s counsel attempted to obtain Dr. Mechanic’s deposition, but Plaintiff agreed she would not call Dr. Mechanic at trial in return for withdrawing one of Defendant’s experts and they ultimately both were withdrawn. (Smith Decl. ¶ 7; Lee Decl. ¶¶ 3-15.)

Thereafter, the February 26, 2019 trial date was vacated in connection with Defendants’ joint motion for terminating sanctions. The trial was continued to September 15, 2020. (Smith Decl. ¶¶ 8-9.)

On November 26, 2019, Dr. Mechanic testified at a hearing before the Medical Board regarding proceedings against Cortes in connection with accusations that Cortes sexually assaulted Plaintiff and others. (Smith Decl. ¶ 12, Exhibit B.) Specifically, Dr. Mechanic’s testimony was regarding “counterintuitive victim behavior.” (Id.) Further, counsel for each Defendant was present at the Medical Board hearing. (Smith Decl. ¶ 13.) Thereafter, Plaintiffs’ counsel determined that Dr. Mechanic’s testimony would be necessary “for the Court and jury to understand Plaintiff’s behaviors and reactions,” “assuring that the decision of the jury was not based on misconceptions or stereotypes about behavior of sexual assault survivors.” (Smith Decl. ¶ 14.) On March 5, 2020, Plaintiff filed this motion.

On July 16, 2020, the court continued the trial in this matter to July 13, 2021 on its own motion. Because the discovery cutoff had not yet expired, the discovery cutoff was also continued based on the new trial date.

II. Meet and Confer Requirement

Plaintiff moves to augment or amend her expert witness list under Code of Civil Procedure, section 2034.610. Section 2034.610, subdivision (c) requires the moving party to submit a meet and confer declaration under section 2016.040.

Plaintiff submits the declaration of her attorney, Katherine L. Smith (“Smith”) to demonstrate that she has fulfilled her statutory meet and confer requirements. Smith attests that the parties exchanged expert lists on January 7, 2019 and supplemental lists on January 25, 2019 based on the then trial date. (Smith Decl. ¶ 4.) According to Smith, Plaintiff had no intention of retaining Dr. Mechanic as an expert at the time. (Smith Decl. ¶ 7.) However, and according to Smith, Plaintiff recently determined that Dr. Mechanic’s testimony was necessary to “understand Plaintiff’s behaviors and actions” in light of all Defendants vigorously pursuing sanctions against Plaintiff for her alteration of the Original Texts. (Smith Decl. ¶ 14.) Thereafter, Smith attests that Plaintiff’s counsel reached out to all Defendants asking that they stipulate to allow Plaintiff to re-designate Dr. Mechanic. (Smith Decl. ¶¶ 15-19.) However, Defendant Cortes indicated that he would oppose any motion for leave to augment. (Smith Decl. ¶ 19.)

The court finds that the Smith Declaration is sufficient to satisfy Plaintiff’s statutory meet and confer requirements.

III. Analysis

The court shall grant leave to augment or amend an expert witness list or declaration only if all of the following conditions are satisfied:

(a) The court has taken into account the extent to which the opposing party has relied on the list of expert witnesses.

(b) The court has determined that any party opposing the motion will not be prejudiced in maintaining that party’s action or defense on the merits.

(c) The court has determined either of the following:

(1) The moving party would not in the exercise of reasonable diligence have determined to call that expert witness or have decided to offer the different or additional testimony of that expert witness.

(2) The moving party failed to determine to call that expert witness, or to offer the different or additional testimony of that expert witness as a result of mistake, inadvertence, surprise, or excusable neglect, and the moving party has done both of the following:

(A) Sought leave to augment or amend promptly after deciding to call the expert witness or to offer the different or additional testimony.

(B) Promptly thereafter served a copy of the proposed expert witness information concerning the expert or the testimony described in Section 2034.260 on all other parties who have appeared in the action.

(Code Civ. Proc., § 2034.620, subds. (a)-(c).)

Plaintiff contends she should be granted leave to augment her expert witness list because the necessity of Dr. Mechanic’s testimony became clear months after expert witness lists were initially exchanged and only because of Defendants’ arguments in their motion for terminating sanctions. (Motion, 8-11.) Further, Plaintiff contends that Defendants will not be prejudiced allowing her to designate Dr. Mechanic because the discovery cutoff has not yet passed, all Defendants have heard Dr. Mechanic’s testimony, Dr. Mechanic will be offered for deposition, and Dr. Mechanic does not plan to offer testimony specific to Cortes or his conduct. (Motion, 11-12.)

In opposition, Cortes contends Plaintiff should not be permitted to re-designate Dr. Mechanic because she knew or should have known that Defendants would advance arguments regarding her behavior in connection with their motion for terminating sanctions. (Opposition, 7-9.) Further, Cortes contends that allowing Dr. Mechanic to be re designated will prejudice Defendants because it will lead the jury to conclude that Plaintiff is a sexual assault victim and that Cortes and the other defendants were liable for her sexual assault. (Opposition, 10-11.)

The court finds that Plaintiff’s failure to designate Dr. Mechanic as a retained expert was due to mistake, inadvertence, surprise, or excusable neglect. Although Cortes’ contention that Plaintiff should have known that Dr. Mechanic’s testimony may be necessary has some merit, the court is persuaded by Plaintiff’s counsel’s arguments that the necessity of Dr. Mechanic’s testimony changed significantly based on arguments in Defendants’ motion for terminating sanctions. Defendants’ motion contained detailed arguments in support of the proposition that Plaintiff intentionally altered the Original Texts, which led to supplemental briefing at length about whether Plaintiff’s behavior did constitute spoliation of evidence and what type of sanctions were warranted.

Despite this, and more importantly, the court will allow Plaintiff to re-designate Dr. Mechanic because Cortes has completely failed to demonstrate that Dr. Mechanic’s testimony will prejudice Defendants. As Plaintiff has demonstrated, Dr. Mechanic’s testimony was regarding “counterintuitive victim behavior” in front of the Medical Board. Plaintiff’s counsel has attested that Dr. Mechanic will not testify regarding Dr. Cortes or his behavior and has offered to produce her for deposition in April 2020. Defendant does not respond to this assertion, but instead argues that any designation of Dr. Mechanic would now be too late because it would prejudice the jury into believing that Cortes was liable for sexual assault. ““The behavior of the party seeking to exclude the expert testimony is relevant to the reasonableness inquiry.” [citation] (Staub v. Kiley (2014) 226 Cal.App.4th 1437, 1447-1448 [failure to timely designate expert was excusable because such failure was due in part to Defendants’ refusal to depose expert].)

For these reasons, Plaintiff’s motion is GRANTED.

Conclusion

Plaintiff’s motion to augment expert witness list is GRANTED. Plaintiff must file a supplemental designation of a retained expert witness within 10 days of this date. Within 20 days of service of this designation, any Defendant who participated in the initial exchange may submit a supplemental expert list for any expert who will express an opinion on the subjects to be covered by Dr. Mechanic if the party has not previously retained an expert to testify on those subjects. Plaintiff is to give notice.


[1] On June 30, 2017, the court signed an order dismissing Plaintiff’s fourth and fifth causes of action against the County pursuant to a stipulation by the parties; only the second and third causes of action remain against the County.

Case Number: BC644274    Hearing Date: February 04, 2020    Dept: 37

HEARING DATE: February 4, 2020

CASE NUMBER: BC644274

CASE NAME: Meena Zareh M.D. v. County of Los Angeles, et al.

MOVING PARTY: Defendant County of Los Angeles

RESPONDING PARTY: Plaintiff Meena Zareh

TRIAL DATE: September 15, 2020

PROOF OF SERVICE: OK

PROCEEDING: Defendant County of Los Angeles’ Motion to Compel Further Testimony of Lisa Strutman and Production of Documents

OPPOSITION: August 8, 2019 by Plaintiff

REPLY: Timely filed January 28, 2020

TENTATIVE: County’s Motion to Compel Further Testimony and Production of Documents is denied without prejudice. Plaintiff is to provide notice.

Background

This case has been summarized generally in prior rulings. This summary will be limited to matters relevant to the instant motion.

On or around March 22, 2017, Defendant the County served Plaintiff with request for production of documents (“RFPs”). Plaintiff responded to the County’s RFPs on or about June 17, 2017 and produced an edited version of the text messages she exchanged with Dr. Layana Wusirika. (“Edited Texts.”) Plaintiff and Wusirika also relied upon the Edited Texts in submitting their affidavits to the County of Los Angeles in 2016 in furtherance of the County’s investigation.

Plaintiff testified at her 2018 deposition that she had deleted certain text messages in May 2016 at the instruction of her former counsel and that the Edited Texts were the documents initially produced to the County.

On December 5, 2018, Defendants served a deposition subpoena and request for production of documents, requesting the deposition of Lisa Strutman (“Strutman”), Plaintiff’s prior counsel at the time she produced the Edited Texts. The deposition subpoena requested that Strutman produce various documents, including all documents regarding “instructions to delete or alter text messages” and regarding the 2013 text messages generally. Plaintiff moved to quash the deposition subpoena and request for production and the discovery referee granted Plaintiff’s motion in part and denied the motion in part, ordering that Strutman appear for deposition and produce documents, as follows:

  1. Requests 1-2: the referee denied the motion to quash and ordered Strutman to produce documents regarding “communications” between Strutman and “County/USC” in connection with Strutman’s “pre-litigation investigation and her communication with County investigators/County Counsel as it relates to Plaintiff’s allegation of County/USC’s failure to adequately investigate her complaint regarding Dr. Cortes.” For all documents not produced on the grounds of work product, a privilege log should be produced.

  2. Requests 3-5: the referee denied the motion to quash and ordered Strutman to produce responsive, non-privileged documents regarding her communication with Wusirika “with respect to the November 2013 texts and her affidavit regarding the texts.” A privilege log should be produced for any documents withheld on the grounds of privilege.

  3. Request No. 6: the referee denied the motion to quash in part and granted it in part. this request and ordered Strutman produce documents between Wusirika and Strutman relating to the affidavit of Wusirika that are not work produce. For all documents that are work product, a privilege log should be produced.

  4. Requests 8-9: the referee denied the motion to quash. Strutman was ordered to produce all communications with Plaintiff regarding the deletion/alteration of the Full Texts.

Further, the discovery referee recommended that the oral deposition be limited to “one day or seven hours.” The discovery referee’s recommendation was adopted by the court on March 4, 2019. (see March 4, 2019 Report and Recommendation of Discovery Referee, hereinafter “March 4, 2019 Order”.)

Strutman’s deposition went forward on April 12, 2019. At the deposition, County contends that Strutman produced no documents and was improperly instructed not to answer certain questions. County now seeks an order compelling a further session of Strutman’s deposition and for her to produce documents as ordered on the grounds that no documents were ever produced at her deposition. Plaintiff opposes the motion.

Discussion

I. Legal Standard

“If a deponent fails to obey an order entered under this section, the failure may be considered a contempt of court. In addition, if the disobedient deponent is a party to the action or an officer, director, managing agent, or employee of a party, the court may make those orders that are just against the disobedient party, or against the party with whom the disobedient deponent is affiliated, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to this sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against that party deponent or against any party with whom the deponent is affiliated.

(Code Civ. Proc., § 2025.480, subd. (k).)

II. Procedural Issues

The motion must be accompanied by a good faith meet and confer declaration under section 2016.040 or, “when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450, subd. (b)(2).)

A declaration under section 2016.040 must state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented in the motion. (Code Civ. Proc., § 2016.040.) “[A] reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel…. Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294 (Clement).)

Following the discovery referee’s report, Strutman’s deposition went forward on April 12, 2019. (Declaration of Shahirah S. Ruddell (“Ruddell”) ¶ 9, Exhibit F.) County contends that Strutman’s deposition was not in compliance with the discovery referee’s ruling on Plaintiff’s motion to quash in that Strutman failed to produce any documents and was improperly instructed not to answer certain questions that the discovery referee permitted.

County submits the Ruddell Declaration to demonstrate that it has fulfilled its statutory meet and confer obligations prior to bringing the instant motion. Ruddell attests that she was assigned to work on this matter as of May 1, 2019, when prior handling attorney Elizabeth Bright went on maternity leave. (Ruddell Decl. ¶ 3.) According to Ruddell, Ms. Bright sent David Diamond, counsel for Ms. Strutman at the time of her deposition, a meet and confer letter on April 25, 2019 indicating that Strutman’s document production and testimony at deposition were insufficient and that County required a further response by May 1, 2019 or they would move to compel same. (Ruddell Decl., ¶ 10, Exhibit G.) Diamond did not respond to the email by June 4, 2019 and, as such, this motion was filed on June 4, 2019. (Ruddell Decl. ¶ 10.)

Plaintiff and Strutman both contend that County’s meet and confer efforts were insufficient, and that service of its motion was improper.

First, Plaintiff submits a declaration from Strutman in support of her opposition to the instant motion. Strutman attests that on June 25, 2019, Diamond sent notice to counsel for county that he no longer represented her for purposes of the instant action. (Strutman Decl. ¶ 2.) Strutman attests that she was contacted by Ruddell on August 5, 2019, at which time she first learned that the October 8, 2019 hearing previously scheduled for this motion was advanced to August 22, 2019. (Strutman Decl. ¶ 4, Exhibit 1.) Further, Strutman’s declaration also includes a declaration of David Diamond, in which he attests that at no time prior to August 5, 2019 was he notified that the original October 9, 2019 hearing date was advanced. (Diamond Decl. ¶ 5.)

Second, Plaintiff also submits the declaration of Sharon Vinick (“Vinick”) in support of its opposition to the instant motion. Vinick attests that on April 5, 2019, Plaintiff objected to the Notice of Taking Deposition of Strutman and request for production of documents. (Vinick Decl. ¶ 6, Exhibit B.) Vinick also attests that service of the Notice of Change of Hearing Date was insufficient with regard to Strutman, as their office received a Notice of Change of Hearing Date on July 1, 2019 which did not include Strutman or her counsel on the proof of service. (Vinick Decl. ¶ 10.)

Third, Plaintiff contends on opposition that the instant motion should be denied because County’s meet and confer efforts consisted only of the April 25, 2019 meet and confer letter, which County admits it never received a response to. (Opposition, 6.) Further, Plaintiff contends that the motion should be denied because County failed to file a separate statement as required by California Rules of Court, Rule 3.1345. (Opposition, 6-7.)

On reply, County argues that Plaintiff and/or Strutman’s objections regarding the motion’s alleged procedural defects all must fail. County submits the Declaration of Elizabeth Bright (“Bright”) in support of its reply. Bright attests that she “engaged in many months of meet and confer efforts with Ms. Strutman and her attorney prior to filing the instant motion, during the deposition, and then following the deposition after Ms. Strutman failed to comply with the order.” (Bright Decl. in support of Reply, ¶ 5.) Bright further attests that she sent correspondence to Strutman in December 2018 “explaining to her the circumstances under which Plaintiff waived privilege as to her communications with her.” (Id.) Further, Bright attests that “in the months that followed,” she was “in constant contact” with Strutman and “engaged in extensive conversations with Strutman’s counsel” during the deposition regarding the alleged deficiencies in her testimony and production of documents. (Id.)

County also submits the Declaration of Shahirah Ruddell in support of its reply for the proposition that service of the Notice of Change of Hearing Date on Strutman was sufficient. Ruddell attests that County decided to move the hearing date of August 22, 2019, advanced by the court, to February 4, 2020, the next date available, in order to ensure that Strutman was given time to respond. (Ruddell Decl. in support of reply, ¶ 7.) Further, Ruddell attests that County served Strutman a new Notice of Change of Hearing date on August 19, 2019 by email and U.S. mail. (Id.; Exhibits E-F.)

Finally, County contends on reply that a separate statement is not required “because the court has already ruled on Ms. Strutman’s objections.” (Reply, 4-5.) County further contends that because there is no dispute that Strutman was ordered to appear and produce documents “there is no reason to force Defendants to defend their position again.” (Id.) In a footnote, County alternatively contends that following the January 1, 2020 amendments to the requirements for separate statements, the court should exercise discretion to consider the County’s motion “a concise outline of matters in dispute.” (Reply, 5, fn. 1.)

The court finds that most of the arguments are over things that do not warrant addressing. Ms. Strutman now has plenty of notice of the hearing. The meet and confer efforts were minimal, but Ms. Strutman’s counsel at the time failed to respond. While a meet and confer was required, the opposing party cannot simply fail to respond and use that as an opposition to the motion.

On the other hand, the court finds that County was required to file a separate statement, and that its argument about no separate statement being required in the instant case fails. First, County’s footnote contending that the court should consider the moving papers a “concise outline of matters in dispute” is unfounded. Code of Civil Procedure section 2030.399, subdivision (b)(2) does not exist. The court assumes the County is referring to the provisions relating to interrogatory motions. This is not an interrogatory dispute. Second, the County contends that none is required in this instance because the March 4, 2019 order is already abundantly clear in its instructions and nothing further can be decided or served by another separate statement. (Reply, 4-5.) This is not the law. California Rule of Court, Rule 3.1345(b)(2), which permits some motions involving the contents of discovery to proceed without a separate statement if the court “has allowed the moving party” to submit a “concise outline of the discovery request and each response in dispute” in its place. Here, the court has not made such an allowance for County in the instant motion. The instant motion seeks an order compelling Strutman to comply with the order to produce documents and to respond to further questioning at deposition. Without a separate statement, the court is unable to evaluate what questions have already been posed to Strutman and objected to and what responses she already provided, if any.

Failure to provide a complete separate statement that conforms to the California Rules of Court is grounds to deny a motion to compel. (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893[finding as deficient a separate statement that grouped several responses to discovery into one, truncated lengthier responses to some discovery, and contained an unclear explanation for compelling “further responses, answers, or production.”].)

Accordingly, the instant motion is denied without prejudice

Conclusion

County’s motion is denied without prejudice. Plaintiff is to provide notice.

Case Number: BC644274    Hearing Date: January 21, 2020    Dept: 37

HEARING DATE: January 22, 2020

CASE NUMBER: BC644274

CASE NAME: Meena Zareh M.D. v. County of Los Angeles, et al.

MOVING PARTY: Defendants University of Southern California; Keck Medicine of USC; Keck Medical Center of USC; County of Los Angeles; Los Angeles County Department of Health Services; Los Angeles County USC Medical Center; and Guillermo Andres Cortes

RESPONDING PARTY: Plaintiff Meenah Zareh

TRIAL DATE: September 15, 2020

PROOF OF SERVICE: OK

PROCEEDING: Continued Hearing To Determine Award of Monetary Sanctions in Favor of Defendants

OPPOSITION: Supplemental Opposition Timely Filed by Plaintiff January 15, 2020

REPLY: N/A

TENTATIVE: The court awards monetary sanctions to defendants as follows: (1) Defendant Cortes is awarded $10,400, (2) Defendant County is awarded $10,700, (3) Defendant USC is awarded $8,285. Plaintiff is ordered to pay the sanctions at the time of final settlement or upon entry of judgment. Even if Plaintiff recovers nothing by settlement or judgment, the sanctions are still payable at that time. Defendants are to provide notice.

Background

This case arises from allegations that Defendant Guillermo Andres Cortes, M.D. (“Cortes”) committed sexual harassment and sexual battery against Plaintiff Meena Zareh, M.D. (“Zareh”), while she was a doctor at Los Angeles County University of Southern California Medical Center (“LAC+USC”). Plaintiff further alleges that she faced harassment and retaliation, as well as other violations of the Labor, Civil and Education Code by Defendants Cortes, the County of Los Angeles (the “County”) and Defendants the University of Southern California, Keck Medicine of USC and Keck Medical Center of USC (collectively “USC”) (together, “Defendants.”)

In the Complaint, Plaintiff alleges seven causes of action for: (1) violation of Civil Code, § 1708.5, sexual battery against Cortes; (2) harassment in violation of the Fair Employment and Housing Act (“FEHA”) against all Defendants; (3) retaliation in violation of the FEHA against all Defendants; (4) violation of Labor Codes, §§ 1102.5 and 98.6 against Defendants the County and USC; (5) violation of Civil Code, §§ 51.9 and 52 against all Defendants; (6) violation of the California Equity in Higher Education Act against USC; and (7) violation of Civil Code, § 52.4 against Cortes.[1]

Prior to filing this lawsuit, there were proceedings before the County of Los Angeles, relating to Plaintiff’s claims brought in this action. In those proceedings, Plaintiff and Dr. Layana Wusirika (“Wusirika”) relied upon Edited Texts in submitting their affidavits to the County of Los Angeles in 2016 in furtherance of the County’s investigation. On or around May 2013, Plaintiff and her friend, Wusirika attended a friend’s birthday at a bar, during with Plaintiff claims that defendant Dr. Cortes acted inappropriately “handsy” with her. Plaintiff and Wusirika exchanged text messages that described the incident. Prior to submitting the text messages Plaintiff edited them (“Edited Texts.”) to remove information that she felt would not help her case.

On or around March 22, 2017, in this action Defendant the County served Plaintiff with request for production of documents (“RFPs”). Plaintiff responded to the County’s RFPs on or about June 17, 2017 and produced the same Edited Text version messages she exchanged with Wusirika and did not produce the unedited versions.

On or around April 2018, Plaintiff produced additional documents through rolling production, which included another version of the same series of 2013 text messages that contained approximately four times as many text messages, the remainder of which had not previously been produced. (“Full Texts”) (Declaration of Jamie Mayorga (“Mayorga Decl.”) ¶ 5, Ex. 4.) In about September 2018, counsel for Cortes discovered the additional documents that had been produced in or after April. Plaintiff testified at her 2018 deposition that she had deleted certain text messages in May 2016 at the instruction of her former counsel and that the Edited Texts were the documents initially produced to the County. Plaintiff further testified that she had already taken screen shots of the full versions of the text messages prior to deletion, and that the full version of the text messages comprised the documents that were subsequently produced in 2018. Thus, the non-produced documents were produced prior to any motion to compel.

On December 5, 2018, Defendants served a deposition subpoena and request for production of documents, requesting the deposition of Lisa Strutman. (Referee’s Report and Recommendation re Plaintiff’s motion to Quash Deposition Subpoena of Lisa Strutman, 5.) The deposition subpoena requested that Lisa Strtuman produce various documents, including all documents regarding “instructions to delete or alter text messages” and regarding the 2013 text messages generally. (Id.) Plaintiff moved to quash the deposition subpoena and request for production and the discovery referee granted Plaintiff’s motion in part, quashing the document request for communications between Plaintiff and Lisa Strutman regarding Edited Texts. (Id. at 22-23.) The referee also ordered that the document production be limited to documents contained in the client file and not include ESI, on the grounds that it would be burdensome to require ESI on such a short time frame. (Id.)

On February 28, 2019, the court denied Defendants’ joint motion for terminating sanctions and disqualification of Plaintiff’s attorney. The court ordered Plaintiff to produce to Defendants the results of Setec’s forensic examination of Plaintiff’s electronic files as well as all unproduced documents, to the extent that they are unprivileged. The court also vacated the trial date as of this hearing and reopened discovery for all purposes according to the new trial date. Further, the court set a hearing on April 22, 2019 for Defendants to bring a motion against Plaintiff for monetary sanctions.

On March 19, 2019, the parties filed further briefing regarding the status of their ESI production and ESI meet and confer telephone conference. Plaintiff argued that she and her ESI expert had fully complied. (Plaintiff’s Brief re: Further ESI, 10-12.) Defendants expert disputed Plaintiff’s contention that she had fully complied and asserted that an analysis of the metadata shows that it had been impermissibly altered contrary to Plaintiff’s assertions. (Declaration of Peter Smith, ¶¶ 7-15.)

On June 4, 2019, County of Los Angeles moved to compel further deposition testimony and production of documents by third-party witness Lisa Strutman, Plaintiff’s former attorney on the grounds that she impermissibly refused to respond to certain discovery that was within the discovery referee’s order on Plaintiff’s motion to quash. Said motion is to be heard on February 4, 2020.

On November 19, 2019, Defendants’ joint motion for monetary and evidentiary sanctions and to disqualify Plaintiff’s counsel came on for hearing. After reviewing the moving and opposing papers and entertaining oral argument of all parties, the court denied Defendants’ request for evidentiary sanctions and denied the request to disqualify counsel. The court ordered supplemental briefing by Defendants in order to substantiate the $500,013.92 total in monetary sanctions the Defendants requested. Plaintiff was also permitted to file a supplemental opposition to Defendants’ supplemental briefs, and the hearing was continued to January 22, 2020 for the sole purpose of determining the monetary sanctions award.

On December 31, 2019, counsel for each defendant filed supplemental declarations in support of each request for fees. Plaintiff opposes the monetary sanctions request and each declaration, contending generally that none of the Defendants have sufficiently demonstrated to the court that the amounts they allege they are due are directly related to Plaintiff’s failure to produce the Full Texts until 2018.

Having reviewed the parties’ supplemental moving and opposing papers, the court now makes the following determination regarding the monetary sanctions awarded to each defendant.

Discussion

It is well established that the primary purpose of discovery sanctions is curative, not punitive. (Welgoss v. End (1967) 252 Cal.App.2d 982, 992; Caryl Richards, Inc. v. Superior Court (1961) 188 Cal.App.2d 300, 303-304.) Generally, the discovery statutes evince an incremental approach to sanctions, starting with monetary sanctions and ending with the ultimate sanction of dismissal. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.)

Defendants previously argued in connection with the underlying motion for monetary sanctions that Plaintiff should be sanctioned because she engaged in “spoliation” when she altered the Full Texts to produce Edited Texts, which constitutes conduct subject to sanctions. (Motion, 10-13.) Defendants cite Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1 in support of this argument (Cedars-Sinai). Defendants argue that Plaintiff’s alteration of the Full Texts and initial production of the Edited Texts created material contradictions in her claims. (Motion, 1-3.)

In reviewing this motion, the court feels it is important to focus on exactly what improprieties occurred and whether all of them are discovery violations warranting discovery sanctions. Altering documents obviously cannot be condoned, but not all alterations of documents constitute discovery violations. Similarly, not all alterations are spoliation if the original evidence is not lost or unavailable for trial. In this case, Plaintiff altered documents well before this litigation was filed and before she received any discovery request. She made the alterations to present an inaccurate factual record to the County in its proceeding, not to avoid a discovery request in this proceeding. So that alteration was not a discovery violation. (Code Civ. Proc. § 2023.010.) Can this court award damages for the violation? Generally, such violations are generally not punishable by imposing tort liability in a separate lawsuit. (See Cedars-Sinai Med. Ctr. v. Sup.Ct. (Bowyer) (1998) 18 Cal.4th 1, 17 —no tort remedy for intentional destruction of evidence by a litigating party; see also Temple Comm. Hosp. v. Sup.Ct. (Ramos) (1999) 20 C4th 464, 476-478—no tort remedy for intentional destruction of evidence by a nonparty to litigation, even though only limited sanctions are available for misuse of discovery by nonparties]

In this case, Plaintiff responded to requests to produce without producing all the relevant documents and only producing the Edited Texts. That conduct constitutes a failure to respond fully to an authorized method of discovery and an evasive response to discovery. (Code Civ. Proc. § 2023.010(d), (f).) For such a violation, “The 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.” (Code Civ. Proc., § 2023.030(a).)

Each counsel for defendants now submits supplemental declarations in support of their request for sanctions, as follows: (1) Supplemental Declaration of Kathy Lee (“Lee Decl.”), (2) Supplemental Declaration of Elizabeth Bright (“Bright Decl.”), (3) Supplemental Declaration of Jamie Mayorga (“Mayorga Decl.”). Plaintiff, in turn, submits a supplemental declaration of her attorney, Leslie Levy (“Levy Decl.”) in support of her supplemental opposition.

First, the court notes that Plaintiff generally argues for no sanctions, or at most, some minimal amount of sanctions, to be awarded. Plaintiff proposes a total award of $2,025.00. (Supp. Opposition, 11-12.) Plaintiff contends that this amount is appropriate because this represents the total number of times that each counsel for defendant asked Plaintiff on subsequent sessions of her depositions regarding the Edited Texts and assuming that each defense attorney spent one hour preparing for this portion of the deposition. (Id.) Plaintiff otherwise contends that additional sanctions are not warranted because the defense counsel declarations do not articulate the amount of additional fees that each incurred solely because Plaintiff produced the Edited Texts in 2017 and did not produce the Full Texts until 2018. (Id.)

Further, Plaintiff’s counsel argues that a minimal amount of sanctions is appropriate at most because Plaintiff Zareh is financially unable to pay a larger amount. (Supp. Opposition, 16.) Plaintiff’s counsel cites to Code of Civil Procedure section 128.5(f)(2) in support of this proposition and provides Plaintiff’s declaration regarding her financial condition. While the court is sympathetic to Plaintiff’s financial condition, the court finds this argument misplaced. Section 128.5 expressly states that it is not to apply to discovery motions. (Code Civ. Proc. § 128.5 (e).) Because this is a hearing to award monetary sanctions in connection with discovery, the court will not consider Plaintiff’s financial condition or ability to pay.

Further, the court finds that $2,025 is not appropriate and that some additional amount of sanctions are appropriate. Although Plaintiff’s misconduct in this action was as Plaintiff’s counsel articulated, the defense counsel declarations, taken together, have demonstrated that certain actions and fees were incurred only as a result of this misconduct. As such, the court will award sanctions for these certain actions.

The court will address each declaration’s requests for sanctions in turn.

  1. Lee Declaration in Support of Defendant Guillermo Cortes’ Request for Sanctions

Lee attests that her office was the one to discover that Plaintiff had altered the Full Texts to produce the Edited Texts. (Lee Decl. ¶ 7.) Further, Lee attests that Plaintiff first admitted to producing the Edited Texts during her deposition on October 5, 2018, after being questioned by counsel for USC. (Lee Decl. ¶ 8.) Lee contends that $117,474.18 (fees $91,000 and costs $26,474.18) represents the amount incurred “as a result of Plaintiff’s malfeasance and in order to properly defend the rights of our client in this litigation.” (Lee Decl. ¶ 9.)

First, the court notes that Lee’s declaration attests to a combined rate of $350 for attorney hours in connection with Plaintiff’s alleged misconduct. (Lee Decl. ¶ 12.) The court finds that this rate is reasonable for attorneys in the Los Angeles area. However, the court notes that each subsection of paragraph 14 fails to include an estimate on the amount of hours spent. For the sake of completeness, the court will provide a breakdown of the amount of hours in this ruling.

Lee attests to the following breakdown of the total amount of fees and costs on behalf of Defendant Dr. Cortes:

  1. $1,960 (5.6 hours): fees and costs associated with “Plaintiff’s documents reviewed/re-reviewed for additional discrepancies/potentially altered evidence.” Lee attests that these hours were spent on reviewing over six thousand pages of documents to compare for “possible alteration.” (Lee Decl. ¶ 14(i)).

    Given this description, the court is unable to determine that the hours expended on reviewing and/or comparing documents were due to Plaintiff’s failure to produce the Full texts in 2017. If they had been produced then, the same work likely would have been done. Because the declaration does not identify work caused by the late production, no sanctions will be awarded for this category.

  2. $3,535.00 (10.1 hours): fees and costs associated with “production request, communications/disputes” regarding Electronically Stored Information (“ESI”). Lee attests that this amount was incurred regarding discovery from Plaintiff’s electronic devices, which was necessary due to Plaintiff’s “manipulation of evidence.” (Lee Decl. ¶ 14(ii).) The manipulation of evidence occurred before the litigation, so this work would have occurred even if there were a full production. No sanctions will be awarded.

  3. $3,955.00 plus $7,437.50 in costs: Lee attests that this amount was incurred in connection with engaging Judge Rosenblatt in “various discovery issues” related to “further deposition of Plaintiff.” (Lee Decl. ¶ 14(iii).

    However, a review of the docket indicates that Judge Rosenblatt was appointed on October 4, 2018 by the Honorable David Cunningham. Judge Cunningham’s order specifically stated that Judge Rosenblatt’s fees were to be split equally among the four parties. (see October 4, 2018 Minute Order.)

    As such, the court will not award fees in connection with “engaging Judge Rosenblatt,” as Lee has not articulated a basis to contradict Judge Cunningham’s order that each party shall bear a portion of Judge Rosenblatt’s fees.

  4. $10,220.00 (29.2 hours): Lee attests that this amount represents “motions/court hearings required…including, but not limited to ex parte applications, and motions to compel discovery/depositions and motion re attorneys fee/cost issues.” (Lee Decl. ¶ 14 (iv). Specifically, Lee attests that her office seeks fees in connection with the following hearings: March 12, 2019 ex parte for clarification of court order, March 25, 2019 status conference re: ESI. Again, there is no distinction with the extra work caused by the Edited Texts and the failure to produce properly in 2017. Thus, there is insufficient evidence to award sanctions.

  5. $11,725.00 (33.5 hours): Lee attests that this amount represents fees for “numerous meet and confers” between the discovery of the Edited Texts to May 31, 2019 with the client regarding changes and revaluation of case strategy. (Lee Decl. ¶ 14(v).

    However, this explanation is entirely unclear to the court. Clearly the discovery of the Edited texts caused Defendant to re-evaluate strategy; however, most of that was due to the fact that Plaintiff had edited evidence. Very little of that was likely due to the late discovery of that fact. The total amount of 33.5 hours is excessive.

    While difficult to assess, two hours discussing the impact of the late discovery seems appropriate. $700 in sanctions for this category.

  1. $30,625.00 and $18,417.93 in costs (87.5 hours): Lee attests that this amount is requested in connection with additional depositions of Plaintiff and additional depositions of 4 third party witnesses “solely to determine whether any additional evidence was altered or failed to be produced.” (Lee Decl. ¶ 14 (vi)).

    The court will not award any sanctions in connection with depositions of third party witnesses “to determine whether any additional evidence was altered.” As the court already ruled at the last hearing on this motion, any monetary sanctions must be directly related to Plaintiff’s discovery misconduct by producing Edited Texts in lieu of the Full Texts. Lee appears to contend that Defendant Cortes felt it was necessary to depose four additional third party witnesses to verify the truth of the entirety of Plaintiff’s case beyond this instance of misconduct. While Defendant Cortes may do so if he chooses, this does not form the basis of discovery sanctions against Plaintiff.

    Accordingly, the court awards 14 hours in fees, or $4,900, representing preparation and attendance at an additional session of Plaintiff’s deposition.

  2. $8,050.00 (23 hours): Lee attests that this amount represents “communication and strategy with other defense counsel regarding Plaintiff’s evidence manipulation.” (Lee Decl. ¶ 14(vii)).

    As these discussions were about “manipulation” and not late discovery, no sanctions will be awarded.

  3. $3,430.00 (9.8 hours): Lee attests that this amount was incurred from September 2018 to May 2019 in meeting and conferring with Plaintiff’s counsel “regarding Plaintiff’s evidence manipulation.” (Lee Decl. ¶ 14(viii.) Defendant does not make clear which of those discussions related to late knowledge of the alterations or just to addressing the alterations. Thus, the court does not have sufficient evidence to make an award.

  4. $9,065.00 and $618.75 in costs: Lee attests that this amount was incurred in connection with the deposition of Lisa Strutman, and that it includes amounts for appearing at the discovery referee’s hearing on the motion to quash regarding Strtuman. (Lee Decl. ¶ 14(ix)).

    On October 4, 2018, the Honorable David Cunningham ordered that Judge Rosenblatt be appointed discovery referee in this matter and that Judge Rosenblatt’s fees be split amongst the four parties equally. On March 4, 2019, Judge Rosenblatt’s recommendations regarding the motion to quash deposition of Lisa Strutman was provided to the court. As part of this recommendation, Judge Rosenblatt requested that she be compensated in accordance with “equal distribution of the Referee’s fees.” (see pg. 21, March 4, 2019 Recommendation.)

    As such, the court does not award additional fees as sanctions in connection with this request to the extent that they are to represent compensation for Judge Rosenblatt’s fees. However, because the court recognizes that the late discovery gave an unusual time crunch regarding obtaining Lisa Strutman’s deposition. Thus, the court will award $3,000 in fees in connection with the need for expedited proceedings.

  5. $5,180.00 (14.8 hours): Lee attests that this amount was incurred in connection with the motion for terminating sanctions and the hearing on same, which was necessitated by Plaintiff’s discovery misconduct. (Lee Decl. ¶ 14 (x).)

    At the time the motion was made, the court believed that it was unnecessary and unreasonable given the factual scenario. Some motion for sanctions was reasonably incurred, but the motions made were unreasonably aggressive and “over the top.” However, a reasonable fee for the motion for sanctions would be $2,800, representing 8 hours of attorney time.

  6. $3,255.00 (9.3 hours): Lee attests that this amount was incurred in connection with seeking a trial continuance, which was necessitated because Plaintiff’s discovery misconduct was discovered close to the trial date. ((Lee Decl. ¶ 14 (xi.)

    Lee attests that the motion to continue trial needed “significant amount[s] of work” for the declaration in support of motion. However, a review of the docket indicates that on October 10, 2018, defendant County of Los Angeles brought an ex parte to continue trial. On January 31, 2019, defendant County of Los Angeles brought another ex parte to continue trial, and not defendant Cortes.

    As such, the court will not award any sanctions in connection with this amount for Defendant Cortes as Defendant Cortes does not appear to have joined in any ex parte to continue trial.

SUMMARY: Defendant Cortes is awarded a total of $10,400.

  1. Bright Declaration in Support of County of Los Angeles’ Request for Sanctions

Bright attests that she is the attorney for Defendant County of Los Angeles (“County”) in this action. (Bright Decl. ¶ 1.) She attests that County learned for the first time in September 2018 “that there was a discrepancy between documents produced by Plaintiff in discovery in June 2017 and those later produced in April 2018.” (Bright Decl. ¶ 3.) Further, she contends the County was forced to incur additional fees and costs due to “the insertion by Plaintiff of falsified documents into discovery in June 2017.” (Id.) The County’s total additional fees were allegedly $123,830.00 and costs $2,726.90 in connection with this misconduct, for a total of 353.8 hours. (Bright Decl. ¶¶ 4-5.)

Bright attests that a reasonable rate for attorneys from her firm is a combined $350. (Bright Decl. ¶ 6.) The court finds that this rate is reasonable for attorneys in the Los Angeles area.

Bright requests fees and costs in connection with the following:

  1. $14,245.00 (40.7 hours): Bright attests that this amount was incurred in connection with reviewing and analyzing “Plaintiff’s entire previous document production to try to determine whether there were any other documents she altered and/or withheld.” (Bright Decl. ¶ 7.)

    Given this description, the court is unable to determine that the hours expended on reviewing and/or comparing documents were due to Plaintiff’s failure to produce the Full texts in 2017. If they had been produced then, the same work likely would have been done. Because the declaration does not identify work caused by the late production, no sanctions will be awarded for this category.

  2. $16,835.00 (48.1 hours): Bright attests that this amount was incurred in connection with further communication with the County. (Bright Decl. ¶ 8.) Specifically, Bright states that: “the county has stringent requirements that defense counsel must follow with regard to regular reporting and other communications related to litigation matters. In particular, defense counsel must communicate frequently and thoroughly as to any developments affecting the County’s anticipated litigation strategy.” (Id.) Bright attests that her office had “numerous conferences, telephone calls, written communications and meetings with the County regarding the evidence manipulation issue.” (Id.)

    However, this explanation is entirely unclear to the court. Clearly the discovery of the Edited texts caused Defendant to re-evaluate strategy; however, most of that was due to the fact that Plaintiff had edited evidence. Very little of that was likely due to the late discovery of that fact. The total amount of 48.1 hours is excessive.

    While difficult to assess, given the county’s communication instructions four hours discussing the impact of the late discovery seems appropriate. $1,400 in sanctions for this category.

  3. $27,370.00 (78.2 hours): Bright attests that this amount was incurred in connection with further work on and changes to the County’s defense strategy. (Bright Decl. ¶ 9.) Further, Bright states: “These additional hours would not have been necessary had the County been aware of Plaintiff's alteration of the text messages at the inception of the case and before my office undertook to prepare this case for trial.:

    However, as with the second category above, the court finds that Bright has not demonstrated that the entire 78.2 hours was only necessitated because of Plaintiff’s late production. It is more likely that the county wanted to change strategy to take advantage of Plaintiff’s alteration of evidence. Because this came later in the litigation some additional time was probably necessary. The court believes a reasonable sanction for that situation is 10 hours or $3,500.

  4. $23,345.00 (66.7 hours): Bright attests that this amount was incurred in connection with the Lisa Strutman deposition. (Bright Decl. ¶ 10.) Specifically, Bright attests that this amount compromises of preparing a subpoena for Ms. Strutman, making multiple attempts to locate Ms. Strutman for service, responding to Plaintiff’s motion to quash, attending hearings on the motion to quash, and attending the deposition of Ms. Strutman.

    If the production of the unedited texts had not been late, most of this work for the Strutman deposition would have been incurred anyway. There was some necessity for expedience due to the late disclosure, so the court will set a reasonable sanction in the amount of $3,000.

  5. $4,690.00 (13.4 hours): Bright attests that this amount was incurred with ex parte applications to continue trial because Plaintiff’s misconduct was discovered 5 months prior to the trial date. (Bright Decl. ¶ 12.)

    A review of the docket indicates that County was the moving party on two ex parte applications to continue trial. Neither motion was successful, and if there had not been excessive sanctions activity no trial continuance was necessary at the time they were made. No sanctions.

  6. $ 17,325 (49.5 hours): Bright attests that her office spent a combined total of 49.5 hours in connection with both the Motion for Terminating Sanctions and the Motion for Monetary and Evidentiary Sanctions before this court. (Bright Decl. ¶ 13.) Bright attests that both motions were only warranted because of Plaintiff’s discovery misconduct.

    At the time the motion was made, the court believed that it was unnecessary and unreasonable given the factual scenario. Some motion for sanctions was reasonably incurred, but the motions made were unreasonably aggressive and “over the top.” However, a reasonable fee for the motion for sanctions would be $2,800, representing 8 hours of attorney time.

  7. $4,550 (13 hours): Bright attests that this amount represents communication between all defense counsel to develop strategy because Plaintiff’s discovery misconduct was discovered close to the time of trial. (Bright Decl. ¶ 14.)

    Additional communication by and amongst defense counsel to develop strategy may occur without any discovery misconduct by Plaintiff, and Bright has not articulated how the entire amount of time spent on this category was only spent because of Plaintiff’s late discovery rather than how to address the new information.

  8. $6,265.00 (17.9 hours): Bright attests that this amount was incurred in communicating with Plaintiff’s counsel from September 2018 to May 2019 regarding deficiencies in Plaintiff’s document production and Ms. Strutman’s deposition. (Bright Decl. ¶ 15.)

    Defendant does not make clear which of those discussions related to late knowledge of the alterations or just to addressing the alterations. Thus, the court does not have sufficient evidence to make an award.

  9. $3,780.00 (10.8 hours): Bright attests that this amount was incurred following the March 25, 2019 hearing regarding further ESI collection. (Bright Decl. ¶ 16.) Bright attests that, at the court’s direction, she spent 10.8 hours reviewing Plaintiff’s document production “in order to identify the questionable redactions and missing documents.”

    This does not relate to late productions, so no fees will be awarded.

  10. $5,425.00 (15.5 hours): Bright attests that this amount was incurred for legal research regarding Plaintiff’s misconduct. (Bright Decl. ¶ 17.) Bright contends that the specific research is protected by the work product doctrine and requests an in camera review should the court require further information.

    The court is not inclined to award any fees for this category at this time. The court is not aware of any reason why defense counsel is required to conduct “extensive research” in connection with a late production of documents.

SUMMARY: Defendant County is awarded a total of $10,700.

  1. Mayorga Declaration in Support of USC Defendants’ Request for Sanctions

Mayorga attests that she is an attorney for Defendants University of Southern California, Keck Medicine of USC and Keck Medical Center (“USC”) in this action. (Mayorga Decl. ¶ 1.) She attests generally that the fees described in the instant declaration “wasn’t just about the alteration of evidence, it was also looking to see if Zareh withheld additionally documents.” (Mayorga Decl. ¶ 3.) Mayorga further attests that all fees requested are based on a billable rate of $325.00 per hour. (Mayorga Decl. ¶ 4.) The court finds this rate reasonable for attorneys in the Los Angeles area.

Mayorga requests fees in connection with the following categories:

  1. $3,782.50 (10.3 hours): Mayorga attests that this amount was incurred in connection with “conference, telephone calls and meetings” with the client regarding the “evidence manipulation issue,” and that this amount was not “related to our overall defense or preparation of this case.” (Mayorga Decl. ¶¶ 5-6.)

    The “evidence manipulation issue” is not the late production. Given this, the court is inclined to award the entire amount. Some of that discussion must have been about the timing issues, but the sanctions will be limited to two hours or $700.

  2. $1,985.00 (5.1 hours): Mayorga attests that this amount represents the total that her office spent strategizing in firm directly connected to Plaintiff’s discovery misconduct, and that while numerous other strategy sessions occurred, this amount does not encompass other sessions.(Mayorga Decl. ¶¶ 7-8.)

    As such, the court will award the entire amount.

  3. $5,037.50 (15.5 hours): Mayorga attests that this amount was incurred in connection with reviewing Plaintiff’s document production following discovery of Plaintiff’s discovery misconduct to discover if “any additional evidence had been manipulated or withheld.” (Mayorga Decl. ¶¶ 9-10.) Mayorga further attests that this amount would not have been necessary if Plaintiff had disclosed in June 2017 or any earlier than she did that the Edited Texts existed, because the timing of Plaintiff’s 2018 disclosure “caused Defendants to mistrust not only Zareh but her counsel as well.”

    Given the foregoing, the court is not inclined to award any amount for this category. While the court recognizes that a certain amount of mistrust was likely created due to Plaintiff’s document manipulation, once that was discovered Defendant would have done that anyway.

  4. $7,198.00 (20.5 hours) plus $13,914.91 in costs: Mayorga attests that this amount represents $13,914.91 paid in fees to Smith DFI, a forensic expert retained to examine Plaintiff’s electronic devices and metadata “for additional altered evidence.” (Mayorga Decl. ¶¶ 11-14.) Further, Mayorga attests that her office spent 20.5 hours from November 2018 to June 2019 working with Smith DFI “regarding Zareh’s ESI and spoliation of evidence.”

    This work was not necessitated by the late production, but by the manipulation of the documents. As such, no discovery sanctions are awarded in connection with this category.

  5. $780.00 (2.5 hours): Mayorga attests that this amount represents the fees incurred in connection with preparing additional discovery requests to inspect Plaintiff’s electronic devices. (Mayorga Decl. ¶¶ 15-16.) This work was not necessitated by the late production, but by the manipulation of the documents. As such, no discovery sanctions are awarded in connection with this category.

  6. $8,680.00 (26.2 hours): Mayorga attests that this amount represents the fees incurred in connection with an ex parte application to continue trial based on Plaintiff’s “evidence manipulation.” (Mayorga Decl. ¶¶ 17-18.) Mayorga attests that she worked with counsel for the County to prepare the ex parte. (Id.)

    A review of the docket indicates that County was the moving party on two ex parte applications to continue trial. Neither motion was successful, and if there had not been excessive sanctions activity no trial continuance was necessary at the time they were made. No sanctions.

  7. $6,825.00 (21 hours): Mayorga attests that this amount was incurred in connection with research to support a motion for terminating sanctions. (Mayorga Decl. ¶¶ 19-20.) At the time the motion was made, the court believed that it was unnecessary and unreasonable given the factual scenario. Some motion for sanctions was reasonably incurred, but the motions made were unreasonably aggressive and “over the top.” However, a reasonable fee for the motion for sanctions would be $2,800, representing 8 hours of attorney time.

  8. $3,232.50 (9.6 hours): Mayorga attests that this amount was incurred in connection with communicating with other defense counsel regarding “spoliation of evidence and strategy.” (Mayorga Decl. ¶ 21.) Further, Mayorga attests that “these conversation would not have been necessary had Zareh not manipulated the text messages and then failed to inform any defendants of her misconduct.”

    This work was not necessitated by the late production, but by the manipulation of the documents. As such, no discovery sanctions are awarded in connection with this category.

  9. $5,427.50 (16.7 hours): Mayorga attests that this amount was incurred in connection with Ms. Strutman’s deposition, in that substantial hours were required for “surveillance to serve her with a deposition subpoena” in addition to preparing and attending the hearing on Plaintiff’s motion to quash. (Mayorga Decl. ¶¶ 22-23.)

    Defendant does not make clear which of those discussions related to late knowledge of the alterations or just to addressing the alterations. Thus, the court does not have sufficient evidence to make an award.

  10. $29,657.50 (86.8 hours): Mayorga attests that this amount was incurred in connection with drafting the motion for terminating sanctions, including “drafting the motion for terminating sanctions, drafting declarations in support of the motion for terminating sanctions, reviewing Zareh’s opposition to the motion and preparing the reply brief in support of the motion for sanctions, and preparing for and attending the hearing.” (Mayorga Decl. ¶¶ 24-25.)

    At the time the motion was made, the court believed that it was unnecessary and unreasonable given the factual scenario. Some motion for sanctions was reasonably incurred, but the motions made were unreasonably aggressive and “over the top.” However, a reasonable fee for the motion for sanctions would be $2,800, representing 8 hours of attorney time.

  11. $2,014.90 (6.7 hours): Mayorga attests that this amount was incurred in connection with communicating with Plaintiff’s counsel “regarding the spoliation of evidence” from September 2018 to May 2019. (Mayorga Decl. ¶ 26.)

    This work was not necessitated by the late production, but by the manipulation of the documents. As such, no discovery sanctions are awarded in connection with this category.

  12. $20,670 (66.3 hours): Mayorga attests that her office spent a combined total of 66.3 hours working on issues regarding Plaintiff’s ESI discovery, including reviewing Plaintiff’s production following the March 25, 2019 hearing and reviewing and responding to Plaintiff’s brief regarding the March 25, 2019 ESI hearing.

    This work was not necessitated by the late production, but by the manipulation of the documents. As such, no discovery sanctions are awarded in connection with this category.

SUMMARY: Defendant USC is awarded a total of $8,285.

Conclusion

The court awards monetary sanctions to defendants as follows: (1) Defendant Cortes is awarded $10,400, (2) Defendant County is awarded $10,700, (3) Defendant USC is awarded $8,285. Plaintiff is ordered to pay the sanctions at the time of final settlement or upon entry of judgment. Even if Plaintiff recovers nothing by settlement or judgment, the sanctions are still payable at that time. Defendants are to provide notice.


[1] On June 30, 2017, the court signed an order dismissing Plaintiff’s fourth and fifth causes of action against the County pursuant to a stipulation by the parties; only the second and third causes of action remain against the County.

Case Number: BC644274    Hearing Date: November 19, 2019    Dept: 37

HEARING DATE: November 19, 2019

CASE NUMBER: BC644274

CASE NAME: Meena Zareh M.D. v. County of Los Angeles, et al.

MOVING PARTY: Defendants University of Southern California; Keck Medicine of USC; Keck Medical Center of USC; County of Los Angeles; Los Angeles County Department of Health Services; Los Angeles County USC Medical Center; and Guillermo Andres Cortes

RESPONDING PARTY: Plaintiff Meenah Zareh

TRIAL DATE: September 15, 2020

PROOF OF SERVICE: OK

PROCEEDING: Defendants’ Joint Motion for Monetary and Evidentiary Sanctions

OPPOSITION: Timely filed November 5, 2019

REPLY: Timely filed November 12, 2019

TENTATIVE: Defendants’ counsel may file by December 31, 2019 additional declarations in support of their fee requests detailing the activities for which fees are being requested, the amounts attributable to those activities, and the factual basis for why that activity would not have taken place but for the text revisions. The court is not inclined to award fees for unsuccessful motions to compel. Plaintiffs may file responsive papers to the new declarations no later than January 15, 2020 and this motion is continued to January 22, 2019 at 8:30 a.m. in this department. The court DENIES Defendants’ request for evidentiary sanctions and disqualification. Defense counsel is to give notice.

.

Background

This case arises from allegations that Defendant Guillermo Andres Cortes, M.D. (“Cortes”) committed sexual harassment and sexual battery against Plaintiff Meena Zareh, M.D. (“Zareh”), while she was a doctor at Los Angeles County University of Southern California Medical Center (“LAC+USC”). Plaintiff further alleges that she faced harassment and retaliation, as well as other violations of the Labor, Civil and Education Code by Defendants Cortes, the County of Los Angeles (the “County”) and Defendants the University of Southern California, Keck Medicine of USC and Keck Medical Center of USC (collectively “USC”) (together, “Defendants.”)

In the Complaint, Plaintiff alleges seven causes of action for: (1) violation of Civil Code, § 1708.5, sexual battery against Cortes; (2) harassment in violation of the Fair Employment and Housing Act (“FEHA”) against all Defendants; (3) retaliation in violation of the FEHA against all Defendants; (4) violation of Labor Codes, §§ 1102.5 and 98.6 against Defendants the County and USC; (5) violation of Civil Code, §§ 51.9 and 52 against all Defendants; (6) violation of the California Equity in Higher Education Act against USC; and (7) violation of Civil Code, § 52.4 against Cortes.[1]

This is Defendants’ second motion for terminating sanctions, primarily based on Plaintiff’s deleting part of text messages before submitting them in support of her claims against Defendant Cortes to COLA and continuing to use those manipulated text messages during this litigation, among other things. The relevant facts for the purposes of this motion are as follows:

On March 10, 2016, Plaintiff submitted an affidavit to COLA in support of her claim of sexual harassment by Defendant Cortes.

On or about May 24, 2016, Plaintiff submitted an addendum to her March 10 affidavit. (See Mayorga Decl., Exh. 2.) In the addendum, she quoted from what she described as her November 9, 2013 text message to Dr. Layana Wusirika (“Wusirika”). On or around May 2013, Plaintiff and her friend, Dr. Wusirika attended a friend’s birthday at a bar, during which Plaintiff claims that defendant Dr. Cortes acted inappropriately “handsy” with her. Plaintiff and Wusirika exchanged text messages that described the incident. While she indicates quoting two separate parts of her text exchange, she does not indicate that any language from the part quoted had been deleted from the quote. This text was relevant to her complaint and COLA’s investigation as she described it as showing prior unwelcome and inappropriate conduct by Defendant Cortes. (Id.)

On or about May 23, 2016, Plaintiff’s counsel at the time, Lisa Strutman, texted Plaintiff a draft of the addendum that contained the complete text. (See Mayorga Decl., Exh. 7.) Later that day Plaintiff returned a draft of the addendum in which she had removed some of the text. (See Mayorga Decl., Exh. 8.) That was the version that was file with the COLA, and it had several words deleted from the text. (See Mayorga Decl., Exh. 9.) The deletions apparently eliminated language suggesting that Plaintiff may have been “flirting” with Defendant, or otherwise may have encourage or, at least, did not as strongly discourage his conduct as the text did without the language. .”) Plaintiff and Wusirika both relied upon the revised texts in submitting their affidavits to the County of Los Angeles in 2016 in furtherance of the County’s investigation. COLA contends it was misled in reaching its administrative conclusions by the false addendum, although it is difficult to see how it would have reached a different result if the entire text had been included.

This lawsuit was filed in December 2016.

On or around March 22, 2017, Defendant the County served Plaintiff with request for production of documents (“RFPs”). Plaintiff responded to the County’s RFPs on or about June 17, 2017 and produced the revised version of the text messages she exchanged with Wusirika. (“Revised Texts”.) Plaintiff’s document production was not fully complete in June 17, 2019, but it did not include the full tests or other relevant texts from about the same time frame that Plaintiff had deleted from the screen shots of texts that she produced.

The first day of Plaintiff’s deposition was on January 24, 2018. As of that date the unrevised texts had not been produced, by Plaintiff’s new counsel advised all parties that the production of documents had not been completed and that Plaintiff would be producing more documents. (See Vinick Decl. ¶ 4.) Between March and May 2018, Plaintiff produced thousands of documents. The unrevised texts and all of the relevant 2013 texts not previously produced were produced in April 2018. Plaintiff’s deposition was continued in June, September, October (2 sessions), and November. The only two depositions other than Plaintiff’s first session that were completed before the 2013 texts were produced were the deposition of Defendant’s witnesses Drs. Hseih and Shavelle. (See Vinick Decl. ¶¶ 11-12.)

On September 20, 2018, Dr. Wusirika was deposed. Prior to the deposition, Plaintiff’s current counsel sent Dr. Wusirika’s counsel copies of the affidavits she signed and the Revised Texts on which they were based. She did not send the unrevised texts, but she was examined on both sets of texts during that deposition. (See Vinick Decl. ¶¶ 13-14.)

Plaintiff testified at her October 5, 2018 deposition that she had deleted certain text messages in May 2016 at the instruction of her former counsel and that the Edited Texts were the documents initially produced to the County. Plaintiff further testified that she had already taken screen shots of the full versions of the text messages prior to deletion and that the full version of the text messages comprised the documents that were subsequently produced in 2018. (See Mayorga Decl., Exh. 5.)

On September 27, 2018, Defendant USC sent a request for production of all Plaintiff’s electronic device, to which Plaintiff objected. Defendant’s motion to compel was denied by the discovery referee. (See Vinick Decl. ¶¶ 17-18.)

On December 5, 2018, Defendants served a deposition subpoena and request for production of documents, requesting the deposition of Lisa Strutman. (Referee’s Report and Recommendation re Plaintiff’s motion to Quash Deposition Subpoena of Lisa Strutman, 5.) The deposition subpoena requested that Lisa Strutman produce various documents, including all documents regarding “instructions to delete or alter text messages” and regarding the 2013 text messages generally. (Id.) Plaintiff moved to quash the deposition subpoena and request for production and the discovery referee granted Plaintiff’s motion in part, quashing the document request for communications between Plaintiff and Lisa Strutman regarding Edited Texts. (Id. at 22-23.) The referee also ordered that the document production be limited to documents contained in the client file and not include ESI, on the grounds that it would be burdensome to require ESI on such a short time frame. (Id.)

On February 28, 2019, the court denied Defendants’ joint motion for terminating sanctions and disqualification of Plaintiff’s attorney. The court ordered Plaintiff to produce to Defendants the results of Setec’s forensic examination of Plaintiff’s electronic files as well as all unproduced documents, to the extent that they are unprivileged. The court also vacated the trial date as of this hearing and reopened discovery for all purposes according to the new trial date. Further, the court set a hearing on April 22, 2019 for Defendants to bring a motion against Plaintiff for monetary sanctions.

On March 19, 2019, the parties filed further briefing regarding the status of their ESI production and ESI meet and confer telephone conference. Plaintiff argued that she and her ESI expert had fully complied. (Plaintiff’s Brief re: Further ESI, 10-12.) Defendants expert disputed Plaintiff’s contention that she had fully complied and asserted that an analysis of the metadata shows that it had been impermissibly altered contrary to Plaintiff’s assertions. (Declaration of Peter Smith, ¶¶ 7-15.)

Plaintiff’s former counsel Lisa Strutman was deposed on April 12, 2019. On June 4, 2019, County of Los Angeles moved to compel further deposition testimony and production of documents from Ms. Strutman on the grounds that she impermissibly refused to respond to certain discovery that was within the discovery referee’s order on Plaintiff’s motion to quash. Said motion is noticed for February 4, 2020.

Defendants now move for monetary and evidentiary sanctions against Plaintiff based on Plaintiff’s conduct in deleting text messages for the earlier production. Plaintiff opposes the motion. Defendants request the following evidentiary sanctions:

1. That Plaintiff Meena Zareh altered evidence in this case with the intent to deceive the trier of fact;

2. 2. That Plaintiff Meena Zareh subsequently withheld relevant, and potentially exculpatory, evidence;

3. 3. That Plaintiff Meena Zareh is not a credible witness and has perjured herself in this litigation;

4. 4. COLA' s investigation, which COLA conducted on behalf of the Sponsoring Institution (USC/LAC+USC) was tainted by false evidence and thus it is deemed that the investigation conducted by USC and COLA was legally proper; and

5. 5. Neither USC nor COLA retaliated against Plaintiff Meena Zareh.

Defendants also request a combined total of $500,013.92 in monetary sanctions. (Motion, 15-16.)

Discussion

It is well established that the primary purpose of discovery sanctions is curative, not punitive. (Welgoss v. End (1967) 252 Cal.App.2d 982, 992; Caryl Richards, Inc. v. Superior Court (1961) 188 Cal.App.2d 300, 303-304.) Generally, the discovery statutes evince an incremental approach to sanctions, starting with monetary sanctions and ending with the ultimate sanction of dismissal. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.)

Defendants argue that Plaintiff should be sanctioned because she engaged in spoliation when she altered the Full Texts to produce Revised Texts, which constitutes conduct subject to sanctions. (Motion, 10-13.) Defendants cite Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1 in support of this argument (Cedars-Sinai). Defendants argue that Plaintiff’s alteration of the Full Texts and initial production of the Revised Texts created material contradictions in her claims. (Motion, 1-3.)

Defendants argue, that, for example, Plaintiff submitted an affidavit to defendant the County attesting that "Dr. Cortes repeatedly sought me out, came to my side, and held onto my hips, wrapped his arms around me either from the side or from behind. Each time, I kept removing his hands, maneuvered myself away from him and told him to stop. He continually followed me around the bar and continually tried to wrap his arms around me. Each time I told him 'no, pleases (sic) don't,” (Motion, 2; Declaration of Jamie Mayorga (“Mayorga Decl.”), ¶ 2, Exhibit 1.) Defendants further argue that messages deleted from the Full Texts allegedly contradict this statement because they state, for example, that Plaintiff said “"The 1 thing is I think there was an attraction between us since I was an MS3r and he was an intern."” (Id., Mayorga Decl., ¶ 5.) Defendants also point to a deleted message from Wusirika, which read: “looked like you guys were flirting like crazy.” (Id.)

Finally, Defendants point to Plaintiff’s most recent document production of May 15, 2019 in support of their proposition that Plaintiff is and has been intentionally concealing documents. (Motion, 5-7; Mayorga Decl., ¶ 7, Exhibit 6.) Defendants argue that Plaintiff producing an additional 83 pages of documents in May 2019 is evidence of their continued misuse of the discovery process. A review of the May 2019 production indicates that it includes the “chat version” of the Edited Texts, which was inadvertently missed. (Mayorga Decl., ¶ 7, Exhibit 6.)

In Cedars-Sinai, plaintiff alleged that defendant hospital intentionally destroyed evidence relevant to his malpractice claims against defendant. (Cedars-Sinai, supra,18 Cal.4th 1 at p. 4.) Specifically, plaintiff alleges that during discovery, defendant hospital indicated it was unable to locate certain responsive medical records and that consequently, defendant hospital should be independently liable for the tort of spoliation. (Id. at pp. 4-5.) In concluding that no independent tort of spoliation was available in this instance, the California Supreme Court also found that “Destroying evidence in response to a discovery request after litigation has commenced would surely be a misuse of discovery within the meaning of section 2023, as would such destruction in anticipation of a discovery request.” (Id. at p. 12.)

Defendants also rely on Sherman v. Kinetic Concepts, Incorporated (1998) 67 Cal.App.4th 1152 (Sherman) in support of their argument that Plaintiff engaged in spoliation. In Sherman, plaintiff brought a product liability action against defendant manufacturer and the case proceeded to trial with a verdict in favor of the defendant. (Id. at 1158.) During trial, the jury only heard evidence of three incident reports similar to Plaintiff’s incident. (Id. at 1157.) After the trial concluded, plaintiffs moved for a new trial on the grounds that they had just learned following the trial that defendant falsely answered discovery and intentionally failed to disclose some highly relevant documents. (Id. at 1159.) In remanding the underlying action for a new trial, the Court of Appeal found that defendants had concealed material incident reports because they failed to disclose at least eight times as many similar incidents to the plaintiff’s. (Id. at 1161-1162.)

Plaintiff argues that she should not be sanctioned because she did not actually destroy any text messages, as the Full Texts existed even at the time she produced the Edited Texts and were eventually produced in their entirety. (Opposition, 16-17.) Plaintiff contends that her rolling production of documents should not be taken as evidence of her intentional concealment of evidence. Plaintiff submits the declaration of Katherine Smith in support of this proposition. Ms. Smith attests that Plaintiff’s produced documents in a total of 3 batches and selected documents for each batch depending on which documents were responsive to which witness being deposed around that date. (Declaration of Katherine L Smith (“Smith Decl.”), ¶¶ 5-8.) Ms. Smith declares that she also notified Defendants there would be a May 2018 production because Plaintiff’s counsel were working to remove false positive search results. (Id. ¶ 9.)

Plaintiff also submits the declaration of Leslie F. Levy in support of her arguments. Ms. Levy attests Defendants’ April 24, 2019 letter was their first request for emails between Plaintiff and Lisa Strutman regarding the 2013 text messages, and that her office complied with the request to the best of their knowledge. (Declaration of Leslie F. Levy (“Levy Decl.”) ¶¶ 3-4.) Ms. Levy also attests that Plaintiff’s counsel voluntarily agreed to search Plaintiff’s hard drives for documents and found additional documents, which they provided with a note that many documents had already been produced. (Id., ¶ 5.) Finally, Ms. Levy attests that any documents not initially found were due to human error in operating the software’s search function. (Id., ¶¶ 8-9.)

After reviewing all submitted evidence and the parties’ arguments, the Court finds that evidentiary sanctions or disqualification of Plaintiff’s counsel are not warranted in this case, as lesser sanctions would be sufficient to remedy the discovery violation at hand.

Here, unlike in Sherman, the court has already found on February 28, 2019 that Plaintiff produced the full versions of the text messages on April 20, 2018, without the need of judicial order or intervention. The parties do not appear to dispute in this motion whether the Full Texts have now been produced in their entirety. Nonetheless, Defendants argue that Plaintiff’s conduct was severe and aggravated, warranting the evidentiary sanctions requested, and warranting monetary sanctions for more than 200 hours of work by each defense firm since discovery of Plaintiff’s alleged wrongdoing. Defendants also argue that alteration of evidence is spoliation, notwithstanding that no permanent destruction of said evidence. (Reply, 5-6.)

However, it is undisputed that the Full Texts have now been produced and that the discovery referee issued an order, adopted by this court, quashing Defendants’ request for production of emails between Plaintiff and Lisa Strutman regarding the 2013 text messages. Although Defendants argue on Reply that Plaintiff’s alteration of the Full Text at all constitutes spoliation, whether the revision of the texts meets one definition of spoliation is not the critical question. First, this is a motion for discovery sanctions. The text revisions occurred prior to the case being filed. That does not make them appropriate, but it does not make the revisions a discovery issue. Second, there is no showing that relevant documents are not available. True, Defendants no longer believe Plaintiff’s representations, so they look harder, but that is a common byproduct of discovery disputes.

Even though the documents were produced eventually, Plaintiff’s initial response to the requests to produce documents constitute discovery abuses, particularly since she had but did not produce the unrevised texts. In addition, Plaintiff produced the Revised Texts, which are fabricated evidence, without disclosing the revisions. Defendants litigated the case for more than a year, and took depositions, in reliance on those inaccurate discovery responses. Once the revisions were finally revealed, Defendants propounded additional discovery most of which was denied on motions to compel. Although, the additional amount of time for depositions of the Plaintiff and Dr. Wusirika are not set forth, there was undoubtedly additional discovery resulting from the revisions to the texts. In addition, the deposition of Ms. Strutman would not have occurred but for the text revisions. There was also some additional computer forensic work done but it is not clear it would not have been done but for the revisions.

It appears Defendants may be entitled to some monetary sanctions, but the evidentiary showing does not permit the court to evaluate the basis for the requests for fees. Defendants’ counsel may file by December 31, 2019 additional declarations in support of their fee requests detailing the activities for which fees are being requested, the amounts attributable to those activities, and the factual basis for why that activity would not have taken place but for the text revisions. The court is not inclined to award fees for unsuccessful motions to compel. Plaintiffs may file responsive papers to the new declarations no later than January 15, 2020 and this motion is continued to January 22, 2019 at 8:30 a.m. in this department.

The court DENIES Defendants’ request for evidentiary sanctions and disqualification. Defense counsel is to give notice.

[1] On June 30, 2017, the court signed an order dismissing Plaintiff’s fourth and fifth causes of action against the County pursuant to a stipulation by the parties; only the second and third causes of action remain against the County.

**************************************************

HEARING DATE: November 19, 2019

CASE NUMBER: BC644274

CASE NAME: Meena Zareh M.D. v. County of Los Angeles, et al.

MOVING PARTY: Defendants University of Southern California; Keck Medicine of USC; Keck Medical Center of USC;

RESPONDING PARTY: Plaintiff Meenah Zareh

TRIAL DATE: September 15, 2020

PROOF OF SERVICE: OK

PROCEEDING: Defendants’ University of Southern California; Keck Medicine of USC; Keck Medical Center of USC’s Motion to Strike First Amended Complaint

OPPOSITION: Timely filed November 5, 2019

REPLY: Timely filed November 12, 2019

TENTATIVE: The Defendants’ University of Southern California; Keck Medicine of USC; Keck Medical Center of USC’s Motion to Strike is GRANTED with 30 days leave to amend. Counsel for moving parties to give notice.

Background

This case arises from allegations that Defendant Guillermo Andres Cortes, M.D. (“Cortes”) committed sexual harassment and sexual battery against Plaintiff Meena Zareh, M.D. (“Zareh”), while she was a doctor at Los Angeles County University of Southern California Medical Center (“LAC+USC”). Plaintiff further alleges that she faced harassment and retaliation, as well as other violations of the Labor, Civil and Education Code by Defendants Cortes, the County of Los Angeles (the “County”) and Defendants the University of Southern California, Keck Medicine of USC and Keck Medical Center of USC (collectively “USC Defendants”).

In the Complaint, Plaintiff alleges seven causes of action for: (1) violation of Civil Code, § 1708.5, sexual battery against Cortes; (2) harassment in violation of the Fair Employment and Housing Act (“FEHA”) against all Defendants; (3) retaliation in violation of the FEHA against all Defendants; (4) violation of Labor Codes, §§ 1102.5 and 98.6 against Defendants the County and USC Defendants; (5) violation of Civil Code, §§ 51.9 and 52 against all Defendants; (6) violation of the California Equity in Higher Education Act against USC Defendants; and (7) violation of Civil Code, § 52.4 against Cortes.

On August 23, 2019, Plaintiff filed a First Amended Complaint with leave of court, adding additional factual allegations and a request for punitive damages against the USC Defendants.

USC Defendants now move to strike these additional factual allegations and the request for punitive damages on the grounds that they are improper. Plaintiff opposes the motion.

Meet and Confer

Effective January 1, 2018, a party filing a motion to strike must meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion and identify all of the specific allegations that it believes are subject to be stricken and identify with legal support the basis of the deficiencies. (Code Civ. Proc., § 435.5, subd. (a).)

USC Defendants do not appear to have submitted any declaration to establish that they have met their meet and confer efforts under Code of Civil Procedure section 435. Nevertheless, Plaintiff does not appear to dispute the motion on this basis. Plaintiff submits the declaration of Hillary Hammell in support of her opposition. Ms. Hammell declares that she and counsel for USC Defendants met and conferred by telephone on or about October 11, 2019. (Declaration of Hillary Hammell, ¶ 1.) In addition, Ms. Hammell declares that she and USC Defendants’ counsel exchanged emails regarding their relative positions on the proposed meet and confer. (Id. at ¶¶ 1-2.)

Accordingly, given that Plaintiffs do not dispute the sufficiency of meet and confer efforts, the court finds that USC Defendants have satisfied their obligation to meet and confer prior to filing the instant motion.

Discussion

  1. Legal Standard

Pursuant to Code of Civil Procedure, section 436, “the court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” The grounds for a motion to strike must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.)

Motions to strike are used to challenge defects in the pleadings not subject to demurrer. (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 529 [recognizing that an objection that the complaint failed to state facts sufficient to constitute a cause of action is ground for a general demurrer, not a motion to strike.].) Any party may move to strike the whole or any part of a pleading within the time allotted to respond to the pleading. (Code Civ. Proc., § 435, subd. (b)(1).) The allegations of a complaint “must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “read[s] allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume[s] their truth.” (Clauson v. Sup. Ct. (1998) 67 Cal.App.4th 1253, 1255 (Clauson).)

USC Defendants move to strike the FAC’s prayer for punitive damages as well as portions of the FAC containing allegations of USC Defendants’ conduct relating to the prayer for punitive damages. (FAC, ¶ 44:13-14; ¶ 47:19; ¶ 52:22-23; ¶ 55:55; ¶ 75:13-17; ¶ 87:14-18; ¶96; ¶ 112:15-19; Prayer, line 5.) USC Defendants argue that (1) Drs. Shavelle and Opas are not managing agents of USC Defendants within the meaning of requirements for pleading punitive damages against corporate defendants, and (2) Plaintiff has failed to sufficiently allege that any conduct by USC Defendants are oppressive, malicious, or despicable. (Motion, 2-8.)

Plaintiff opposes the motion and alleges that their new allegations regarding punitive damages are properly pled.

  1. Managing Agent under Civil Code section 3294

Section 3294 provides, in relevant part, that a plaintiff may seek punitive damages “[i]n an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice” (Civ. Code, § 3294.) Further, a plaintiff seeking punitive damages against a corporate employer must allege that the alleged wrongdoing was committed by an “officer, director, or managing agent of the corporation.” (Civ Code § 3294(b).)

For purposes of determining an employer’s ratification, Plaintiff must allege that the employer “demonstrate[d] an intent to adopt or approve oppressive, fraudulent, or malicious behavior by an employee in the performance of his job duties.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 726.) Further, for purposes of determining whether the alleged employee who committed wrongdoing was a “managing agent,” the test is whether the employee is able to “exercise substantial independent authority and judgment in their corporate decisionmaking so that their decisions ultimately determine corporate policy.” (White v. Ultramar (1999) 21 Cal.4th 563, 566-567.) “To demonstrate that an employee is a true managing agent . . . a plaintiff seeking punitive damages would have to show that the employee exercised substantial discretionary authority over significant aspects of a corporation’s business. (Id. at p. 577.)

Here, the FAC alleges that the USC Defendants employed Drs. Shavelle and Opas. (FAC ¶ 4.) Dr. Shavelle is alleged to be the program director of the Cardiology Fellowship at USC and is alleged to be in charge of almost every aspect of the Fellowship, including: “designing the curriculum and determining the official goals and objectives of the Fellowship Program; establishing policies on the supervision of doctors in the Fellowship Program; establishing the written criteria and processes for the selection, evaluation and dismissal of doctors in the Fellowship Program; designing and implementing a process for academic discipline of doctors in the Fellowship Program; deciding whether a doctor is in academic good standing and can remain in the Fellowship Program; and determining if and when a doctor has completed the curriculum of the Fellowship Program.” (FAC, ¶¶ 24, 41.) Dr. Opas is alleged to be the Associate Dean of Graduate Medical Education for USC Keck and allegedly “responsible for creating and approving all policies and procedures that relate to graduate medical education program at USC Keck, including but not limited to the following: establishing and implementing policies that affect the academic training and work environment for doctors working as residents and fellows; supervising all clinical operations; assuring that all residency and fellowship programs comply with all requirements set forth by the ACGME; and approving all decisions made by all Program Directors at USC Keck. “ (FAC, ¶ 49.) Dr. Opas is alleged to be a managing agent because he was “empowered and authorized by USC Keck to exercise substantial independent authority and judgment over decisions, rules and other matters that affect the operations all graduate medical education programs at USC Keck.” (FAC, ¶ 56.)

USC Defendants argue that these allegations are insufficient to establish that Drs. Shavelle and Opas were managing agents because they do not establish that these doctors had the ability to affect USC’s corporate policy, or policy with respect to its other schools and business operations. (Motion 2-4.) USC Defendants argue that, at best, Plaintiff alleges that she was harmed by her educational superiors. Plaintiff contends that she was not required to plead facts to establish that Drs. Shavelle and Opas had control over the corporate policy for all of USC Defendants.

Plaintiff is correct that she does not have to allege that the individuals had corporate control over policy for all of USC, but they do need to allege that they had “most, if not all, the responsibility of running” a significant part of the corporate business. (White v. Ultramar (1999) 21 Cal.4th 563, 577.) Here, Plaintiffs do not alleged that USC Keck is a significant part of USC’s business. Assuming it is, they do not allege that Graduate Medical Education is a significant part of USC Keck or that the Cardiology Medicine Fellowship is a significant part of the Graduate Medical Program. More significantly, the FAC does not allege that either person has more than input into the ultimate policies they deal with. Dr. Opas is alleged to be the Assistant Dean, reporting to the Dean. Presumably the Dean approves or disapproves Dr. Opas’ policy recommendations, and his decisions may be subject to further policy review. It is not alleged that all his policy recommendations are final because he has been delegated control. Dr. Shavelle is part of a much smaller part of USC Keck, and there are no allegations that he had been delegated control over the policies either. The appropriate test is whether the employee had control over “significant aspects of a corporation’s business.” (White, supra, 21 Cal.4th 563 at p. 577.) At most the FAC alleges facts that suggest they have input over policies, particularly since their limited roles are highlighted by setting out people they must answer to above them in the hierarchy. Their allegations are insufficient to establish that Drs. Shavelle and Opas were managing agents for purposes of Civil Code section 3294.

  1. Oppression, Fraud or Malice under Civil Code section 3294

“Malice means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294 subd. (c)(1).) “Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.” (Civ. Code, § 3294 subd. (c)(2).) “Fraud means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civ. Code, § 3294, subd. (c)(3).) A plaintiff’s “conclusory characterization of defendant’s conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice, express or implied, within the meaning of section 3294.” (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864.)

USC Defendants argue that Plaintiff has not sufficiently stated a prima facie claim for punitive damages because none of the alleged conduct rises to the level of oppressive, fraudulent or malicious. (Motion, 5-8.) Plaintiff contends that the pleading standards for malice under the Fair Employment and Housing Act (“FEHA”) are lower, and that the FAC, taken together, adequately alleges malice to meet this lower standard. (Opposition, 15-18.)

Monge v. Superior Court (1986) 176 Cal.App.3d 503 is instructive. In Monge, an employee saw a sexually suggestive message on her computer terminal while she was operating it in the course of her employment. (Id. at 506-507.) The employee complained to her immediate supervisor, who transmitted the complaint to her own supervisor. (Id. at 507.) The supervisors allegedly took no action, which resulted in the employee and immediate supervisor filing a complaint alleging sexual harassment under the FEHA. (Id.) Plaintiffs’ complaint included these factual allegations and also included allegations that the employers acted “with the intent to harm the Plaintiffs, and with willful or reckless disregard for the consequences to the Plaintiffs.” (Id.) In issuing a writ of mandate vacating the trial court’s order granting the employers’ motion to strike punitive damages, the Court of Appeal found that Plaintiff’s complaint was sufficient to plead punitive damages as part of a FEHA sexual harassment claim when read as a whole.

Given the foregoing, the court finds that Plaintiff has sufficiently alleged facts for purposes of a claim for punitive damages. Plaintiff’s claim for punitive damages is similar to the facts in Monge, in which she has sufficiently described in her FAC as whole the facts and circumstances which, if proven to be true, would support a claim for punitive damages. For example, Plaintiff has alleged that Dr. Shavelle responded to her complaint regarding defendant Dr. Cortes with “victim shaming” (FAC ¶ 26), that he repudiated her request for another meeting to seek accommodations on her work schedule (FAC ¶ 38), and that she received a letter wrongfully accusing her of not attending a mandatory meeting. (FAC ¶ 39). Plaintiff makes similar allegations that her complaints were ignored by Dr. Opas, even though she does not allege that she specifically complained to Dr. Opas. (FAC ¶¶ 49-56.) Taking Plaintiff’s complaint as a whole, if the FAC had properly alleged that the doctors were managing agents, Plaintiff arguably sufficiently alleged oppressive, malicious or fraudulent conduct. However, since she has not alleged actions by managing agents of USC the allegations should be stricken.

Conclusion

Given the foregoing, the USC Defendants’ Motion to Strike is GRANTED with 30 days leave to amend.