WYNDMANN SHELTON VS QUEEN OF THE VALLEY HOSPITAL ET AL

Tentative Rulings

Case Number: BC633788    Hearing Date: December 23, 2019    Dept: 4B

[TENTATIVE] ORDER RE: MOTION FOR TERMINATING SANCTIONS

On September 12, 2016, plaintiff Wyndmann Shelton aka Wyndy Shelton filed this action against defendant David Jon D.O. Gutkin (“Defendant”) for medical malpractice. Defendant filed a motion to compel Plaintiff to file an undertaking of $8,292.80 to secure fees and costs. On September 30, 2019, the Court granted the motion and ordered Plaintiff to file an undertaking within 30 days after service of the order. The Court stated that if Plaintiff failed to file the undertaking, the action would be dismissed as to Defendant. On October 2, 2019, Defendant served a notice of ruling on Plaintiff by mail. As of November 15, 2019, Plaintiff had not filed an undertaking. On November 15, 2019, Defendant filed this motion to dismiss. Plaintiff did not file an opposition.

Code of Civil Procedure section 1030, subdivision (d) states that if a plaintiff does not file an undertaking within the time allowed, “the plaintiff’s action . . . shall be dismissed as to the defendant in whose favor the order requiring the undertaking was made.” This statute does not give the Court discretion in the matter. Accordingly, the motion is GRANTED, and the claims against Defendant are dismissed.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT4B@lacourt.org indicating intention to submit on the tentative.

Case Number: BC633788    Hearing Date: December 12, 2019    Dept: 4B

[TENTATIVE] ORDER RE: MOTION TO BE RELIEVED

Bruce M. Bunch seeks to be relieved as counsel of record for plaintiff Wyndmann Shelton aka Wyndy Shelton on the grounds that an irreparable breakdown has created a conflict of interest. Absent a showing of resulting prejudice, an attorney’s request for withdrawal should be granted. (People v. Prince (1968) 268 Cal.App.2d 398, 406.) Counsel’s Motion complies with California Rules of Court, Rule 3.1362. The Court notes that trial in this matter is currently set for May 29, 2020 and no prejudice will result from granting this motion. Accordingly, this unopposed motion to be relieved is GRANTED and effective upon filing a proof of service showing service of this Order on Plaintiff and all parties who have appeared.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT4B@lacourt.org indicating intention to submit on the tentative.

Case Number: BC633788    Hearing Date: October 25, 2019    Dept: 4B

[TENTATIVE] ORDER RE: MOTION TO COMPEL PLAINTIFF’S DEPOSITION

Defendant David Jon Gutkin, M.D. (“Defendant”) seeks an order compelling plaintiff Wyndman Shelton (“Plaintiff”) to attend a deposition scheduled for November 11-12, 2019 and to produce the documents requested in her Notice of Deposition. Plaintiff’s deposition began on August 8, 2019 in Louisiana but was suspended after one and a half hours after Plaintiff developed a fever of 100.7 degrees. The parties then rescheduled Plaintiff’s deposition for September 24-25, 2019 to take place at Plaintiff’s bedside in Louisiana. However, the day before the deposition, Plaintiff’s attorney cancelled the deposition, stating Plaintiff was unwell. Plaintiff’s deposition is currently scheduled for November 11-12, 2019. Defendant seeks sanctions for Plaintiff’s failure to proceed with the September 24-25 deposition and last-minute cancellation after defense counsel had already made travel arrangements.

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.) A properly served deposition notice is effective to require a party or party-affiliated deponent to attend and to testify, as well as to produce documents for inspection and copying. (Code Civ. Proc., § 2025.280, subd. (a).) “If, after service of a deposition notice, a party . . . without having served a valid objection . . . fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving notice may move for an order compelling deponent’s attendance and testimony, and the production . . . of any document . . . described in the deposition notice.” (Code Civ. Proc., § 2025.450, subd. (a).)

Plaintiff contends she was unable to attend her September 24-25 deposition because she was unwell, but presents no evidence, such as statement from a doctor, about her inability to attend. Defendant has been trying to take Plaintiff’s deposition for more than a year. Defendant has taken reasonable steps to accommodate Plaintiff’s medical situation and has the right to take Plaintiff’s deposition in full. Thus, the Court GRANTS Defendant’s motion and orders Plaintiff to appear for her deposition on November 11-12, 2019.

Where a motion to compel a party’s appearance and testimony at deposition is granted, the court shall impose a monetary sanction in favor of the party who noticed the deposition and against the deponent, unless the court finds the one subject to sanctions acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2025.450, subd. (g)(1).) Plaintiff states she will appear at the November 11-12 deposition. At this point, the Court does not impose sanctions based on Plaintiff’s assurances.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT4B@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.