NAILAH SMITH VS BRUCE B MCLUCAS ET AL

Tentative Rulings

Case Number: ****2013 Hearing Date: September 1, 2022 Dept: O

Case Name: Smith v. McLucas, et al.

SUBJECT: MOTION FOR TERMINATING SANCTIONS

MOVING PARTY: Defendants Bruce B. McLucas M.D., Bruce B. McLucas, MD, a professional corporation and Fibroid Treatment Collective

RESP. PARTY: Plaintiff Nailah Smith

TENTATIVE RULING

Defendants Bruce B. McLucas M.D., Bruce B. McLucas, MD and Fibroid Treatment Collective’s Motion for Terminating Sanctions is DENIED. No lesser sanction for discovery abuse was requested.

I. Applicable Law

Terminating sanctions should not be imposed lightly and a graduated imposition of

sanctions should be used if possible. See Mileikowsky v. Tenet Healthsystem (2005) 128

Cal.App.4th 262, 279-280 (decision to impose terminating sanctions should not be made lightly

but such sanctions are justified in cases of repeated discovery abuse and evidence that lesser

sanctions will be ineffectual); Thomas v. Luong (1986) 187 Cal.App.3d 76, 81–82; see also

Morgan v. Ransom (1979) 95 Cal.App.3d 664, 669 (incarcerated, indigent, pro per plaintiff's

delay in serving responses insufficient to justify imposition of terminating sanctions where no

prejudice demonstrated). Moreover, discovery sanctions are not intended to punish but to

accomplish discovery. See Newland v. Supr. Ct. (1995) 40 Cal.App.4th 608, 613.

“The discovery statutes…evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. Although in extreme cases a court has the authority to order a terminating sanction as a first measure, a terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective.” Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.

II. Terminating sanctions are unwarranted in light of Plaintiff’s ultimate compliance with the discovery requests

Defendants argue the following instances of discovery abuse committed by Plaintiff:

(1) Plaintiff failed to timely respond to discovery propounded on 3-12-20 (“3-12-20 Discovery”), despite being granted two extensions.

(2) After responses were served to the 3-12-20 Discovery, further responses were required and parties entered into a stipulation requiring further responses by 11-16-20, which Plaintiff failed comply with until 12-23-20.

(3) On 6-9-21, the Court held an IDC regarding Defendant’s 1-15-21 Discovery. Plaintiff stipulated during the IDC to provide further responses to Defendant McLucas’s Form Interrogatories (set two), RFAs (set two) and RFP (set two) by 6-24-2. Plaintiff did not comply until another IDC was held on 6-24-21 and further responses were served on 7-8-21.

(4) On 11-2-21, Defendant propounded Special Interrogatories (Set Three), Request for Admission (Set Three), RFPs (Set Three) and Form Interrogatories (Set Three)(“11-2-21 Discovery”), as the parties allegedly stipulated. Plaintiff responded to the 11-2-21 Discovery with objections only.

(5) On 3-31-22, parties stipulated to reopen discovery and allow Defendants to propound Special Interrogatories (Set Two), Special Interrogatories (Set Three), RFPs (Set Three), RFAs (Set Three) and Form Interrogatories (Set Three) (“3-31-22 Discovery”). Plaintiff responded to the 3-31-22 Discovery with objections only despite having stipulated to reopening discovery for the 3-31-22 Discovery.

(6) Plaintiff repeatedly refused to appear for deposition as repeatedly noticed and finally appeared for deposition on 8-19-21, more than a year after the first deposition notice was served and after the discovery cut off.

Based on these identified instances of discovery abuse, terminating sanctions are not warranted. Plaintiff ultimately complied with the discovery identified throughout the litigation. Plaintiff provided responses throughout the litigation. Unlike the plaintiff in Mileikowsky, her compliance was not “only” due to the “threat of terminating sanctions.” Mileikowsky, supra, 128 Cal.App.4^th at 280.

To the extent Plaintiff served untimely responses or asserted meritless objections, Defendant could have requested monetary sanctions or other lesser sanctions. Discovery sanctions are not intended to be punitive and should only be imposed to accomplish discovery. See Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.

The parties’ stipulations are tantamount to discovery orders for purposes of sanctions, particularly since a number of them were arrived at during an IDC with the Court. “The issue becomes whether the stipulation can be seen as tantamount to the requisite order. We see no reason why it cannot.” Mileikowsky, supra, 128 Cal.App.4^th at 278–279. However, the mere fact that Plaintiff committed discovery abuse does not automatically entitle McLucas to terminating sanctions. Again, McLucas could have requested monetary sanctions or issue sanctions in response to each instance of delayed discovery responses and/or meritless objections.

Plaintiff adopts the ridiculous position that a stipulation to propound discovery does not amount to a discovery order requiring a response. If the parties stipulated to allow for discovery, Plaintiff was required to respond as she was required to respond to any legitimately propounded discovery under the Code. To interpret the stipulation otherwise would be illogical. There would be no reason stipulate to discovery if Plaintiff was not required to answer. A failure to answer entirely would qualify as discovery abuse under CCP 2023.010.

However, Plaintiff ultimately responded to all stipulated discovery, although untimely and with objections only. On this point, the Court agrees with Plaintiff. Plaintiff was entitled to assert objections to discovery and she did not waive that right in the stipulations. If her objections were meritless, Defendant McLucas was entitled under the Code to move for further response and obtain monetary, issue, or evidentiary sanctions against Plaintiff.

Defendant McLucas’s Motion for Terminating Sanctions is DENIED.

Case Name: Smith v. McLucas, et al.

SUBJECT: MOTION TO COMPEL FURTHER RESPONSES TO RFPs (Set Three)

MOVING PARTY: Defendants Bruce B. McLucas M.D., Bruce B. McLucas, MD, a professional corporation, and Fibroid Treatment Collective

RESP. PARTY: Plaintiff Nailah Smith

TENTATIVE RULING

Defendants Bruce B. McLucas M.D., Bruce B. McLucas, MD and Fibroid Treatment Collective’s Motion to Compel Further Responses to RFPs (Set Three) is GRANTED. Plaintiff is ordered to serve further responses without objections within 5 days. Defendants failed to request any monetary sanctions.

Defendants seek responses to 3 RFPs, which seek documentation pertaining to Plaintiff’s Toradol prescription. Plaintiff responded only with objections. Defendants argue Plaintiff stipulated to allow Defendants to propound these interrogatories. Despite the stipulation, Plaintiff objected to the discovery on grounds that the declaration of necessity was inadequate.

In response, Plaintiff argues she never stipulated to respond to the discovery, nor did she ever stipulate to waive objections. Plaintiff argues Defendants never met and conferred in good faith prior to filing this motion. Plaintiff maintains the discovery requests cover topics already covered during deposition and in prior discovery. Plaintiff argues Defendants have already obtained her full medical records and the discovery is unnecessary and duplicative.

Plaintiff’s objections are meritless. Plaintiff also fails to identify precisely what prior discovery responses would have responded to the subject RFPs. She fails to establish that the discovery requests are improperly duplicative.

Case Name: Smith v. McLucas, et al.

SUBJECT: MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES (SET TWO)

MOVING PARTY: Defendants Bruce B. McLucas M.D., Bruce B. McLucas, MD, a professional corporation and Fibroid Treatment Collective

RESP. PARTY: Plaintiff Nailah Smith

TENTATIVE RULING

Defendants Bruce B. McLucas M.D., Bruce B. McLucas, MD and Fibroid Treatment Collective’s Motion to Compel Further Responses to Special Interrogatories (Set Two) is GRANTED. Plaintiff is ordered to serve further responses without objections within 5 days. Defendants did not request any monetary sanctions in connection with the motion.

Defendants seek responses to 16 interrogatories, which seek information regarding Toradol and Ibuprofen taken by Plaintiff from 6-30-17 to 7-4-17. Plaintiff responded only with objections. Defendants argue Plaintiff stipulated to allow Defendants to propound these interrogatories. Despite the stipulation, Plaintiff objected to the discovery on grounds that the declaration of necessity was inadequate.

In response, Plaintiff argues she never stipulated to respond to the discovery, nor did she ever stipulate to waive objections. Plaintiff argues Defendants never met and conferred in good faith prior to filing this motion. Plaintiff maintains the discovery requests cover topics already covered during deposition and in prior discovery. Plaintiff argues Defendants have already obtained her full medical records and the discovery is unnecessary and duplicative.

Plaintiff’s objections are meritless. Plaintiff fails to identify precisely what prior discovery responses would have responded to the subject Special Interrogatories. She fails to establish that the discovery requests are improperly duplicative.

Case Number: ****2013 Hearing Date: August 16, 2022 Dept: O

SUBJECT:

(1) PETITION FOR FOR LEAVE TO INTERVENE

MOVING PARTY: (1) Defendants Bruce D. McLucas, M.D., Bruce D. McLucas, M.D., a professional corporation, Fibroid Treatment Collective, and Hilltop Specialty Insurance Company (formerly known as Hudson Specialty Insurance Company)

RESP. PARTY: (1) Plaintiff Nailah Smith

(2) MOTION TO STRIKE PETITION FOR LEAVE TO INTERVENE

MOVING PARTY: (2) Plaintiff Nailah Smith

RESP. PARTY: (2) Defendants Bruce D. McLucas, M.D., Bruce D. McLucas, M.D., a professional corporation, Fibroid Treatment Collective, and Hilltop Specialty Insurance Company (formerly known as Hudson Specialty Insurance Company).

Intervenor, Hudson Specialty Insurance Company aka Hilltop Specialty Insurance Company’s (collectively “Hudson”) Petition for leave to intervene under CCP 387 is GRANTED. Hudson is added as a named defendant in this action forthwith.

Prior to filing its answer to the complaint, however, Hudson must post a bond under CCP 1616 in an amount that the Court determines is sufficient to secure the payment of any final judgment which may be rendered in this action against the McLucas defendants.

The Court determines the amount of the bond to be posted by Hudson is . The bond is to be posted within 10 days. Thereafter, Hudson may file its answer forthwith. If a bond is not posted timely, the answer may not be filed, and the Court will order a default be entered against Hudson.

Plaintiff’s Motion to Strike Hudson’s Petition is DENIED.

Plaintiff’s Motion for Sanctions under CCP 128.7 is DENIED

Case Number: ****2013 Hearing Date: July 7, 2022 Dept: O

Case Name: Smith v. McLucas, et al.

SUBJECT: MOTION TO TAX COSTS

MOVING PARTY: Plaintiff Nailah Smith

RESP. PARTY: Defendant Ronald Lang, MD

TENTATIVE RULING

Plaintiff’s Motion to Tax Costs is DENIED as to Item 1(f) and GRANTED as to Item 1(d): $60 filing fee for motion for terminating sanctions, and Item 5(a): $1,580 service of process costs incurred in connection with deposition subpoenas. Court to sign proiposed order filed .

Plaintiff challenges Items 1(d) ($60 filing fee for motion for terminating sanctions), 1(f) (filing fee for exparte to shorten time to here MSJ) and 5(a) ($1,580 service of process costs incurred in connection with deposition subpoenas.) Filing and motion fees are expressly recoverable under CCP 1033.5(a)(1). Service of process fees are also expressly recoverable under CCP 1033.5(a)(4). The burden is therefore on Plaintiff to establish that the fees incurred in connection with the Motion for Terminating Sanctions and the ex parte application to shorten time were unnecessary or unreasonable. See Rozanova, supra, 68 Cal.App.4^th at 459.

Plaintiff establishes that the motion for terminating sanctions was not reasonably necessary to the conduct of the litigation. It is undisputed that the fees were paid, but Defendant never filed the motion. This is distinguishable from the usual scenario of a motion being denied after it was filed or taken off calendar because other circumstances rendered it moot. The motion to strike the $60 in filing fees for the motion for terminating sanctions is GRANTED.

Plaintiff fails to establish that the ex parte application to specially set Lang’s summary judgment for hearing was unreasonable or unnecessary. The ex parte application was granted, the Court having found the requested order to be necessary in order to comply with statutory deadlines applicable to MSJs. The motion to strike the $60 ex parte filing fee is DENIED.

Plaintiff establishes that Item 5 for Service of Process costs is objectionable. The costs are for “subpoena various medical records.” See Memo of Costs, Item 5(a). Defendant Lang failed to identify the name of the person served, nor does it appear the costs were for service of process, e.g. service of a deposition subpoena. Instead, it appears the costs are to obtain the medical records themselves. Defendant submits invoices to support the costs sought under Item 5(a). See Opposition, Ex. G. The invoices are not clearly for service of the deposition subpoenas. The invoices indicate they are for items such as “base fee-subpoena,” “subpoena preparation,” “witness fee,” “check charge” and “bates stamping.” Plaintiff’s motion to tax costs is granted as to Item 5(a).

Case Number: ****2013 Hearing Date: March 17, 2022 Dept: O

Case Name: Smith v. McLucas, et al.

SUBJECT: MOTION FOR SUMMARY JUDGMENT

MOVING PARTY: Defendant Ronald Lang, M.D.

RESP. PARTY: None as of 3-14-22 (Notice of Non-Opposition filed by Defendant Lang)

TENTATIVE RULING

Defendant Ronald Lang M.D.’s Motion for Summary Judgment is GRANTED. Plaintiff did not file an opposition to this MSJ.

The only remaining cause of action alleged against Defendant Lang is for professional negligence. Defendant negates the essential elements of breach and causation with the expert declaration of Eric Wechsler, M.D. See Defendant’s SSUMF Nos. 21-28. Defendant submits evidence that the care he rendered to Plaintiff was within the applicable standard of care and that nothing he did or failed to do caused or contributed to the Plaintiff’s claimed injuries or damages. Id.; Dec. of D. Wechsler, 26-33.

Defendant satisfies their burden as moving party on summary judgment, and the burden shifts to Plaintiff to raise a triable issue of material fact as to breach and causation. Plaintiff failed to file any opposition. No triable issues of material fact remain. Defendant Lang’s Motion for Summary Judgment is GRANTED.

b'

Case Number: ****2013 Hearing Date: September 16, 2021 Dept: O

Case Name: Smith v. McLucas, et al.

SUBJECT: MOTION TO TAX COSTS

MOVING PARTY: Plaintiff Nailah Smith

RESP. PARTY: Defendants Michael Jay Soffer, MD and Michael Jay Soffer, MD, Inc.

TENTATIVE RULING

Plaintiff Nailah Smith’s Motion to Tax Costs in the amount of $5,157 is GRANTED. Defendants Soffer and Michael Jay Soffer, MD, Inc. filed a notice of non-opposition, stipulating that the costs at issue be taxed. Judgment shall reflect costs in the remaining amount of $1,614 as set forth in the memo of costs filed on 6-23-21.

Case Number: ****2013    Hearing Date: January 14, 2021    Dept: O

Case Name: Smith v. McLucas, et al.

TENTATIVE RULING

Defendant Michael Daignault’s motion for terminating sanctions (joined in by the remaining defendants) is DENIED.

Plaintiff’s counsel stipulated to an order compelling Plaintiff to provide responses and supplemental responses to numerous discovery requests. Plaintiff timely provided most of the responses before the Court ordered December 1, 2020 deadline. On December 4, 2020 Plaintiff’s counsel emailed all counsel explain why the remaining responses were not yet provided and expressed his intention to provide those responses. The last of the responses were served on December 23, 2020

In the meantime, on December 4, 2020 Defendant Daignault filed and served the instant motion for terminating sanctions to be heard on January 14, 2020. Defendant did not request any lesser sanction.

            “Taking an incremental approach: Judges should select sanctions that are tailored to the harm caused by the misuse of the discovery process and should not exceed what is required to protect the party harmed by that misuse. (Citation.) The discovery statutes indicate that judges should generally take an incremental approach to imposing sanctions for discovery abuses, starting with monetary sanctions and ending with the ultimate sanction of termination. (Citation.) If a lesser sanction fails to curb a party's misuse of the discovery process, then the imposition of a greater sanction is warranted; continuing abuses of that process warrant incrementally harsher sanctions until a sanction is reached that curbs the abuse. (Citation.)  “Imposing a terminating sanction. Although a decision to order a terminating sanction should not be made lightly, a judge is justified in imposing this ultimate sanction for a party's willful violation that has been preceded by a history of abuse, when the evidence shows that less severe sanctions would not produce compliance with the discovery rules. (Citations.)

(Cal. Judges Benchbook Civ. Proc. Discovery ; 6.5 Selecting Appropriate Sanction. Emphasis added.)

            While the Court agrees with the defendants that there is a significant history of delay by Plaintiff in responding to the multiple discovery requests propounded by the defendants, the Court cannot find that Plaintiff’s partial late compliance with the Court’s stipulated order warrants the Court’s imposition of the ultimate sanction of termination.

Case Number: ****2013    Hearing Date: July 21, 2020    Dept: O

Case Number: ****2013    Hearing Date: February 26, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

AFTER REVIEW OF THE COURT FILE, THE COURT MAKES THE FOLLOWING ORDER:

Department 31 of the Personal Injury Court has determined that the above entitled action is complicated based upon the number of pretrial hearings and/or the complexity of the issues presented. 

AT THE DIRECTION OF DEPARTMENT 1:

This case is hereby transferred and reassigned to the following Independent Calendar Court in THE WEST DISTRICT, JUDGE H. JAY FORD III presiding in DEPT. WE-O of the SANTA MONICA COURTHOUSE, for all purposes except trial. Department 1 hereby delegates to the Independent Calendar Court the authority to assign the cause for trial to that Independent Calendar Court.  

The Order is signed and filed this date, and incorporated herein by reference.  Any pending motions or hearings, including trial and status conferences, will be reset, continued or vacated at the direction of the newly assigned Independent Calendar court.

UPON RECEIPT OF THIS NOTICE, COUNSEL FOR PLAINTIFF SHALL GIVE NOTICE TO ALL PARTIES OF RECORD.

DATED: February 26, 2020 ___________________________