Motion to Compel Discovery in Jane Doe vs. Brien Tonkinson, M.D.| Trellis.Law

On August 16, 2021 a Party Discovery was filed involving a dispute between Doe, Jane, and Central Calif E N T Medical Gr, Central California Ear Nose And Throat, Central California Ear Nose & Throat Medical Group, Tonkinson, Brien, Medical Doctor, Tonkinson, Jennifer, Tonkinson, M.D., Brien, for 15 Unlimited - Other Employment in the District Court of Fresno County.

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E-FILED
5/11/2022 10:51 AM
Superior Court of California
EMPLOYMENT LAWYERS County of Fresno
1 By: Estela Alvarado, Deputy
LEONARD EMMA (SBN 224483)
2 lemma@employment-lawyers.com
1999 Harrison Street, 18th Floor
3 Oakland, CA 94612
Tel: (415) 362-1111
4 Fax: (415) 362-1112
5
Attorneys for Plaintiff
6 JANE DOE

7 SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 COUNTY OF FRESNO
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10 JANE DOE, as an individual, Case No. 21CECG02422

11 Plaintiff, PLAINTIFF’S NOTICE OF MOTION
vs. AND MOTION TO COMPEL INITIAL
1999 Harrison Street, 18th Floor

12 RESPONSES FROM DEFENDANT
EMPLOYMENT LAWYERS

CENTRAL CALIFORNIA EAR NOSE & CENTRAL CALIFORNIA EAR NOSE &
Oakland, CA 94612

13 THROAT MEDICAL GROUP, an entity
THROAT MEDICAL GROUP,
(415) 362-1111

of unknown form; CENTRAL CALIF E N
14 T MEDICAL GR, an entity of unknown WITHOUT OBJECTIONS, TO
form; BRIEN TONKINSON, an PLAINTIFF’S SPECIAL
15 individual; JENNIFER TONKINSON, an INTERROGATORIES, SET ONE;
individual; and DOES 1 to 100, inclusive, MEMORANDUM OF POINTS AND
16
AUTHORITIES IN SUPPORT
Defendants.
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Date: June 9, 2022
18 Time: 3:30 p.m.
19 Dept.: 503

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Doe v. Central California Ear Nose & Throat Medical Group, et al.
Plaintiff’s Motion to Compel Initial Responses to Special Interrogatories
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1 TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD:
2 PLEASE TAKE NOTICE that on June 9, 2022, at 3:30 p.m., or as soon thereafter as
3 counsel may be heard in Department 503 of the Superior Court of the State of California for the
4 County of Fresno, located at 1130 O Street, Fresno, California 93724, Plaintiff Jane Doe
5 (“Plaintiff”) will and hereby does move the Court for an order compelling Defendant Central
6 California Ear Nose & Throat Medical Group (“CCENT”) to provide responses, without
7 objection, to Plaintiff’s Special Interrogatories, Set One.
8 This Motion is made pursuant to California Code of Civil Procedure Section 2030.290 on
9 the grounds that CCENT failed to timely respond to Plaintiff’s Special Interrogatories, Set One,
10 without justification, and has continued to fail to provide Plaintiff with substantially compliant
11 responses.
1999 Harrison Street, 18th Floor

12 This Motion is based upon this Notice of Motion and Motion, the accompanying
EMPLOYMENT LAWYERS

Oakland, CA 94612

13 Memorandum of Points and Authorities, the Declaration of Leonard Emma, and exhibits thereto,
(415) 362-1111

14 the complete file in this action, and such argument and evidence that may be presented prior to or
15 at the hearing on this matter.
16 DATED: May 11, 2022 EMPLOYMENT LAWYERS
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19 ______________________________________
Leonard Emma
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Attorney for Plaintiff
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Doe v. Central California Ear Nose & Throat Medical Group, et al.
Plaintiff’s Motion to Compel Initial Responses to Special Interrogatories
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1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 Plaintiff Jane Doe’s (“Plaintiff”) Motion to Compel Initial Responses from Defendant
4 Central California Ear Nose & Throat Medical Group (“CCENT”), Without Objections, to
5 Plaintiff’s Special Interrogatories, Set One (“Plaintiff’s Special Interrogatories”), should be
6 granted because CCENT failed to timely respond to Plaintiff’s Special Interrogatories.
7 California Code of Civil Procedure Section 2030.290 provides that a party failing to timely
8 respond to interrogatories waives all objections to the requests, including those based on privilege.
9 If a party fails to timely respond, that party must move the Court for an order for relief from
10 waiver of objections and the Court may grant such relief only if the party: (1) subsequently served
11 substantially compliant responses and (2) the party’s failure to serve a timely response was the
1999 Harrison Street, 18th Floor

12 result of mistake, inadvertence, or excusable neglect. Cal. Code Civ. Proc. § 2030.290(a)(1)-(2).
EMPLOYMENT LAWYERS

Oakland, CA 94612

13 CCENT has not moved the Court for an order for relief from waiver of objections. Nor has
(415) 362-1111

14 CCENT served substantially compliant requests. Despite CCENT’s responses to Plaintiff’s
15 Special Interrogatories being due over five months ago, CCENT has refused to provide
16 substantive responses to many of Plaintiff’s Special Interrogatories. For example, CCENT has
17 refused to describe its attempts to accommodate Plaintiff’s disability, its efforts to engage in the
18 interactive process with Plaintiff, to identify witnesses, and to describe its sexual harassment
19 training for its employees. In addition, many of CCENT’s responses to Plaintiff’s Special
20 Interrogatories contain meritless boilerplate objections. Moreover, even if CCENT had
21 subsequently served substantially compliant responses, CCENT cannot establish that its failure
22 to respond timely in the first place was the result of mistake, inadvertence, or excusable neglect.
23 Accordingly, Plaintiff seeks an order that CCENT provide responses to Plaintiff’s Special
24 Interrogatories, without objections, including those to which a privilege may apply.
25 II. STATEMENT OF RELEVANT FACTS
26 A. The Parties
27 Defendant CCENT is an otolaryngological medical practice headquartered in Fresno,
28 California. CCENT is represented by Jason Borchers of Littler Mendelson P.C. Defendant Brien
Doe v. Central California Ear Nose & Throat Medical Group, et al.
Plaintiff’s Motion to Compel Initial Responses to Special Interrogatories
3
1 Tonkinson was a partner and surgeon at CCENT. Defendant Jennifer Tonkinson is Brien
2 Tonkinson’s wife. Defendants Brien and Jennifer Tonkinson are collectively referred to as the
3 “Tonkinsons.” The Tonkinsons are represented by Michael Helsley of Wanger Jones Helsley
4 P.C. Plaintiff was employed by CCENT as Brien Tonkinson’s surgery scheduler. Plaintiff is
5 represented by the undersigned.
6 B. Summary of Allegations in Plaintiff’s Complaint
7 Plaintiff alleges that Brien Tonkinson sexually harassed, sexually assaulted, drugged, and
8 raped her with the aid of his wife, Jennifer Tonkinson. Plaintiff alleges that CCENT ignored and
9 failed to investigate her complaints of workplace harassment. Plaintiff alleges that CCENT
10 discriminated against her for taking disability leave for stress and other medical conditions related
11 to the harassment, assaults, drugging, and rapes. Plaintiff alleges that CCENT unlawfully
1999 Harrison Street, 18th Floor

12 retaliated against her by terminating her employment after she complained about harassment and
EMPLOYMENT LAWYERS

Oakland, CA 94612

13 sought disability leave. (See, generally, Plaintiff’s Complaint.)
(415) 362-1111

14 C. Initial Written Discovery Propounded by Plaintiff to CCENT
15 On October 19, 2021, Plaintiff electronically served Plaintiff’s Initial Written Discovery
16 on CCENT, including (1) Requests for Production of Documents, (2) Special Interrogatories, (3)
17 Form Interrogatories – General, (4) Form Interrogatories – Employment, and (5) Requests for
18 Admissions (“Plaintiff’s Initial Written Discovery”). Plaintiff’s Special Interrogatories contain
19 17 interrogatories and are the subject of the instant motion. (Declaration of Leonard Emma in
20 Support of Plaintiff’s Motions to Compel Initial Responses (“Emma Decl.”) ¶ 2, Exh. A.)
21 CCENT acknowledged receipt of Plaintiff’s Initial Written Discovery on October 20, 2021.
22 (Emma Decl. ¶ 3, Exh. B.)
23 D. CCENT’s Tardy and Deficient Responses to Initial Written Discovery
24 CCENT’s responses to Plaintiff’s Initial Written Discovery were due on or before
25 November 22, 2021. (Emma Decl., ¶ 4.) It was not until November 30, 2021, that CCENT served
26 responses to Plaintiff’s Initial Written Discovery. (Emma Decl. ¶ 5, Exh. D.) CCENT’s tardy
27 responses to Plaintiff’s Special Interrogatories consisted of boilerplate objections only; CCENT’s
28 tardy responses to Plaintiff’s Special Interrogatories contained only one substantive response.
Doe v. Central California Ear Nose & Throat Medical Group, et al.
Plaintiff’s Motion to Compel Initial Responses to Special Interrogatories
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1 (Id.) CCENT did not produce any documents, either. 1 (Id.)
2 E. CCENT Acknowledges Its Responses were Untimely
3 On December 2, 2021, Plaintiff informed CCENT that its responses were untimely, and
4 Plaintiff requested that CCENT provide supplemental responses without objection, as required
5 by CCP 2030.290(a). (Emma Decl. ¶ 7, Exh. G.) On December 6, 2021, CCENT’s counsel
6 acknowledged that its responses were tardy, claimed that his legal assistant mis-calendared the
7 response deadline, and suggested that CCENT’s failure to provide timely responses was somehow
8 exacerbated by another attorney’s medical condition.2 (Emma Decl. ¶ 8, Exh. H.) CCENT did
9 not file a motion for relief from waiver of objections as required by CCP 2030.290(a)(1)-(2).
10 (Emma Decl. ¶ 8.)
11 F. CCENT’s Continued Failure to Provide Compliant Responses
1999 Harrison Street, 18th Floor

12 On December 13, 2021, CCENT served Plaintiff with amended responses to Plaintiff’s
EMPLOYMENT LAWYERS

Oakland, CA 94612

13 Initial Written Discovery, including amended responses to Plaintiff’s Special Interrogatories
(415) 362-1111

14 (“Amended Responses”). (Emma Decl. ¶ 9, Exh. J.) CCENT’s Amended Responses include
15 nearly all the same boilerplate objections as CCENT’s initial responses. (Emma Decl. ¶ 10.)
16 Indeed, many of CCENT’s Amended Responses to Plaintiff’s Special Interrogatories include
17 objections pursuant to the attorney-client privilege and the work product doctrine, despite CCENT
18 not producing a privilege log or providing any facts which would allow Plaintiff to determine if
19 any information or documents are in fact privileged. (Emma Decl. ¶12.) In addition, CCENT
20 has refused to provide a substantive response to many of Plaintiff’s Special Interrogatories, such
21 as those seeking information related to CCENT’s attempts to accommodate Plaintiff’s disability,
22 its efforts to engage in the interactive process with Plaintiff, the identity of witnesses, and its
23 sexual harassment training for its employees, among other things. (Id.)
24 ///
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26 CCENT never requested an extension of time to respond to Plaintiff’s Initial Written Discovery.
To the contrary, CCENT rejected a proposed mutual discovery extension which would have
27 provided CCENT with an additional 30 days to respond to Plaintiff’s Initial Written Discovery.
(Emma Decl. ¶ 6.)
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Plaintiff notes that Mr. Borchers is the only attorney of record for CCENT in this action.
Doe v. Central California Ear Nose & Throat Medical Group, et al.
Plaintiff’s Motion to Compel Initial Responses to Special Interrogatories
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1 G. Plaintiff’s Further Efforts to Obtain Compliant Responses
2 Since CCENT provided its Amended Responses in December 2021, Plaintiff has twice
3 attempted to meet and confer with CCENT before filing this Motion -- first in January 2022 and
4 again in February 2022. (Emma Decl. ¶ 15; Exh. M.) Despite Plaintiff’s efforts to resolve this
5 dispute without Court intervention, CCENT has stood by its tardy objections, refused to provide
6 substantially compliant responses, and refused to file a motion seeking relief from waiver of
7 objections. (Emma Decl. ¶ 16.) It is now May 2022. To date, CCENT has still failed to provide
8 compliant responses and CCENT has still failed to produce a single document in response to
9 Plaintiff’s Initial Written Discovery. (Emma Decl. ¶ 17.)
10 III. ARGUMENT
11 A. CCP § 2030.290 is Controlling
1999 Harrison Street, 18th Floor

12 California Code of Civil Procedure Section 2030.290 provides that a party waives all
EMPLOYMENT LAWYERS

Oakland, CA 94612

13 objections by failing to timely respond to interrogatories, including objections based on privilege
(415) 362-1111

14 and work product. (Cal. Code Civ. Proc. § 2030.290(a); Sinaiko Healthcare Consulting, Inc. v.
15 Pac. Healthcare Consultants (2007) 148 Cal.App.4th 390, 403-404 [“A party that fails to serve a
16 timely response to the discovery request waives ‘any objection’ to the request, ‘including one
17 based on privilege’ or the protection of work product. [Citation omitted.]”.) The deadline to serve
18 responses to interrogatories is 30 days from the date of service, with an additional two days added
19 for electronic service. (Cal. Code Civ. Proc. §§ 2030.260(a), 1010.6(a)(4)(B).)
20 “Unlike a motion to compel further responses, a motion to compel responses [under
21 Section 2030.290] is not subject to a 45-day time limit, and the propounding party does not have
22 to demonstrate either good cause or that it satisfied a ‘meet and confer’ requirement.” (Sinaiko,
23 supra, 148 Cal.App.4th at 404 [emphasis in original].) Once a party has failed to serve timely
24 responses, the propounding party may bring a motion to compel responses regardless of whether
25 a party has served untimely responses. (Id. at 407.) If a party fails to serve a timely response,
26 “then by operation of law, all objections that it could assert to those [requests] are waived.” (Id.
27 at ¶ 408.) “If a party provides an untimely interrogatory response that does not contain objections
28 and that sets forth legally valid responses to each interrogatory, the untimely response might
Doe v. Central California Ear Nose & Throat Medical Group, et al.
Plaintiff’s Motion to Compel Initial Responses to Special Interrogatories
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1 completely or substantially resolve the issues raised by a motion to compel responses under
2 section 2030.290.” (Id. at 408-409.) Accordingly, “[u]nless that party obtains relief from its
3 waiver, the propounding party is entitled to move under subdivision (b) for an order compelling
4 the response to which the propounding party is entitled -- that is, a response without objection
5 …” (Id. at ¶ 408.)
6 B. CCENT Waived Objections by Failing to Serve Timely Responses
7 As set forth above, Plaintiff electronically served CCENT with Plaintiff’s Initial Written
8 Discovery, including Plaintiff’s Special Interrogatories, on October 19, 2022. (Emma Decl. ¶ 2,
9 Exh. A.) CCENT acknowledged receipt of Plaintiff’s Interrogatories on October 20, 2022.
10 (Emma Decl. ¶ 3, Exh. B.) CCENT never requested an extension of time to respond to Plaintiff’s
11 Special Interrogatories. To the contrary, CCENT rejected a proposed mutual discovery extension
1999 Harrison Street, 18th Floor

12 which would have provided CCENT with an additional 30 days to respond to Plaintiff’s Special
EMPLOYMENT LAWYERS

Oakland, CA 94612

13 Interrogatories. (Emma Decl. ¶ 6.) Accordingly, CCENT’s responses were due no later than
(415) 362-1111

14 November 22, 2021. CCENT provided untimely “objection only” responses on November 30,
15 2021. (Emma Decl. ¶ 5, Exh. D.)
16 By operation of law, CCENT was required to provide responses, without objection, unless
17 CCENT successfully moved the Court for relief from waiver of its objections. To date, CCENT
18 has not filed a motion with the Court for an order relieving it from its waiver of its objections as
19 required by Section 2030.290. (Emma Decl. ¶ 16.) Accordingly, Plaintiff is entitled to an order
20 compelling CCENT to provide responses, without objections, to Plaintiff’s Special
21 Interrogatories.
22 C. CCENT Failed to Seek Relief from Waiver of Objections
23 If a party fails to timely respond and wishes to avoid waiver of objections, it must file a
24 noticed motion with the court seeking relief from waiver of objections and establishing that the
25 party has since served substantially compliant responses and that its failure to timely respond
26 “was the result of mistake, inadvertence, or excusable neglect.” (Cal. Code Civ. Proc. §
27 2030.290(a)(1)-(2); Sinaiko, supra, 148 Cal.App.4th at 404; Rutter Guide, Cal. Civ. Proc. Before
28 Trial Ch. 8F at 8:1023 [“A noticed motion for relief from waiver is required. (I.e., such relief
Doe v. Central California Ear Nose & Throat Medical Group, et al.
Plaintiff’s Motion to Compel Initial Responses to Special Interrogatories
7
1 cannot be granted ex parte, or where the only motion pending is a motion to compel.)”] [emphasis
2 in original].)
3 CCENT first served its untimely responses to Plaintiff’s Interrogatories nearly six months
4 ago. (Emma Decl. ¶ 5.) Since serving its untimely responses -- and despite multiple warnings
5 from Plaintiff and attempts to resolve this issue without Court intervention -- CCENT has failed
6 to file a noticed motion with this Court seeking relief from waiver of objections as required by
7 Section 2030.290. Accordingly, CCENT has waived all objections, and the Court may not
8 entertain arguments otherwise as the only motions currently pending are Plaintiff’s motions to
9 compel.
10 IV. CONCLUSION
11 For the reasons set forth above, and others that may be offered at oral argument, Plaintiff
1999 Harrison Street, 18th Floor

12 respectfully requests that the Court grant Plaintiff’s Motions to Compel Initial Responses.
EMPLOYMENT LAWYERS

Oakland, CA 94612

13 DATED: May 11, 2022 EMPLOYMENT LAWYERS
(415) 362-1111

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Leonard Emma
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Attorney for Plaintiff
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Doe v. Central California Ear Nose & Throat Medical Group, et al.
Plaintiff’s Motion to Compel Initial Responses to Special Interrogatories
8

Case Info

Judge

Brickey, Gabriel Track Judge’s New Case

Case No.

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Document Filed Date

May 11, 2022

Case Filing Date

August 16, 2021

County

Parties

Central Calif E N T Medical Gr Defendant
Central California Ear Nose and Throat Defendant
Central California Ear Nose & Throat Medical Group Defendant
Doe, Jane Plaintiff
Tonkinson, Brien, Medical Doctor Defendant
Tonkinson, Jennifer Defendant
Tonkinson, M.D., Brien Defendant
Leonard Emma Attorneys for Plaintiffs
Jason Borchers Attorneys for Defendants
Michael Helsley Attorney
Stephanie Hosman Attorney
Aaron Langenbach Attorneys for Plaintiffs
Jemuel Gascon Attorneys for Defendants

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Party Discovery: Jane Doe vs. Brien Tonkinson, M.D.

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