SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
IVETTE ROSALES, ET AL., Plaintiff(s), vs. NORTHEAST COMMUNITY CLINIC, ET AL., Defendant(s).
CASE NO: BC607569
July 24, 2019
1. Background Facts
Plaintiffs, Ivette Rosales and Donald Brown filed this action against Defendants, Northeast Community Clinic, David N. Steinberg, M.D., and Thomas Cachur, M.D. for medical malpractice arising out of care and treatment that allegedly led to the miscarriage of Plaintiffs’ fetus.
On 5/19/16, the Court heard and granted Defendants’ motion for judgment on the pleadings, finding that, under established California law, Plaintiffs cannot properly assert a claim for wrongful death arising out of the death of a fetus. The Court denied Plaintiffs’ request to amend their complaint to state an individual claim for medical malpractice, finding that the claim would vary from the original complaint in a manner that does not “relate back,” and would therefore be barred by the statute of limitations.
Plaintiff, Ivette Rosales appealed the ruling on the MJP; Donald Brown did not appeal. On 4/05/18, the Court of Appeals reversed. The Court of Appeals held that the complaint was “not a model of clarify” and “muddy,” but held that it could and should have been construed to state a claim for Rosales’s own emotional distress arising out of Defendants’ care and treatment during her pregnancy.
3. Motions to Compel
On 6/12/19, Defendant, Thomas Cachur, D.O. filed these motions to compel. He seeks to compel Plaintiff, Rosales to serve responses to form interrogatories, special interrogatories, and RPDs. He also seeks to compel Plaintiff, Brown to serve responses to form and special interrogatories.
The Court is concerned about the motion as it relates to Brown. Brown did not appeal the order dismissing the case, and the Court of Appeals did not reverse as to Brown. The Court of Appeals specifically stated, “the complaint goes on to muddy the waters considerably by alleging…that plaintiff and the fetus’s father have standing to bring a claim for wrongful death; and by naming the fetus’s father as a plaintiff (when he could not be a plaintiff for medical malpracticed (sic) against the fetus’s mother).” The Court of Appeals also noted, “Plaintiff (but not the fetus’s father) filed a timely notice of appeal.”
Brown appears to be a non-party to the action at this time. Despite this fact, Defendant served discovery on him through Plaintiff’s attorney. Discovery against a non-party cannot be served in this manner. If Defendant believes discovery served on Brown was proper, Defendant must appear at the hearing and articulate the basis for the discovery served. If Defendant does not appear and so establish, the motions to compel directed at Brown will be denied.
The motions to compel directed at Rosales are granted. She is ordered to serve verified responses to form interrogatories, special interrogatories, and RPDs, without objections, within ten days. CCP §§2030.290(a),(b), 2031.300(a),(b).
Sanctions are mandatory. §§2030.290(c), 2031.300(c). Defendant seeks sanctions in the amount of $1160/motion. Defense Counsel bills at the rate of $220/hour. The Court awards one hour to prepare each form motion to compel. No opposition was filed and therefore no reply was necessary. Counsel is located in downtown Los Angeles; the Court therefore awards 1.5 hours of appearance time. The Court awards a total of 4.5 hours of attorney time at the rate of $220/hour, for a total of $990 in attorneys’ fees. The Court also awards three filing fees, or $180 in costs.
Sanctions are sought and imposed against Plaintiff and her attorney of record, jointly and severally; they are ordered to pay sanctions to Defendant, by and through counsel of record, in the total amount of $1170, within twenty days.
Defendant is ordered to give notice.
Temporary Scheduling Change:
1. Parties who wish to be heard on this tentative must send an email to the court at [email protected] confirming possible changes in the date and time of the hearing;
2. Parties who intend to submit on this tentative must send an email to the court at [email protected] indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.
If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.