Chavez v. Normandie/Wilshire Retirement Hotel CA2/5 ( 2024 )

Filed 2/29/24 Chavez v. Normandie/Wilshire Retirement Hotel CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
ARCELIA JIMENEZ CHAVEZ, B316091 consolidated with
et al., B317123
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No.
v. 19STCV06507)
NORMANDIE/WILSHIRE
RETIREMENT HOTEL, INC.,
et al.,
Defendants and
Respondents.
APPEALS from judgments of the Superior Court of the
County of Los Angeles, Steven J. Kleifield, Judge. Affirmed.
Law Offices of Robert Scott Shtofman, Robert Scott
Shtofman, Law Offices of Jose Perez, Jose Perez, for Plaintiffs
and Appellants.
Clark Hill, Richard H. Nakamura Jr., Marc S. Katz, and
Sue S. Junn, for Defendants and Respondents
Normandie/Wilshire Retirement Hotel, Inc., dba California
Healthcare & Rehabilitation Center and Longwood Management
Corp.
Prindle, Goetz, Barnes & Reinholtz, Jack R. Reinholtz and
Cynthia A. Palin, for Defendant and Respondent Muhammad
Anwar.
_________________________________________
I. INTRODUCTION
The trial court granted defendants’1 motions for
terminating sanctions based on plaintiffs’2 failure to comply with
the court’s orders compelling responses to written discovery. On
appeal, plaintiffs challenge the sufficiency of the evidence
1 Defendants are Dr. Muhammad Anwar (Dr. Anwar) and
two corporations, Normandie/Wilshire Retirement Hotel, Inc.,
(Normandie/Wilshire) and Longwood Management Corp.
(Longwood). According to the complaint, Normandie/Wilshire
was a “24-hour skilled nursing facility” that was owned, operated,
and managed by Longwood. Except when clarity requires
separate reference to these two entities, they will be referred to
collectively as Normandie.
2 Plaintiffs are four individuals—Arcelia Jimenez Chavez,
Alicia, Antonio, and Guadalupe Jimenez (individual plaintiffs)—
and the estate of Jose Maria Jimenez and Jose Maria Jimenez,
individually, by and through his successor-in-interest, Arcelia
Jimenez Chavez (estate plaintiffs). When necessary for clarity,
we will refer to all the individual plaintiffs by their first names.
We will refer to the decedent as Jimenez.
2
supporting the court’s findings and raise multiple claims of abuse
of discretion. We affirm.
II. PROCEDURAL BACKGROUND
A. Pleadings
On December 14, 2018, Jimenez was suffering from
dementia and other age-related illnesses. That day, while under
the care and supervision of Normandie/Wilshire’s facility in Van
Nuys, Jimenez wandered off the premises and was found dead
four days later.
On February 26, 2019, plaintiffs filed a complaint against
Normandie, asserting six causes of action for: elder abuse (Welf.
& Inst. Code, § 15600 et seq.); negligence; negligent hiring;
violation of residents’ rights (Health & Saf. Code, § 1430, subd.
(b)); wrongful death; and survivorship. The 128-paragraph
pleading alleged, among other things, violations of multiple state
and federal regulations governing skilled nursing facilities.
Normandie filed an April 2, 2019, petition to compel
arbitration, but following plaintiffs’ opposition, withdrew its
petition on September 17, 2019. October 17, 2019, Normandie
demurred and moved to strike the complaint.
On December 16, 2019, plaintiffs filed an amendment to
their complaint adding Dr. Anwar as a defendant. He answered
on January 24, 2020, with a trial date then scheduled for
October 26, 2020.3
3 On July 24, 2020, Dr. Anwar filed an ex parte application
to continue the trial date. Over plaintiffs’ objection about the
3
The trial court ruled on Normandie’s demurrer and motion
to strike on February 28, 2020. On May 19, 2020, Normandie
answered the complaint.
B. Dr. Anwar’s Written Discovery
1. First Round
On January 24, 2020, Dr. Anwar served each plaintiff with:
(1) a set of special interrogatories comprised of seven contention
interrogatories seeking the facts supporting their claims of elder
abuse, negligence, and violation of “resident[’s] rights,” as well as
the identities of persons with knowledge of those facts; (2) a set of
form interrogatories seeking general background information
about each plaintiff, information about plaintiffs’ investigation of
the incident, and information concerning any alleged statutory
violations; and (3) a set of document demands.
2. Second Round
On April 2, 2020, Dr. Anwar served Alicia with a second set
of special interrogatories comprised of three questions seeking
the identities of any health care facilities or hospitals where
Jimenez resided prior to September 2017.
length of the requested continuance, the trial court granted the
application and continued trial until June 21, 2021.
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3. Dr. Anwar’s Motions to Compel
After requesting and receiving two extensions of time,
plaintiffs agreed to provide responses to Dr. Anwar’s first round
of written discovery by April 24, 2020. When plaintiffs failed to
respond by that date, Dr. Anwar filed three motions to compel
responses. Plaintiffs did not oppose the motions or seek a
protective order limiting their response obligations.
On May 26, 2020, after Alicia failed to respond to his
second set of special interrogatories, Dr. Anwar sent her a letter
demanding responses. When Alicia failed to respond, Dr. Anwar
filed his fourth motion to compel responses. Alicia did not oppose
the motion or seek a protective order limiting her response
obligations.
4. Orders Compelling Reponses and Awarding
Sanctions
On August 4, 2020, the trial court held a hearing on Dr.
Anwar’s fourth motion to compel responses to the second set of
special interrogatories. There were no appearances by either
side. The court granted the motion, ordered responses to be
served within 30 days, or on or before September 3, 2020, and
imposed $760 in sanctions against Alicia, payable within 30 days.
On September 22, 2020, the trial court held a hearing on
Dr. Anwar’s three motions to compel responses to his first round
of written discovery. Dr. Anwar appeared at the hearing, but
plaintiffs did not. The court granted each motion, ordered
responses to be served by October 12, 2020, and imposed
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sanctions against all plaintiffs in the amount of $965 on each
motion, for a total of $2,895, payable within 20 days.
One month later, on October 22, 2020, Dr. Anwar sent
plaintiffs a letter demanding compliance with the trial court’s
orders compelling responses and imposing sanctions by
November 5, 2020. Plaintiffs did not respond to the demand.
5. Dr. Anwar’s Terminating Sanctions Motion
On November 16, 2020, Dr. Anwar filed a motion for
terminating sanctions, with the hearing scheduled for
March 17, 2021. The motion sought terminating or other
sanctions based on plaintiffs’ willful disobedience of the trial
court’s four orders compelling plaintiffs to respond to Dr. Anwar’s
first and second rounds of written discovery. As of the date of the
motion, plaintiffs had not served any responses to his written
discovery and had not paid any of the sanctions awarded by the
court.
a. Ex Parte Application
On March 16, 2021—one day before the hearing on Dr.
Anwar’s motion for terminating sanctions—plaintiffs filed an ex
parte application for relief under Code of Civil Procedure section
473, subdivision (b)4 and leave to file a late opposition. According
to plaintiffs’ counsel, they were never served with the motion.
Plaintiffs’ counsel also represented that he and his co-counsel had
4 All further statutory references are to the Code of Civil
Procedure.
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completed plaintiffs’ discovery responses and that they would be
served “by the time of the [March 17, 2021,] hearing.”
At the March 17, 2021, hearing, the trial court granted
plaintiffs’ ex parte application, continued the hearing to
May 6, 2021, and granted plaintiffs leave to file their opposition.
b. Partial Responses
On March 17, 2021, the individual plaintiffs5 served
verified responses to Dr. Anwar’s first set of form interrogatories.
On March 20, 2021, three of the individual plaintiffs,
Antonio, Guadalupe, and Arcelia, served verified responses to Dr.
Anwar’s first set of special interrogatories.
On April 29, 2021, Alicia served verified responses to Dr.
Anwar’s first set of document demands.
As of May 4, 2021: (1) the estate plaintiffs had not served
any responses to Dr. Anwar’s first set of form interrogatories;
(2) Alicia and the estate had not responded to his first set of
special interrogatories; (3) other than Alicia, no plaintiff had
served responses to his first set of document demands; (4) Alicia
had not responded to the order compelling responses to Dr.
Anwar’s second set of special interrogatories; (5) no plaintiff had
responded to the order requiring production of prior pleadings
and discovery; and, (6) no sanctions had been paid by any
plaintiff.
5 Arcelia served responses that were not verified.
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c. Third and Fourth Rounds
On March 26, 2021, Dr. Anwar served Alicia with a third
set, and the other three individual plaintiffs with a second set, of
special interrogatories concerning six witnesses identified in
plaintiffs’ discovery responses, seeking the relationship of each
witness to Jimenez and the information each witness knew about
the claims in the complaint. Although responses to this discovery
were due by April 30, 2021, plaintiffs failed to respond to it or
seek a protective order limiting their response obligations.
On April 5, 2021, Dr. Anwar served Alicia with a fourth set,
and the other three individual plaintiffs with a third set, of
special interrogatories seeking personal identifying information
about certain heirs of Jimenez who were omitted as parties to the
complaint. On May 7, 2021, plaintiffs served objections to this
discovery asserting that the information sought was irrelevant
and did not provide any substantive responses.
C. Normandie’s Discovery
1. Normandie/Wilshire’s Discovery to All Plaintiffs
On May 26, 2020, Normandie/Wilshire served its first
round of written discovery on each plaintiff, including form and
special interrogatories and requests for documents seeking,
among other things, basic information about the facts, witnesses,
and documents supporting plaintiffs’ claims.
Plaintiffs’ responses to Normandie/Wilshire’s first round of
written discovery were due on June 30, 2020. Plaintiffs
requested and received two extensions of time, resulting in their
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responses being due July 16, 2020. Plaintiffs, however, did not
serve responses by that date or request a further extension.
On August 4, 2020, Normandie/Wilshire demanded
compliance with its written discovery without objection by
August 18, 2020. Plaintiffs did not respond to the demand or
serve responses as of October 6, 2020, and they did not seek a
protective order limiting their response obligations.
2. Longwood’s Discovery to the Estate Plaintiffs
On May 26, 2020, Longwood served a first set of special
interrogatories and first set of document demands on estate
plaintiffs. Responses were due June 30, 2020.
Plaintiffs requested and received two extensions of time to
respond to Longwood’s discovery. Although their responses were
due by July 16, 2020, plaintiffs failed to serve them or request
further extensions of time. On August 4, 2020, Longwood
demanded responses no later than August 18, 2020. Plaintiffs
did not respond to the demand or serve responses as of
October 6, 2020, or seek a protective order limiting their response
obligations.
3. Normandie’s Motions to Compel
On October 19, 2020, Normandie filed four motions to
compel further responses to: (1) Normandie/Wilshire’s first set of
document demands; (2) Longwood’s first set of special
interrogatories; (3) Normandie/Wilshire’s form and first set of
special interrogatories; and (4) Longwood’s first set of document
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demands. Plaintiffs did not file oppositions or seek a protective
order.
4. Orders Compelling Responses and Imposing
Sanctions
On February 10, 2021, the trial court held a hearing on
Normandie’s motions to compel. The parties appeared
telephonically. The court granted all four motions, ordered
plaintiffs to provide verified responses without objection by
March 1, 2021, and imposed sanctions in the amount of $500 per
motion, for a total of $2,000.
When plaintiffs did not comply with the trial court’s orders
compelling responses and imposing sanctions by the
March 1, 2021, deadline, Normandie sent plaintiffs a
March 16, 2021, letter advising that it would be filing a motion
for terminating sanctions.
On March 19, 2021, plaintiffs served their responses to
Normandie/Wilshire’s first set of form interrogatories. They did
not, however, serve responses to Normandie/Wilshire’s first set of
special interrogatories and first set of document demands; and,
the estate plaintiffs did not serve any responses to Longwood’s
outstanding written discovery.
5. Normandie’s Terminating Sanctions Motion
On March 22, 2021, Normandie filed a motion for
terminating or other sanctions pursuant to sections 2023.010 and
2030.290. According to Normandie, plaintiffs had willfully failed
to respond to written discovery that had been propounded over
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10 months earlier, despite court orders compelling responses and
imposing sanctions. Because trial was scheduled to commence in
less than 90 days, and Normandie had not received responses to
basic contention discovery requests first served in May 2020, it
maintained that plaintiffs’ discovery abuses had prejudiced its
trial preparations, including its “ability to evaluate th[e] case
[and] retain experts . . . .” In addition, Normandie argued that
any late responses that may be served would require additional
time to evaluate and follow-up discovery.
Plaintiffs’ opposition to Normandie’s terminating sanctions
motion was due April 23, 2021, but they did not file or serve an
opposition by that date. Instead, on April 30, 2021, the
individual plaintiffs served responses to Normandie/Wilshire’s
first set of document demands; on May 2, 2021, the estate
plaintiffs served responses to Normandie/Wilshire’s first set of
document demands; and, on May 3, 2021, the estate plaintiffs
served responses to Longwood’s first set of document demands.
Plaintiffs did not, however, serve any responses to
Normandie/Wilshire’s first set of special interrogatories and the
estate plaintiffs did not serve responses to Longwood’s first set of
special interrogatories.
D. Proceedings on Consolidated Sanctions Motions
1. Ex Parte Application re: Late Opposition
On May 5, 2021—the day before the hearing on the
terminating sanctions motions—plaintiffs applied ex parte for
leave to file a late opposition to Normandie’s motion. According
to plaintiffs, they had answered all of Dr. Anwar’s written
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discovery and all of Normandie’s written discovery, with the
exception of the two sets of special interrogatories propounded by
those defendants, responses to which would be served “within the
next 24 hours . . . .” Plaintiffs’ counsel also complained that he
had been required to: respond to summary judgment motions in
an unrelated matter; brief and argue an unrelated appeal; and
cope with the COVID-19 infections of two family members.
2. Consolidated Opposition
On May 5, 2021, plaintiffs also filed a consolidated
opposition to the separate motions of Dr. Anwar and Normandie
for terminating sanctions. They contended that: (1) they had
substantially complied with their written discovery obligations by
responding to 18 of the 20 sets of outstanding discovery
propounded by defendants; (2) the purpose of sanctions, to
achieve compliance with discovery obligations, would not be
served by the requested terminating sanctions orders; (3) they
should not be punished for the acts or omissions of their
attorneys; (4) the requested orders were contrary to the public
policy favoring resolution of disputes on their merits; and
(5) defendants had not been prejudiced by the delay in
responding to discovery. Plaintiffs did not propose a specific
lesser sanction or request a continuance of the trial date.
3. Ruling on Application
At the May 6, 2021, hearing on the terminating sanctions
motions, the trial court, noting the drastic nature of the
requested terminating sanctions orders, granted plaintiffs’ ex
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parte application, deemed plaintiffs’ consolidated opposition filed
as of that date, and continued the hearing on the sanctions
motions to May 19, 2021. The court also ordered defendants to
file their replies by May 12, 2021, and granted them leave to
address whether they would be prejudiced if the court did not
grant terminating sanctions.
4. Replies
On May 11, 2021, Normandie filed its reply listing the
written discovery subject to the trial court’s orders to which
plaintiffs had not yet responded, including five sets of special
interrogatories propounded by Normandie/Wilshire to the estate
plaintiffs and the four individual plaintiffs and one set
propounded by Longwood to the estate plaintiffs. Normandie
argued that a lesser sanction was not warranted as plaintiffs’
discovery abuses were willful and it been prejudiced by plaintiffs’
delays in responding to discovery in that: (1) it did not have the
basic facts, witnesses, and documents it first sought in May 2020
concerning plaintiffs’ claims of negligence and recklessness; and,
(2) with the discovery cutoff now only days away and trial only a
month beyond that, there would be no time to conduct follow-up
discovery or to subpoena nonparty witnesses for deposition and to
produce documents for inspection.
Dr. Anwar filed his reply on May 12, 2021, detailing the
significant amount of outstanding written discovery to which
plaintiffs had not yet responded. Dr. Anwar also argued that he
had been prejudiced by plaintiffs’ conduct in failing to respond to
discovery, including their failure to answer questions about
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Jimenez’s prior hospitalizations, his medical history, and
unnamed heirs.
5. Further Responses
On May 17, 2021, plaintiffs provided responses to Dr.
Anwar’s request for prior pleadings/discovery and the estate
plaintiffs responded to set one of his special interrogatories and
set one of his document demands. The next day, Alicia and the
estate plaintiffs provided responses to Dr. Anwar’s first set of
form interrogatories. But, as of May 19, 2021, plaintiffs Arcelia,
Antonio, and Guadalupe had not responded to his first set of
requests for production of documents. And, plaintiffs had
provided no responses to Dr. Anwar’s third round of written
discovery.
6. May 19, 2021, Hearing
On May 19, 2021, the trial court held a hearing on the
consolidated sanctions motions. At three different points during
the hearing, plaintiffs suggested that a continuance would be
appropriate, but the trial court did not expressly respond.
Following argument, the trial court entered its order
granting the motions. It noted that, due to plaintiffs’ “clear
violation” of its orders, defendants were required to “wait[ ] for
the responses to basic discovery for over a year” and that with
trial set for June 21, 2021, and a discovery cutoff of May 21, 2021,
“there [was] no opportunity for the typical follow-up discovery.”
The court also observed that plaintiffs provided “no explanation
in the late-filed opposition as to why [they] did not comply with
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the Court’s three discovery orders. These orders were not idle
acts. Defendants were entitled to basic information regarding
the facts, evidence, and contentions of [p]laintiffs.”
The trial court then detailed the prejudice defendants had
suffered as a result of plaintiffs’ noncompliance with their
discovery obligations and court orders, including information
about late-disclosed witnesses and unserved heirs which could
result in defendants being “surprised at trial, which defeats the
whole purpose of the [Civil] Discovery Act.[6]” The court also
noted that a further continuance would have a detrimental effect
on Dr. Anwar’s practice.
The trial court concluded that “[n]o justification has been
shown for the violation of three court orders. Plaintiffs have
misused the discovery process. The Court must necessarily
conclude that the egregious violations were willful. Had there
been compliance with the court orders, [d]efendants would have
no reason for complaint. They have been prejudiced by the delay.
[¶] A lesser sanction would not suffice. Any lesser sanction
would require another continuance of the trial. The Court will
not do so.”
6 Section 2016.010 (Civil Discovery Act).
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E. Judgments and Appeals7
On July 21, 2021, the trial court entered judgment in favor
of Normandie. On September 27, 2021, plaintiff filed a notice of
appeal from that judgment, case number B316091.
On September 3, 2021, the trial court entered judgment in
favor of Dr. Anwar. On November 1, 2021, plaintiffs filed a notice
of appeal from that judgment, case number B317123.
Based on plaintiffs’ motion, we ordered the two appeals
consolidated for briefing, argument, and decision.8
III. DISCUSSION
A. Standard of Review
In reviewing a trial court’s order granting terminating
sanctions, “[w]e accept the trial court’s factual determinations
concerning misconduct if they are supported by substantial
7 Plaintiffs filed three post-trial motions―for reconsideration,
for new trial, and to vacate―that were either denied or not
expressly ruled upon. Plaintiffs waived any contentions on
appeal concerning those motions by either failing to brief or brief
adequately those contentions. (Shaw v. Hughes Aircraft Co.
(2000) 83 Cal.App.4th 1336, 1345; In re Marriage of Falcone &
Fyke (2012) 203 Cal.App.4th 964, 1004.)
8 Dr. Anwar’s motion to augment the record to include a copy
of Exhibit 2 to that motion is denied. The document, a notice of
the court-ordered limited scope of the original deposition of Dr.
Anwar, was not designated and is not necessary to our
disposition of the consolidated appeals.
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evidence. [Citation.] We review the order to issue a terminating
sanction based on those factual findings for abuse of discretion.
[Citation.]” (Osborne v. Todd Farm Service (2016) 247
Cal.App.4th 43, 51.)
B. Applicable Law
“‘“The power to impose discovery sanctions is a broad
discretion . . . .”’ [Citation.] The trial court may order a
terminating sanction for discovery abuse ‘after considering the
totality of the circumstances: [the] conduct of the party to
determine if the actions were willful; the detriment to the
propounding party; and the number of formal and informal
attempts to obtain the discovery.’ [Citation.] Generally, ‘[a]
decision to order terminating sanctions should not be made
lightly. But where a violation is willful, preceded by a history of
abuse, and the evidence shows that less severe sanctions would
not produce compliance with the discovery rules, the trial court is
justified in imposing the ultimate sanction.’ [Citation.] Under
this standard, trial courts have properly imposed terminating
sanctions when parties have willfully disobeyed one or more
discovery orders. [Citation.]” (Los Defensores, Inc. v. Gomez
(2014) 223 Cal.App.4th 377, 390.)
“The question before us ‘“is not whether the trial court
should have imposed a lesser sanction; rather, the question is
whether the trial court abused its discretion by imposing the
sanction it chose.”’” (Liberty Mutual Fire Ins. Co. v. LcL
Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1105 (Liberty
Mutual).)
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C. Analysis
Plaintiffs contend that the judgments should be reversed
based on 11 “compelling” reasons, some of which appear to be
raised for the first time on appeal. For purposes of our review,
their contentions can be grouped into two general categories of
trial court error: findings unsupported by the evidence and
abuses of discretion. We address each contention below.
1. Substantial Evidence
a. Finding of Discovery Abuse
Plaintiffs argue that “the trial court’s finding of discovery
abuse warranting terminating sanctions” was not supported by
substantial evidence. According to plaintiffs, their obligation to
respond to all written discovery did not arise until the court
ordered them to respond to Normandie’s discovery by
March 1, 2021. Thus, in their view, because they began providing
responses only 18 days later, their violations of the court’s orders
were not egregious enough to warrant terminating sanctions. We
reject plaintiffs’ characterization of the evidence concerning their
discovery misconduct.
As to Dr. Anwar, he first sought discovery in January and
April 2020, well over a year before plaintiffs first began to
respond to it. When plaintiffs failed to respond to the discovery
as agreed, he made informal attempts to obtain compliance and
was then required to move to compel responses. The trial court
ordered responses to that discovery on August 4, 2020, and
September 22, 2020. Responses were due under those orders no
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later than September 4, 2020, and October 13, 2020. But
plaintiffs did not begin to provide any responses until the eve of
the March 17, 2021, hearing on Dr. Anwar’s terminating
sanctions motion, months after they were due by order and only
60 days before the May 21, 2021, discovery cutoff. And, plaintiffs
did not fully comply with the court’s orders until the eve of the
May 19, 2021, hearing with only two days left before the
discovery cutoff. Those facts were more than sufficient to support
the finding of discovery abuse as to Dr. Anwar’s discovery.
Normandie first sought discovery from plaintiffs in May
2020, almost ten months before plaintiffs began providing
responses to it. Plaintiffs sought and obtained by agreement two
extensions of time to respond, but they then failed to comply with
the agreed-upon July 16, 2020, due date. Normandie then
demanded responses by August 18, 2020. When that date passed
without compliance, Normandie was forced to file four motions to
compel on October 19, 2020.
Seven months after plaintiffs originally agreed to provide
responses, the trial court granted Normandie’s motions to compel
and ordered responses by March 1, 2021; yet plaintiffs failed to
comply by that date. It was only after Normandie’s
March 16, 2021, threat to file its terminating sanctions motion
that plaintiffs belatedly began the piecemeal process of
compliance, providing responses to Normandie/Wilshire’s first set
of form interrogatories only on March 19, 2021; and they had not
fully complied with the court’s orders as of the May 19, 2021,
hearing. That evidence was sufficient to support the court’s
finding that plaintiffs had engaged in discovery abuse by failing
to comply with its orders on Normandie’s discovery.
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b. Finding of Willfulness
Plaintiffs next argue that there was “no substantial
evidence presented that [their] violation of the trial court’s orders
was ‘willful.’” According to plaintiffs, “the sheer number of
interrogatories and document requests propounded by
[defendants], which in and of themselves required greater than
19 days to properly respond to, along with other factors, including
those caused by [defendants’] unmistakable ‘tactics’, made it
impossible to comply with the court’s February 10, 2021[,] order
to complete [defendants’] discovery in 19 days.”
As we have discussed above, plaintiffs had over a year, and
not 19 days, to respond to discovery demands. Moreover, “‘[a]
willful failure does not necessarily include a wrongful intention to
disobey discovery rules. A conscious or intentional failure to act,
as distinguished from accidental or involuntary noncompliance, is
sufficient to invoke a penalty. [Citation].’” (Sauer v. Superior
Court (1987) 195 Cal.App.3d 213, 227–228.)
The evidence before the trial court demonstrated that
(1) plaintiffs originally asked for, and received, two extensions of
time to respond to each defendant’s discovery, but they then
knowingly failed to abide by their agreement; (2) they then had
several additional months from the date they originally agreed to
provide responses and the hearings on the motions to compel to
prepare them; (3) during that time, they did not seek agreements
to limit or consolidate the amount of responses required or seek a
protective order to that effect; (4) they were aware of the court-
ordered deadlines at or about the time they were set; (5) yet they
only began to provide responses after the court-ordered deadlines
had passed and they were facing motions for terminating
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sanctions which they had not timely opposed; and (6) they had
not fully complied with the obligations imposed by the court’s
orders by the time of the May 19, 2021, hearing. When viewed in
a light most favorable to the court’s finding, that evidence was
sufficient to show that their violations were willful rather than
accidental or involuntary.
c. Finding of Failure to Comply
Plaintiffs maintain that “there was no substantial evidence
presented that [plaintiffs] ‘failed’ to answer [defendants’]
discovery.” In their view, by the time of the May 19, 2021,
hearing, they had responded to most, if not all, of the discovery
subject to the trial court’s orders. In light of that belated
compliance, plaintiffs conclude that the terminating sanctions
were in excess of what was required to achieve compliance with
the court’s previous orders.
Contrary to plaintiffs’ assertion, there was evidence
showing that, as of the May 19, 2021, hearing date, plaintiffs had
not responded fully to Normandie’s discovery, including its first
sets of special interrogatories to each of the individual plaintiffs.
And, as to Dr. Anwar’s discovery, three individual plaintiffs had
not yet responded to his first sets of document demands. More
importantly, the court did not, as plaintiffs seem to suggest,
grant the motions on the grounds that plaintiffs had not complied
with its orders by the time of the May 19, 2021, hearing. Instead,
the court found that “[d]efendants waited for the responses to
basic discovery for over a year” and, given the timing of the
delayed responses, “there [was] no opportunity for the typical
follow-up discovery.” As a result, “[d]efendants did not have the
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benefit of timely discovery responses [to basic contention
discovery] so that they could prepare their defenses.” And, as to
those findings, there was substantial evidence to support them,
as detailed above.
2. Finding of Prejudice
Plaintiffs contend that there was insufficient evidence in
the moving papers to support a finding of prejudice and that the
evidence of prejudice in defendants’ replies9 was “simply . . . not
credible.” According to plaintiffs, despite Normandie’s claims to
the contrary, there was time for it to conduct follow-up discovery;
and Dr. Anwar’s assertions of prejudice from the lack of
information on its omitted heirs theory was not credible because
the statute of limitations on the omitted heirs’ claims had run.
As to Normandie, there was evidence supporting an
inference that the responses to its basic contention discovery
were served too late to allow for typical follow-up discovery. The
complaint contained multiple allegations against Normandie of
9 To the extent plaintiffs contend that the trial court’s order
allowing further evidence of prejudice in reply was an abuse of
discretion, we disagree. The court made its order in response to
plaintiffs’ request to file a late opposition. To accommodate that
request, the court was required to continue the May 6, 2021,
hearing on the terminating sanctions motions to allow time for
replies. By that date, Dr. Anwar’s motion had been pending since
November 2020 and Normandie’s had been pending since
March 2, 2021, and plaintiffs had begun serving their responses.
It was therefore reasonable to allow defendants to address
prejudice in light of the belated responses they had received and
the pending May 21, 2021, discovery cutoff.
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negligence, recklessness, and violations of state and federal
regulations governing skilled nursing facilities. Normandie
focused much of its initial round of discovery on those issues, and
it was undisputed that plaintiffs did not deliver the bulk of their
responses to that discovery until the eve of the May 6, 2021,
hearing date, and other responses were not received until the
May 19, 2021, continued hearing date. It was also undisputed
that the discovery cutoff for the June 21, 2021, trial was
May 21, 2021. Given that timing, it was reasonable for the trial
court to draw an inference of prejudice. Under the timeframes
imposed by the Civil Discovery Act, Normandie could not
propound follow-up written discovery to plaintiffs or subpoena
third parties for documents or depositions, absent a trial
continuance and extension of the discovery cutoff. The court’s
prejudice findings as to Normandie were therefore well supported
by the record.
As to Dr. Anwar, his second round of written discovery
sought information about Jimenez’s prior medical history and the
facilities and hospitals to which he was admitted prior to his
admission to Normandie/Wilshire. Despite an August 2020 court
order requiring them, responses to these foundational inquiries
were not received until days before the discovery cutoff. Thus,
Dr. Anwar’s defense to the professional negligence claims was
prejudiced because there was no time to follow-up on or test the
sufficiency of the information provided. Dr. Anwar also did not
receive information about six witnesses that were belatedly
identified by plaintiffs two months prior to the discovery cutoff.
And, when he attempted to conduct follow-up written discovery
concerning the location and relationship of those witnesses,
plaintiffs either refused to respond or objected. That evidence
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supported an inference that plaintiffs’ failure to timely comply
with the trial court’s August and September 2020 orders
prevented Dr. Anwar from conducting follow-up discovery. The
court’s prejudice finding as to Dr. Anwar was therefore supported
by the record.
3. Abuses of Discretion
a. Refusal to Consider Evidence
Plaintiffs contend that the trial court abused its discretion
when it struck their second notice of lodgment containing
plaintiffs’ further responses to certain of Dr. Anwar’s outstanding
discovery. We disagree.
In a footnote to its order granting the terminating
sanctions motion, the trial court noted that plaintiffs had filed, on
the day before the hearing, a second notice of lodgment that
appeared to include “additional responses to discovery.” The
court explained that because plaintiffs “were not granted leave to
file any additional pleadings,” the notice and lodgment were
“stricken.” The court added, however, that “[t]his late filing, even
if considered, would not change the reasoning or result.”
The record of the hearing on the motions does not support
plaintiffs’ assertion that the trial court failed to consider their
late-filed responses when evaluating their excuses for delayed
compliance. As noted above, the timing and substance of
plaintiffs’ last-minute responses to Dr. Anwar’s discovery were
not disputed issues in the parties’ submissions or at the hearing.
In any event, the court expressly stated that a consideration of
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the filing would not change the result of its ruling. Therefore,
plaintiffs cannot show prejudice.
In addition to the stricken responses, plaintiffs suggest that
the trial court did not consider their other evidence on the
justification issue, including evidence of: the volume of discovery
responses involved in compliance; the two summary judgment
motions filed by defendants; the two summary judgment motions
filed in an unrelated matter and the appeal in another unrelated
matter; the expert consultation required to respond to certain of
the discovery; and the additional time required by the COVID-19
infections of two of counsel’s family members. Contrary to
plaintiffs’ assertion, there is nothing in the record to suggest that
the court did not consider plaintiffs’ evidence and arguments on
these issues. And, we presume the court properly exercised its
discretion in light of those matters, absent an affirmative
showing to the contrary by plaintiffs. (See Landry v. Barryessa
Union School Dist. (1995) 39 Cal.App.4th 691, 698 [“We must
presume the trial court’s order was correct, and it is the plaintiff’s
burden to overcome that presumption and establish a clear abuse
of discretion. [Citations.]”].)
b. Reliance on Impermissible Factors
As to the judgment in favor of Dr. Anwar only, plaintiffs
argue that the trial court considered “matters outside the
permissible scope of its discretion.” (Emphasis omitted.)
According to plaintiffs, “the trial court placed special importance
on the personal concerns of [Dr. Anwar] as related to his
occupation as a medical doctor.”
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In its discussion of prejudice, the trial court considered the
impact a continued trial date would have on Dr. Anwar’s practice:
“One additional item of prejudice. Dr. Anwar is board-certified in
pulmonary and critical care medicine[] and has been responsible
for caring for and treating critically ill and ventilator dependent
COVID-19 patients. A further continuance will cause further
litigation burden. Additionally, as noted in his reply, Dr. Anwar
must disclose this lawsuit when he seeks to renew his hospital
privileges and professional negligence insurance policies.”
Although plaintiffs maintain that the burden imposed on
Dr. Anwar’s practice was a matter outside the scope of
permissible factors that a court may consider when determining
prejudice, they cite no authority for that proposition. Moreover, a
court may issue a terminating sanction, but only “‘after
considering the totality of the circumstances,’” including “‘the
detriment to the propounding party . . . .’” (Creed-21 v. City of
Wildomar (2017) 18 Cal.App.5th 690, 702.) Thus, the court did
not abuse its discretion by considering the detrimental effect of a
continuance on one of the propounding parties who would be
directly impacted by the delay.
c. Failure to Adhere to Established Law
Plaintiffs also contend that the trial court abused its
discretion by failing to adhere to the established legal principles
governing the issuance of terminating sanctions. According to
plaintiffs, the court deviated from three of those principles by
(1) issuing sanctions that were disproportional to the harm
caused by their discovery abuse; (2) putting defendants in a
better position than they would have been if they had the full
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benefit of plaintiffs’ compliance with the court’s orders; and
(3) failing to follow an incremental approach to sanctions,
“starting with monetary sanctions and ending with the ultimate
sanction of termination.”
As an initial matter, the trial court followed an incremental
approach to sanctions when it first imposed substantial monetary
sanctions against all plaintiffs for their noncompliance with the
basic discovery obligations imposed by the Civil Discovery Act.
But that approach proved ineffective, as plaintiffs refused to
timely comply with the orders mandating responses. It was not
until defendants had filed terminating sanctions motions and the
hearings were imminent that plaintiffs began their compliance
efforts.
Moreover, as explained above, although a decision to issue
terminating sanctions should not be made lightly, they can be
warranted where a party has a history of discovery abuse, has
willfully violated a court order compelling discovery, and there is
evidence showing that a lesser sanction would not suffice. In
such circumstances, the court has broad discretion to determine
whether a lesser sanction would suffice to remedy the harm
caused by the flaunting of the court’s orders or whether
terminating sanctions are warranted. (See § 2030.290, subd. (c)
[“If a party then fails to obey an order compelling answers, the
court may make those orders that are just, including the
imposition of an issue sanction, an evidence sanction, or a
terminating sanction . . .”]; Liberty Mutual, supra, 163
Cal.App.4th at p. 1102 [“‘“In choosing among its various options
for imposing a discovery sanction, a trial court exercises
discretion, subject to reversal only for manifest abuse exceeding
the bounds of reason”’; . . . ‘“‘[o]nly two facts are absolutely
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prerequisite to imposition of the sanction: (1) there must be a
failure to comply . . . and (2) the failure must be willful . . .’”’”].)
Here, as detailed above, it was undisputed that plaintiffs
violated the trial court’s discovery orders and there was
substantial evidence supporting the court’s finding that the
violations were willful. There was also substantial evidence
supporting the court’s finding that imposition of a lesser sanction
would not suffice to remedy the harm cause by plaintiffs’
noncompliance. Plaintiffs ignored the monetary sanctions
imposed against them and refused to provide responses until the
last minute, despite court orders compelling them and pending
motions seeking termination of the action. The responses were
then provided in piecemeal fashion, with many being delivered
just before the discovery cutoff and just over a month from the
trial date. With no time for further discovery, defendants were
facing trial without the benefit of responses to basic contention
discovery and other information derived from follow-up
investigation and discovery. As the court noted, they were thus
subject to being surprised at trial by evidence they would be
unprepared to meet. The court also implicitly rejected at oral
argument plaintiffs’ suggestion of a trial continuance,
determining instead that a further continuance was not
warranted and would be detrimental to Dr. Anwar. And,
plaintiffs did not urge the court to consider lesser sanctions, or
request that the court impose the sanctions only against certain
plaintiffs or only in favor of certain defendants, choosing instead
to maintain that no sanctions were warranted. Accordingly, the
court’s choice of terminating sanctions was supported by the
record and was thus not beyond the bounds of reason. (Doppes v.
Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992, fn. omitted
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[“‘where a violation is willful, preceded by a history of abuse, and
the evidence shows that less severe sanctions would not produce
compliance with the discovery rules, the trial court is justified in
imposing the ultimate sanction’”].)
d. Issues not Raised Below
Plaintiffs raise three additional arguments, which they
describe as “compelling reasons” for why the terminating
sanctions order must be vacated. First, they claim that
defendants, such as Longwood, were not entitled to rely on
discovery orders obtained by other defendants, such as Dr. Anwar
or Normandie/Wilshire, as the basis for seeking terminating
sanctions in their favor, and Longwood had served demands on
some but not all of the plaintiffs. Second, they argue that the
court “treated the parties unequally with respect to adjustments
that were necessary for everyone during the COVID-19
pandemic”. Third, they maintain that Normandie was guilty of
unclean hands in responding to plaintiffs’ discovery and was
therefore barred from seeking relief against plaintiffs based on
their own discovery abuse.
To the extent that plaintiffs contend that the sanctions
orders should have been more specifically tailored as to the
individual plaintiffs and defendants, they never raised this
argument in the trial court. Rather, plaintiffs collectively filed
joint briefs and argued that none of the defendants were entitled
to sanctions because plaintiffs had, in their view, substantially
complied with their discovery obligations and no significant
prejudice had been caused by their delays. “‘Appellate courts are
loath to reverse a judgment on grounds that the opposing party
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did not have an opportunity to argue and the trial court did not
have an opportunity to consider. [Citation.] In our adversarial
system, each party has the obligation to raise any issue or
infirmity that might subject the ensuing judgment to attack.
[Citation.]’ [Citation.] ‘“The purpose of this rule is to encourage
parties to bring errors to the attention of the trial court, so that
they may be corrected.” [Citation.]’ [Citation.] [¶] Issues
presented on appeal must actually be litigated in the trial court—
not simply mentioned in passing. ‘“[W]e ignore arguments,
authority, and facts not presented and litigated in the trial
court.”’ [Citation.]” (Natkin v. California Unemployment Ins.
Appeals Bd. (2013) 219 Cal.App.4th 997, 1011 (Natkin).)
Accordingly, plaintiffs have forfeited these arguments on appeal.
To the extent plaintiffs seek to have us reweigh the
propriety of terminating sanctions in light of the relative import
they place on certain factors, such as the discovery conduct of the
moving parties, under the abuse of discretion standard, “we ‘view
the entire record in the light most favorable to the court’s ruling,
and draw all reasonable inferences in support of it. [Citation.]
We also defer to the trial court’s credibility determinations.
[Citation.]’” (Osborne v. Todd Farm Service, supra, 247
Cal.App.4th at p. 51.) We do not determine “‘“whether the trial
court should have imposed a lesser sanction; rather, the question
is whether the trial court abused its discretion by imposing the
sanction it chose.”’” (Liberty Mutual, supra, 163 Cal.App.4th at
p. 1105.) And, in light of plaintiffs’ willful failure to comply with
the trial court’s orders to respond to discovery, their consistent
refusal to respond to defendants’ demands, the failure of prior,
substantial monetary sanctions to produce compliance, and
defendants’ demonstrated prejudice, we conclude the court did
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not abuse its discretion in imposing the terminating sanctions
here.
IV. DISPOSITION
The judgments are affirmed. Defendants are awarded costs
on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
BAKER, Acting P. J.
MOOR, J.
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