Motion to Compel Deposition (Judge David Chaffee)

Motion to Compel Party Deposition ? ? ??

This is a personal injury action in which plaintiff contends that her slip and fall at Angels Stadium was caused by water seeping out from a trashcan near a concession outlet operated by non-party Aramark.? Angels? Baseball LP?s (?Angels?) tender of the defense to Aramark was denied, thus prompting the recent filing of a cross-complaint to add Aramark as a new party.

Before the Court this day is a motion by Angels to compel plaintiff?s attendance at deposition.? This is the third discovery motion filed against plaintiff:

?? On 12/11/15, this Court provisionally granted Angels? motion to deem RFAs admitted (later modified to sanctions only after plaintiff provided late responses);
AND

?? On 04/01/15, this Court provisionally granted Angels? three motions to compel proper written discovery responses (later modified to sanctions only after plaintiff provided late responses).

Defendants have also struggled to get plaintiff?s cooperation with an IME ? but that is not before the Court at this time.

Service of a notice of deposition is effective to require a party or party-affiliated witness to attend and to testify.? CCP ?2025.280.? A party may serve written objection to the deposition notice based upon an ?error or irregularity? under Article 2 of the Code.? CCP ?2025.410.? The differing grounds for objection are provided by statute, and include such things as the 10-day notice and 75/150 mile requirements.? See CCP ?? 2025.210 – 2025.280.? Unavailability for a date unilaterally selected is not one of the enumerated grounds for objecting to a deposition notice, but more importantly service of an objection does not stay the deposition.? Article 2 (? 2025.210 – 2025.280) does not contain any requirement that a deposition be scheduled after agreement is reached on the date.? Even though professional courtesy dictates cooperating on deposition dates, the deponent has an affirmative obligation to file a motion to quash (for procedural errors) or a motion for protective order (to adjust the timing and/or location).? CCP ?2025.420(b).? When a party or party-affiliated witness fails to appear for deposition, the traditional ?meet and confer? requirement for discovery motions is substituted for a lesser ?inquiry? declaration.? CCP ?2025.450(b)(2).

Here, it appears the defense has done all that could be expected of them ? and yet plaintiff is back to her old discovery gamesmanship (including refusing to appear for her IME, which is not yet the subject of any discovery motion).

There is technically a substantive opposition already on file (filed 06/13/16) by plaintiff, but that pleading offers no explanation for why plaintiff failed to appear for her 03/28/16 deposition.? According to plaintiff she is willing to appear for deposition but there was confusion as to her need to do so on 03/28/16.? More the focus to plaintiff is refuting defendants? request for a punitive sanction.? That request is premature.? However, this Court is concerned about the pattern here.

Motion to compel plaintiff?s attendance at a deposition is GRANTED.? Plaintiff is ordered to immediately provide defense counsel with 3 available dates in June for her deposition.? The alternative request for issue/evidence/terminating sanctions is continued to 07/01/16 at 9:30am.? All counsel are ordered to personally appear at that time to discuss discovery status and potential trial continuance.

As for monetary sanctions for plaintiff?s failure to appear at the 03/28/16 deposition, Angels? counsel is awarded $678.00 as prayed for.? As for time spent on the motion, Angels? counsel is entitled to reimbursement of $740.00 (3 hrs + filing fee).? Counsel for Aramark shall be reimbursed $684.50 in total as prayed for.

30-2015-785491

Rainaway, Inc. VS Allied roofing Company, Inc.

Motion to Vacate Dismissal

The Complaint alleges that Defendant owed money under contract for services but paid with a NSF check; the causes of action are in contract and for fraud.

2015

5/1???? Complaint filed

6/5???? Clerk gave notice of 10/1 CMC

10/1??? CMC continued at Plaintiff’s request

11/5??? At CMC, counsel stated intent to amend.? Court

continued the CMC to 12/3 and set OSC re dismissal on the same date.

11/6??? Plaintiff files 1st Amended Complaint

12/3??? Counsel at CMC stated all parties were served.

OSC was taken off calendar.? CMC continued to 1/6

2016

1/4???? Plaintiff filed POS on one defendant.

1/6???? Plaintiff dismissed one party and Court set OSC

re dismissal of all “unserved/non-appearing” parties for 2/2 and continued the CMC to the same date.? No Defendant has answered the complaint.

2/2???? When on one appeared the Court ordered the entire case dismissed. Clerk gave notice the same day.

5/12??? This motion was filed.

Counsel claims that failure to appear was due to calendar error.? He declares that all Defendants have been served and they have all “been defaulted” and the case is ready for entry of default judgment.? THIS IS UNTRUE.? The only proof of service filed was in January and it was only on Allied Roofing and Waterproofing.”? NO requests for entry of default were ever filed and there is no indication in the Court?s file of any attempted filing that was rejected.

In addition, Plaintiff’s attorney waited another five months after the dismissal before trying to set it aside.? The motion was filed over a year after the complaint was filed.

“Mandatory relief” can be denied if “the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”? The history of this action shows what appears to be deliberate delay in prosecuting the case.? In addition, the supporting declaration is perjured; no default have been taken.

Notice of motion doesn?t even state what is being sought, only an “order relieving Plaintiff from error of counsel in failing to appear” at the CMC/OSC.? The case wasn’t dismissed for failing to appear but for failing to show cause.? It still has not been shown.

Plaintiff’s motion for relief “from the error of counsel in failing to appear” at a CMC/OSC is denied.? The Court finds that failure to respond to the OSC was not the result of attorney mistake, inadvertence, surprise or neglect” but was part of a pattern of deliberate delay and failure to prosecute this case.? CCP ?473(b).

The case was filed over a year before this motion was filed.? It was dismissed on 2/2/16 for failure of Plaintiff’s attorney to show cause regarding dismissal of unserved/non-appearing parties; it was not dismissed merely for failure to appear at a CMC.

Mandatory relief depends on the credibility of counsel; where the affidavit of fault lacks credibility, the motion can be denied. Behm v. Clear View Technologies (2015) 241 Cal.App.4th 1, 15.? Counsel declares that defaults of all defendants have been taken and the case is ready for default judgment.? This is a blatant misrepresentation; no requests for entry of default have been filed and only one proof of service on only one defendant was filed in over a year since the case was filed on 5/1/15.

Counsel waited another 5 months after the dismissal before seeking to set it aside, reinforcing the Court’s conclusion that there is a pattern of deliberate delay.

30-2015-823864

Vallejo VS Santa Ana Unified School District

Off Calendar

30-2016-838984

Okhman VS Snell & Wilmer

Continued Hearing of Three Applications to Appear Pro Hac Vice???????

Proofs of service and notice of the continued hearing having been filed, the Court now grants the unopposed Applications of Lauren V. Purdy, of David M. Wells, and of David R. Atkinson for admission pro hac vice to represent the Defendants herein.

Defendants shall give notice.

30-16-829152

Montero VS Nicholas

Case Management Conference

1.??? Motion to Disqualify Plaintiff?s Counsel

Pertinent Background

This is a case of high-profile ?love? gone awry.

Plaintiff and defendant met in 2009.? Plaintiff had just been laid off from her job in the residential mortgage industry and was ?working as a manager at a restaurant and lounge in Newport Beach? at the time.? Defendant ?was (and is) a multi-billionaire and co-founder of semiconductor maker Broadcom Corporation.?? FAC ?7-9.? Despite a 16 year age difference, a romantic relationship blossomed.? According to plaintiff, that relationship lasted for six years, and only ended after plaintiff was ?forced to flee Nicholas for her own personal safety.?? FAC ?1. ?Plaintiff admits the relationship was tumultuous, amplified by occasional drug use.? FAC ?32.? (Defendant disputes the length and seriousness of the relationship, and the allegations of physical, emotional and drug abuse.)

The crux of this litigation is money, and a series of alleged oral promises made by defendant to buy plaintiff a home, shower her with cash, and to provide ?financial support and pay her expenses and other needs for the rest of her life.?? FAC ?16, 77.? Nothing is in writing.? According to plaintiff, defendant gave her $25,000/month in exchange for plaintiff moving in to his palatial residence, giving up her job, ignoring her friends, freezing her eggs, and devoting ?every waking hour to Nicholas and his needs or demands, whether personal, family, business, or charitable interests.?? FAC ?24.? Plaintiff further described the stipend as compensation for being defendant?s ?personal assistant, secretary, business advisor, life coach, confidante, nurse (after dental and orthopedic operations), social companion, household manager, social coordinator, stepmother to Nicholas?s children, and liaison to Nicholas?s ex-wife.?? FAC ?24.? Plaintiff claims contractual damages in excess of $60 million even though she did not fulfill her part in staying with defendant for the remainder of his life.? Plaintiff also claims $10 million in damages for various torts committed against her, most notably assault and battery.

Defendant?s Motion to Disqualify Greenberg Gross

Before addressing the motion itself, this Court feels compelled to remind defendant of some basic civil litigation rules.? Pursuant to CCP ?1005(b), moving papers are to be filed at least 16 court days before a hearing.? On 06/10/16, defendant filed a motion to strike, coupled with two declarations and an Appendix of Authorities (which is no longer required absent court request).? Although the motion was unilaterally set for hearing on 06/17/16, the earliest such a motion could be heard (absent a court order) would be 07/08/16.? Thus, the motion to strike and its accompanying papers was not filed in conformity with the law.? The papers would be timely as a ?reply? in support of the motion, except that the declarations are new matter which cannot be considered for the first time on reply.? See Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4^th 227, 241; Jay v. Mahaffey (2013) 218 Cal.App.4^th 1522, 1537-1538.? Either way, the defense has burdened this Court with improper papers.? The defense?s impropriety then, of course, led to an unauthorized (but meritorious) ?objection? filed by plaintiff, which led to an unauthorized ?reply brief? filed by defendant.? Counsel are forewarned that this Court will not countenance further departures from the rules.

Now, on to the disqualification motion ?

The request to put on live testimony at the hearing is DENIED.? No good cause is shown for such, and the repeated accusations of ?perjury? between Gonzalez and Katz are hyperbole at best.

The evidentiary objections are overruled except as noted infra.? Although there are foundational issues abound, this is not a dispositive motion and most of the matters go to the weight rather than the admissibility of the evidence.

Pursuant to CCP ?128(a)(5), trial courts have authority to disqualify an attorney ? and his entire law firm ? from participating in a given case upon a proper showing of conflict.? Before the Court this day is a defense motion to deem Attorney Michael Katz (CA State Bar 181728) impermissibly conflicted, and to then disqualify his entire law firm (Greenberg Gross) from representing plaintiff herein.

As our Supreme Court observed several decades ago, ?disqualification motions involve a conflict between the client’s right to counsel of choice and the need to maintain ethical standards of professional responsibility.? The paramount concern is to preserve public trust in the scrupulous administration of justice and the integrity of the bar.? Thus, the right to counsel of one’s choice must yield to ethical considerations that affect the fundamental principles of our judicial process.?? People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4^th 1135, 1145.? However, courts should also be wary when deciding such motions since sometimes these motions are brought for improper tactical reasons.? See Rhaburn v. Superior Court (2006) 140 Cal.App.4^th 1566, 1575.

A.?? Is Attorney Katz Impermissibly Conflicted?
Defendant?s motion herein is predicated on CRPC 3-310(E), which prohibits a lawyer ? without the informed written consent of the client ? from accepting employment adverse to the client or former client where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment.? There are two branches to disqualification:

?? Actual knowledge of confidential information obtained from the client which is germane to the new matter;
OR

?? Presumed imparting of confidential information given the substantial relationship between the former legal services and those involved in the new matter.

Attorney Katz was a partner in the Orange County branch office of Morrison & Foerster LLP when assigned to work on a Probate matter for Henry Nicholas.? The matter was pending here in Orange County (case no A240406) for several years, starting in 2006.? Attorney Katz was counsel of record for Nicholas from 2006 through 2008, when Attorney Katz moved on to another law firm.? The question presented is whether Attorney Katz actually acquired confidential information about Nicholas germane to the pending lawsuit with Montero, or whether there is a substantial relationship between the prior services and the pending action such as to presume imputation.

1.??? Actual Knowledge

What evidence does defendant have that Attorney Katz actually had confidential information from Nicholas which could be used against Nicholas in the current lawsuit?? It is hard to say.? Consider the declaration of Attorney Gonzalez (see Decl ?4):

?Mr. Katz requested and received significant privileged and confidential information about Dr. Nicholas during his engagement by (a) the Nicholas Enterprise Entities to review and advise on confidentiality provisions in its employment agreements, (b) by Dr. Nicholas in In re Nicholas Family Trust as his counsel of record, and (c) in furtherance of Dr. Nicholas?s various other litigation (e.g., Dr. Nicholas?s then-pending dissolution action in In the Marriage of Nicholas, in Orange County Superior Court Case No. 02D010487). During his representation of Dr. Nicholas, Mr. Katz participated in numerous telephone conferences and e-mail correspondence with my predecessor, Craig Gunther, and with Dr. Nicholas?s counsel of record in the then-pending dissolution action, Steven Silverstein, who also served as Dr. Nicholas?s personal attorney and as interim general counsel of the Nicholas Enterprise Entities. Mr. Katz also communicated with Dr. Nicholas?s executive/personal assistant.?

There is no question that Attorney Katz provided legal services to Nicholas in 2006, including but not necessarily limited to:

?? Filing a verified trust petition;

?? Propounding discovery to Nicholas? ex-wife and co-trustee;

?? Issuing deposition notices to household staff;

?? Preparing a tolling agreement;

?? Reviewing various employment contracts;

?? Reviewing limited material from the divorce case.

Attorney Katz does not dispute this.? There is no evidence regarding what Attorney Katz reviewed vis-?-vis the divorce case, and his involvement with the employment contracts was admittedly quite narrow.? As for the Probate action, a ?stay? was imposed quickly after it started and by the time the stay was lifted Attorney Katz had already resigned from Morrison & Foerster (which retained the Probate action in its inventory).? It appears that Katz?s active involvement with the Probate action lasted less than two months.

When proceeding under the ?actual knowledge? branch, the moving party must offer something more than conjecture.? See Elliott v. McFarland Unified School Dist. (1985) 165 Cal.App.3d 562, 572.? Defendant offers evidence that puts Attorney Katz in a good position to acquire confidential information, but no evidence that he actually did.? There is no evidence of any information being provided to Attorney Katz, which naturally would come in the form of a declaration from Attorneys Gunther or Silverstein.? Their silence, and that of defendant?s himself, is quite telling.? It remains speculative hearsay at best.? It may be that defendant has more incriminating writings to offer in camera, but that has to be defendant?s election.? See League of California Cities v. Superior Court (2015) 241 Cal.App.4^th 976, 988-990.

In addition, although Attorney Gonzalez opines that ?Mr. Katz was exposed to Dr. Nicholas?s privileged and confidential information, such as his (1) pre-trial discovery, settlement and trial strategies; (2) personal and financial information protected by his right to privacy; (3) written discovery and court filings made under protective orders; and (4) other attorney work product? (see Decl ?4), this information is unclear.? One?s personal litigation ?strategy? is not necessarily confidential.? See Banning Ranch Conservancy v. Superior Court (2011) 193 Cal.App.4^th 903, 918.? What confidential financial information did Attorney Katz receive that plaintiff can use in this case?? Since plaintiff was personally acquainted with defendant?s finances, wasn?t she in just as good a position to know whether defendant was a good mark?? Information relayed to Attorney Katz from sources other than Nicholas ? such as from plaintiff herself or Attorneys Gunther and Silverstein ? may not count absent some kind of special agreement.? See Roush v. Seagate Technology, LLC (2007) 150 Cal.App.4^th 210, 221-227.

In the end, defendant has not yet established that Attorney Katz actually possessed confidential information which might have even the slightest bearing on the case at bar.? The fact that Attorney Katz ?may have? had access to information involving Nicholas? divorce case and employment transaction matters is not enough to show actual possession of confidential information.? It may, however, factor into presumptive imputation (see below).

2.??? Presumed Imputation via Substantial Relationship

A substantial relationship is one in which the various representations have a logical nexus to one another, including factual or legal similarities.? City & County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4^th 839, 847; Morrison Knudsen Corp. v. Hancock, Rothert & Bunshoff (1999) 69 Cal.App.4^th 223, 234.? ?Successive representations will be substantially related when the evidence before the trial court supports a rational conclusion that information material to the evaluation, prosecution, settlement or accomplishment of the former representation given its factual and legal issues is also material to the evaluation, prosecution, settlement or accomplishment of the current representation given its factual and legal issues.?? Jessen v. Hartford Casualty Ins. Co.(2003) 111 Cal.App.4^th 698, 713.

At first blush, a straight breach of contract ?Marvin? action between former lovers would seem to have little in common, much less a substantial relationship, with:

?? Probate litigation in which Nicholas accused his ex-wife (and then co-trustee) of poaching household employees away from the family trust to go work for her own ventures;

?? Reviewing, and possibly rewriting, ?no compete? employment agreements for Nicholas to use with household employees who might later decide to go work for his ex-wife;

?? Reviewing (albeit quite briefly) some information regarding Nicholas? divorce proceeding from his ex-wife.

The legal matters handled by Attorney Katz were many years ago, before Montero was in the picture, and involving matters unrelated to alleged promises made by Nicholas to Montero.? This might explain why Attorney Katz believed there was no conflict.? However, plaintiff?s operative pleading is not limited to broken promises (and the related torts).? Instead, plaintiff went for the jugular, filing an operative pleading so broad and far-flung with salacious innuendo touching on every aspect of Nicholas? life that it is hard to imagine how Attorney Katz could provide competent professional legal services to Nicholas in 2006 and not come across some confidential information beneficial to Montero today.? Montero?s ?everything plus the kitchen sink? approach to this case pulls in (like a vortex) almost everything pertaining to Nicholas.

The test for substantial relationship is less literal and more fluid.? From a holistic perspective, there is certainly some overlap between the work performed by Attorney Katz in 2006 and the issues percolating here today.? For example:

The Probate litigation involved disgruntled household employees and their allegiance (or lack thereof) to Nicholas.? In the case at bar, Montero claims that she managed, and was part of, the household staff ? many of whom she claims were subjected to abusive behavior (see FAC ?24, 26, 33, 94).? In the Probate action Attorney Katz had to minimize Nicholas? bad behavior toward household staff, but here his new firm has to do just the opposite.? The Probate action was still ongoing when Montero started her relationship with Nicholas, and Montero acknowledges that Nicholas told her about ?other litigation with his ex-wife? during their courtship (see FAC ?10).? It was one of the ways Nicholas allegedly managed to lull and lure Montero along into the one-sided relationship she now complains about (see FAC ?12).

Similarly, with regard to the transactional work rewriting the ?no compete? employment agreements for the household staff, Montero claims in the case at bar that she managed, and was part of, the household staff (see FAC ?24, 26, 33, 94).? With the transactional work, Attorney Katz was trying to protect Nicholas and (presumably) silence household staff, but here his new firm wants the staff to sing out loud against Nicholas to support plaintiff?s claims of abuse.

Finally, as it relates to the divorce case, there is no question that Attorney Katz had virtually nothing do with it except that he might have received some information regarding assets and whatnot.? Montero was already living with (at least per her contentions) Nicholas while the divorce proceedings were ongoing (see FAC ?18).? Montero also claims that she was instrumental in mediating angst between Nicholas and his ex-wife (see FAC ?24-25).? To the extent Attorney Katz may have learned anything about the divorce case (the scope of which may never be known), it certainly stands to reason that such information could be used against Nicholas.? Montero raises issues regarding his temperament, treatment of others, assets, false promises, delay, etc. ? all of which were part and parcel of the divorce case to one degree or another.

This Court assumes that Attorney Katz did his due diligence as any competent attorney would when representing Nicholas, and gathered information from a variety of sources to provide the best pro-Nicholas advice/service.? The information Attorney Katz would have acquired in that exercise is similar to what Montero seeks to prove by way of her bloated FAC.? Attorney Katz may have been right when he opined early on that his representation of Nicholas was not substantially related to the Montero claims, but that opinion was not based on a review of the operative pleading plaintiff intended to file.? That told a different story.? Plaintiff?s decision to swing for the fences created a substantial relationship between the case at bar and Attorney Katz?s prior services to Nicholas.? Attorney Katz is sufficiently, but perhaps unwittingly, conflicted to warrant disqualification were he actually representing Montero in the case at bar.? Since he is not involved with the case at bar, the next question is whether the entire firm is vicariously disqualified.

B.?? Must Greenberg Gross be Disqualified?

When an attorney such at Katz is disqualified by a conflict of interest based on an earlier representation in another matter (successive representation conflict), his new law firm may be vicariously disqualified based on the assumption ?that attorneys, working together and practicing law in a professional association, share each other’s, and their clients’ confidential information.? ?City & County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4^th 839, 847-848; in accord, Beltran v. Avon Products, Inc., 867 F.Supp.2d 1068, 1083? (C.D. Cal. 2012).

Despite this assumption, a new firm may avoid disqualification if it erects a proper ethical screen around the disqualified attorney (here Katz) at the inception of the representation.? See People ex rel. Department of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4^th 1135, 1151-1152; Kirk v. First American Title Ins. Co. (2010) 183 Cal.App.4^th 776, 800.? Proper ethical screening can avoid vicarious disqualification in limited circumstances, but the most important aspect of an effective screen is that it come into being immediately.? Kirk, at 810; In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, 594 [?screening should be implemented before undertaking the challenged representation?].? For example, the district court in Beltran, supra, found that an ethical wall erected two weeks after the complaint was filed was not enough.

Here, no ethical screen was ever erected.? According to Alan Greenberg, ?after being apprised of the general nature of the prospective representation of Montero against Nicholas, Katz reported that there was no conflict on account of his previous representation because the matters were unrelated and he had no confidential information of Nicholas. Having concluded that there was no conflict, we proceeded to accept the representation of Ms. Montero.?? Greenberg Decl ?3.? Attorney Greenberg should have dug a little deeper, or at least been honest with Attorney Katz that he had no intention of limiting the Montero case to a simple breach of contract.? Once Attorneys Greenberg and Borges decided to impregnate the operative pleading, a reassessment of the conflict issue was required.? Although Katz is not ?on the team? handling this case, there are only 13 lawyers firm-wide, all of whom are under one roof.? Thus, it was imperative for the firm to erect an ethical wall around Attorney Katz whether or not it believed he had a conflict.? Unless the firm intended to use Katz?s knowledge, why not erect a wall?? Although Greenberg Gross made an error assessing the degree of conflict, the bigger error was not taking the obvious precaution of walling-off Attorney Katz anyway.? Had he been walled-off, and had the FAC been moored to a simple Marvin matrix, a different result may have occurred ? but alas that bell cannot now be unrung.

Finally, there is the issue of undue prejudice, which plaintiff?s counsel describes as ?extraordinary? given a requested trial date later this year.? However, there is no trial date in this case, and as plaintiff?s counsel repeatedly points out there has been to date only limited discovery and no depositions.? The pleadings are not at issue.? This case is far from trial-ready.? Although counsel contends to have spent 1,500 hours on the case, it is not clear where those hours went.? Counsel opines that it would be unfair to make Montero repeat her story to new attorneys, but Montero?s story is already spelled out in graphic detail in the operative pleading.? All she has to do is nod her head ?yes? when asked by her new attorneys ?is all of this true??? She will still have to recount her story in written discovery and deposition and trial.? Counsel offers nothing close to extreme prejudice to plaintiff in having to secure new counsel.

Motion to disqualify Greenberg Gross LLP is GRANTED.

2.??? Motion to Compel Defendant?s Deposition

Here, the motion to compel is proper.? Defendant offers no legal justification for refusing to sit for a deposition.? If plaintiff wishes to use her one deposition before written discovery and the pleadings being at issue, that is her choice to make.? Motion to compel GRANTED.? Defendant is to immediately provide 5 dates to sit for his deposition upon notice from plaintiff?s new counsel.? Plaintiff did not request monetary sanctions relating to this motion, so none are awarded.

30-2015-00797683

Ghahremani v. Rezvani

Defendants? Motion for Summary Judgment/Adjudication

Defendants Maryam Rezvani and Truck Insurance Exchange move for summary judgment or adjudication as to all 4 causes of action in the First Amended Complaint filed on 11/10/15 by Plaintiffs Mehran Ghahremani and Nasran Enterprises Inc. dba Golden Wrench.

The court GRANTS the motion for summary judgment and the motions for summary adjudication for the reasons set forth below.

A.?????? Burden of Proof

Defendants bring this motion for summary adjudication.? To prevail, Defendants have the burden of proving that there is a complete defense or that Plaintiffs cannot establish one or more elements of each of their causes of action.? (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562, 42 Cal.Rptr.2d 697.)? To show that Plaintiffs cannot establish their claims, Defendants may either (1) affirmatively negate one or more elements of each claim, or (2) by relying on Plaintiffs? inadequate discovery responses, show that Plaintiffs do not possess and cannot reasonably obtain needed evidence.? (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 855.)

The initial burden of production is on Defendants to show by a preponderance of the evidence, that it is more likely than not that a given element cannot be established or that a given defense can be established.?? The ultimate burden of persuasion also rests on Defendants, as the moving parties.?? (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 850.)

If Defendants carry their initial burden of production, the burden of production shifts to Plaintiffs to show that a triable issue of material fact exists.? Plaintiffs do this if they can show, by a preponderance of the evidence, that it is more likely than not that a given element can be established or that a given defense cannot be established.? (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 850, 852.)

In determining whether Plaintiffs have met their shifted burden of production, the court must evaluate the Plaintiffs? evidence independently.? That is, the court may not weigh the Plaintiff?s evidence or inferences against the Defendant?s, as if the court were sitting as a trier of fact.

If the Plaintiffs meet their shifted burden, then the court must deny summary judgment, even if Defendants have presented conflicting evidence.? If the Plaintiffs meets their shifted burden, a reasonable trier of fact could find for Plaintiffs and a triable issue of fact does exist for the jury to consider. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 856-857.)

However, the court is entitled to consider all of the evidence presented by both parties, so that documents and evidence presented by Plaintiffs in opposition to the motion may cure evidentiary gaps in the moving papers. (Weil & Brown, Civil Procedure Before Trial (The Rutter Group 1997 ed. & 2002 Supp.) Summary Judgment, ? 10:251, p. , citing Villa v. McFerren (1995) 35 Cal.App.4th 733, 749, 41 Cal.Rptr.2d 719, 730; Code Civ. Proc., ? 437c (c) [The court shall consider all the papers submitted, all admissible evidence therein, and all inferences reasonably deducible therefrom.)

In determining whether any triable issues of material fact exist, the court must strictly construe the moving papers and liberally construe the declarations of the party opposing summary judgment.? Any doubts as to whether a triable issue of material fact exist are to be resolved in favor of the party opposing summary judgment.? (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562, 42 Cal.Rptr.2d 697.)

B.?????? 1^st COA: Breach of Contract

GRANTED as to the 1^st cause of action.

Defendants make a prima facie showing that the first cause of action for breach of the insurance contract is time-barred by the two-year statute of limitations set forth in the insurance policy.

Plaintiffs suffered a fire loss on 7/8/10 and the next day on 7/9/10 made a claim under their insurance policy, which Defendants breached by refusing to cover the fire damage.? The policy?s coverage period was from 6/6/10 through 6/16/11.? In their prior related action, filed on 7/12/13, Plaintiffs admitted that the claim was based on Truck Ins. policy 60392-47-34, which includes a provision setting forth a contractual limitations period of two years after the date when the loss or damage occurred.

While the statute of limitations for breach of contract actions is 4 years under CCP 337, the parties may contract for a shorter statute of limitations period.? (Zamora v. Lehman (2013) 214 Cal.App.4^th 193, 206.)? A contractual limitations period starts to run from the date of loss, but is equitably tolled ?from the time the insured files a timely notice, pursuant to policy notice provisions, to the time the insurer formally denies the claim in writing.?? (Prudential-LMI Commercial Ins. v. Superior Court (1990) 51 Cal.3d 674, 678.)?? This give the insurer additional time to properly investigate the claim without requiring the Plaintiff to file suit prematurely before the claim has been investigated and determined by the insurer.? (Id. at p. 692.)

In their Original Complaint filed in the prior action (2013-662320), Plaintiffs admitted that on or about 7/20/11, they received a letter from the insurer denying the claim in its entirety and for all purposes, as identified by policy number 60392-47-34 and claim number 1016407758.

So here, the 2-year statute began to run on 7/8/10 and ran for one day until 7/9/10.? At that point it was tolled until 7/20/11 when the claim was formally denied.? Plaintiffs were therefore required to file their action within two years or no later than (on or about) 7/20/13.? However, they filed their Original Complaint in this action on 7/9/15, nearly two years too late.

It is well-established that the filing date does not relate back to the filing of the Original Complaint in the prior action, because that first action was voluntarily dismissed without prejudice.? Such a dismissal does not automatically toll or waive the running of the statute of limitations. (Hill v. City of Clovis (1998) 63 Cal.App.4^th 434, 445.)

Accordingly, the burden shifts to Plaintiffs to show that triable issues of material fact still exist.? However, in Opposition, Plaintiffs fail to carry their burden.? Plaintiffs merely assert that the insurance contract was never provided to Plaintiff, that Truck Insurance never rejected the claim because they never mailed a rejection letter to Plaintiffs, and that the attorney Troiani was disbarred and unlicensed and had no authority to act or file pleadings on behalf of Plaintiffs.? However, Plaintiffs fail to present sufficient evidence to support their assertions and to the extent they do present evidence, it is flatly contradicted by prior discovery admissions and admissions in Plaintiffs? prior and current pleadings in this action and in the prior action.

Therefore, the motion is GRANTED as to the 1^st cause of action.

C.?????? 2^nd COA: Breach of Implied Covenant of Good Faith and Fair Dealing

GRANTED as to the 2^nd cause of action.

The analysis of the insurance bad faith claim is identical to the analysis set forth above in section A.? This is because insurance bad faith concerns a claim, claim handling, or policy benefits denial under the contract and ?on the policy.?? So the 2-year contractual limitations period applies.? (Prieto v. State Farm (1990) 225 Cal.App.3d 1188, 1195.)

D.?????? 3^rd COA: Intentional Misrepresentation

E.?????? 4^th COA: Negligent Misrepresentation

GRANTED as to the 3^rd and 4^th causes of action.

Fraud claims for intentional misrepresentation and negligent misrepresentation are governed by the 3-year and 2-year statutes of limitations respectively under CCP 338 (d) and 339 (1).? (Smyth v. USAA Property & Casualty (1992) 5 Cal.App.4^th 1470, 1477-1478; Ventura County National Bank v. Macker (1996) 49 Cal.App.4^th 1528.)

The period begins to run when Plaintiffs knew or should have known of the facts essential to their claim.? (Love v. Fire Ins. Exchange (1990) 221 Cal.App.3d 1136, 1143-1144 [plaintiffs? claims accrued in 1981 when they were notified by their? geotechnical firm that the home was suffering from damages from subsidence problems caused by third party negligence in constructing the home].)? ?An insured who is aware of the essential facts cannot toll the statute of limitations by contending he only belatedly discovered his policy might provide coverage, because knowledge of the facts, rather than knowledge of the available legal theories or remedies, starts the statute of limitations.?? (Ibid.)

It is knowledge of the essential facts and unconditional denial of the claim that start the statute of limitations, not discovery of the legal theories of recovery.? (Prieto, supra, 210 Cal.App.3d at 608-609.)

Here, Plaintiffs knew or reasonably should have known all of the essential facts on or about 7/20/11, when they received the denial letter.? They had already suffered a fire loss, made a claim, and received the insurer?s decision on coverage following investigation of the claim. Accordingly, the claims should have been filed no later than 7/20/13 and 7/20/14.?? However, Plaintiffs did not refile their dismissed action until 7/9/15, which was too late.

Accordingly, both fraud claims were time-barred.

In Opposition, Plaintiffs fail to carry their burden to show that triable issues of material fact exist.

F.?????? Requests for Judicial Notice

The court GRANTS the parties? respective requests for judicial notice.

G.?????? Plaintiffs? Objections to RJN

Plaintiffs? objections are irrelevant because they are legal arguments as to the operative effect of the documents, not arguments as to why the documents are not properly admissible into evidence.

1.?????? RJN Ex. 1 — OVERRULED.

Plaintiffs object to the RJN Ex. 1 on the ground that the insurance contract was never signed by the insured and was never delivered.

However, the objection is OVERRULED.? In their Reply, Defendants note correctly that Plaintiff admitted in his Original Complaint in the prior lawsuit that the policy was in full force and effect and Plaintiff Ghahremani admitted in his deposition that he had a copy of the policy in his file cabinet at the time of the fire.? Also, in this action as well, Plaintiffs admitted that the policy was in full force and effect.

Defendants also argue correctly in their Reply that there is no legal requirement that the policy be signed by the insured or delivered to be effective.

Defendants argue that Plaintiffs in their Opposition may not raise new issues, arguments or theories not properly noticed and raised in their pleadings.? However, Defendants make no showing that Plaintiffs were required to plead around the statute of limitations defenses, given that Plaintiffs artfully drafted their Complaints in this matter so as to obscure the fact that the claims were time-barred.

2.?????? RJN Ex. 2 — OVERRULED.

Plaintiffs objects on the ground that he never received the denial letter.? This is not a valid ground for refusing to admit the letter into evidence.? This argument goes to the operative effect of the letter, not its authenticity or admissibility.

Furthermore, Defendants argue correctly that Plaintiffs in their Opposition may not raise new issues, arguments or theories not properly noticed and raised in their pleadings.

3.?????? Objections to Sherman Declaration

The court need not rule on these objections because they are not in the proper format under CRC 3.1354.? If required to rule the court would OVERRULE all the objections.

4.?????? Objections to Reply Evidence.

The court need not rule on these objections because they are not in the proper format under CRC 3.1354.? If required to rule the court would OVERRULE all the objections

H.?????? Defendants? Objections to Evidence

Defendants? Objections 1-15 to the Gharemani Declaration are OVERRULED.

I.??????? Plaintiffs? Prior Admissions During Discovery and in Pleadings

Defendants argue correctly that declarations by a party opposing summary judgment may be disregarded if they controvert prior sworn admissions.? (D?Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)? Admissions of material fact in the pleadings or discovery responses of a party binds that party as a judicial admission that effectively removes that matter as an issue from the litigation.? (Valerio v. Andrew Youngquist Construction (2002) 103 Cal.App.4^th 1264, 1271.)

Accordingly, while the court OVERRULES the objections and finds that the testimony is admissible, the court shall disregard any subsequent testimony to the extent it contradicts prior sworn testimony by Plaintiffs or their agents.

Most notably, Defendants argue correctly that attorney Troiani?s representation of Plaintiff at his examination and Ghahremani?s admission therein that Troiani was his attorney constitute admissions that Troiani was his attorney and was authorized to act on his behalf in filing the prior pleadings in the prior action and to receive notice of the denial letter on Ghahremani?s behalf.? (Reply at pp. 5-6.)? Plaintiffs present no competent evidence or documentary evidence that Troiani was disbarred at the time the denial letter was faxed and mailed.? And Plaintiffs admitted receipt of the denial letter in their Original pleading in the prior action.

30-2015-797352

Gutierrez VS Le

MSJs by Defendants Mandel and Le???????

Plaintiffs Jose Guadalupe Gutierrez, Erasto Gutierrez, MD, Iram Gutierrez and Omar Gutierrez allege that Defendants Alyssa K. Le, MD and Ronald S. Mandel, DO were negligent in their treatment of Erendira Gutierrez (wife and mother to Plaintiffs), resulting in her death in April 2014.? Specifically, in March 2011 during a brief stay in Mission Hospital, Mrs. Gutierrez underwent a variety of tests including a CT angiogram of the Thoracic and Abdominal Aorta.? The CT showed a diffuse prominence of the main pancreatic duct.? The radiologist reading the CT recommended a further study.? However, neither Dr. Le (the hospitalist treating Mrs. Gutierrez during her stay at the hospital) nor Dr. Mandel (Mrs. Gutierrez?s regular doctor) followed up or informed Mrs. Gutierrez of the findings or the recommendation for a further study.? No further action was taken until December 2012 when Mrs. Gutierrez presented to Dr. Mandel with abdominal pain.? Further tests were run and in January 2013, Mrs. Gutierrez was diagnosed with pancreatic cancer.? She was treated with chemotherapy and radiation therapy but ultimately died in April 2014 from the cancer.? Plaintiffs allege that Defendants breached the standard of care by failing to notify Mrs. Gutierrez of the March 2011 CT finding or refer her to a physician who could follow-up as recommended.

As a preliminary matter, the Court notes that Plaintiffs did not file proof with this Court that they served Defendants with any document filed in opposition to Defendants? motions.? The Court further notes that Defendant Le did not file a reply brief or any other document in response to Plaintiffs? opposition.? The parties are to be prepared to address these issues prior to a hearing on the merits of the motions.

A defendant moving for summary judgment may prevail on the motion in one of three ways: (1) by affirmatively negating at least one of plaintiff?s essential elements; (2) by showing that plaintiff does not have, and cannot get, evidence to establish an essential element after fully exploring plaintiff’s case through discovery; or (3) by presenting evidence as to each element of an affirmative defense upon which defendant bears the burden of proof at trial.? Once the defendant’s initial burden is met, the burden shifts to the plaintiff to show by substantial evidence that a triable issue of material fact exists as to the claim or defense.? CCP ?437c; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851, 854.

This is a medical negligence action.? Defendant Mandel was Mrs. Gutierrez?s regular doctor from September 2009 through her death from pancreatic cancer in April 2014.? Defendant Le treated Erendira Gutierrez during a hospitalization in March 2011.? Both Defendants were aware of the findings of a CT angiogram of the thoracic and abdominal aorta conducted on Mrs. Gutierrez in March 2011.? The CT showed a diffuse prominence of the main pancreatic duct.? The radiologist reading the CT recommended a further study because of the anomaly.? Plaintiffs allege that Defendants failed to notify Mrs. Gutierrez of the study or the recommended follow-up and failed to refer Mrs. Gutierrez to any other physician for the recommended follow-up.? Mrs. Gutierrez was ultimately diagnosed with pancreatic cancer in January 2013 and died from the disease in April 2014.? Plaintiffs, her surviving husband and children, sued Mandel and Le for medical negligence based on the failure to follow-up on the March 2011 CT scan.

Defendants, separately, move for summary judgment based on the assertion that Plaintiffs cannot show causation?an essential element of Plaintiffs? medical negligence claim.? Defendant Mandel?s motion is based on the expert declaration of Dr. Van Scoy Mosher.? Defendant Le?s motion is based on the expert declaration of Dr. Okun.? Although provided by different physicians, the declarations arrive at essentially the same conclusion?Defendants? failure to follow-up on the March 2011 scan did not cause Mrs. Gutierrez?s death because the five-year survival rate of pancreatic cancer among the general population is less than 50%.? Plaintiffs counter those declarations with the expert declaration of Vera F. Dolan, an epidemiologist, who opines that given her gender, age, health, stage of cancer and length of survival with cancer, Mrs. Gutierrez had a 93% chance of living beyond the time of her death if the cancer had been diagnosed in March 2011.

In order to show causation, Plaintiffs must show that ?the death was ?more likely than not’ the result of the negligence.? Bromme v. Pavitt ?(1992) 5 Cal.App.4th 1487, 1499.) Generally, causation must be demonstrated by expert testimony. Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.? The parties offer competing expert declarations on the issue of causation.? Defendants? experts say that Mrs. Gutierrez had less than 50% chance of survival based on survival rates for pancreatic cancer among the general population.

The value of opinion evidence rests not in the conclusion reached but in the factors considered and the reasoning employed.? Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135-1136.? ?[E]ven when the witness qualifies as an expert, he or she does not possess a carte blanche to express any opinion within the area of expertise.?? Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117; Powell v. Kleinman ?(2007) 151 Cal.App.4th 112, 123.? An opinion which is speculative, lacking foundation, or without sufficient certainty can be excluded.? Id.? ?Moreover, an expert?s opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value because an expert opinion is worth no more than the reasons and facts on which it is based. [Citations.]?? Powell, 151 Cal.App.4th at 125.

Here, Dr. Van Scoy Mosher (Defendant Mandel?s expert) opines that nothing Dr. Mandel did or failed to do was a substantial factor in causing Mrs. Gutierrez? death. As set forth in his declaration, his opinion is based on the following statement:? ?Pancreatic cancer has a five-year overall survival rate below 20%. ?If the cancer is discovered at its earliest stage of IA, the three-year survival rate is approximately 40% and the five-year survival rate is approximately 30% with surgical treatment.?

Dr. Okun (Defendant Le?s expert) similarly opines that nothing Dr. Le did or failed to do was a substantial factor in causing Mrs. Gutierrez?s death.? As set forth in his declaration, his opinion is based on the following statement:? ?Pancreatic adenocarcinoma has a typical survival rate of less than 30% one year after diagnosis and less than five years after diagnosis. If the cancer is small and can be surgically resected, the survival rate is less still less [sic] than 50% at one year and less than 30% at five years.?

Both opinions are based on generalized statistical findings of outcomes among individuals diagnosed with pancreatic cancer.? The declarants do not provide any specifics regarding Mrs. Gutierrez?s cancer diagnosis or treatment.? They do not even specify what stage of cancer Mrs. Gutierrez had at the time of her diagnosis.? The declarants? opinions that she had less than 50% chance of survival are not based on any evidence or medical information specific to Mrs. Gutierrez.? Rather, in each case, the expert?s opinion on the issue of a causation consists of a recitation of the typical survival rate of pancreatic cancer among the general population and a determination that, based on that rate, Mrs. Gutierrez had less than a 50% chance of survival.

Both Defendants rely on Bromme v. Pavitt (1992) 5 Cal.App.4th 1487 to support their motions.? Bromme was a wrongful death action filed by a husband against a doctor for negligent failure to detect his wife?s colon cancer.? The case went to trial and evidence was introduced that if the cancer had been detected prior to June 1981 it could have been successfully treated but after June 1981, ?successful treatment became medically improbable.?? The trial court granted a partial nonsuit regarding any negligence after June 1981 when the chance of survival fell below 50%.? The partial nonsuit was upheld on appeal because ?California does not recognize a cause of action for wrongful death based on medical negligence where the decedent does not have a greater than 50 percent chance of survival had the defendant properly diagnosed and treated the condition.?? Bromme, 5 Cal.App.4th at 1504-1505

Bromme differs from this case, however, because the evidence used to determine probability in Bromme was specific to the decedent in the case.? The determination of medical probability was based on the location of the decedent?s tumor, its spread to adjacent lymph nodes, the number of lymph nodes involved and other medical information specific to the decedent?s cancer, not on generalized statistical information.

The Court finds that the opinions of Dr. Van Scoy Mosher and Dr. Okun are speculative, lacking foundation, or without sufficient certainty and, further, that Dr. Van Scoy Mosher and Dr. Okun failed to provide a ?reasoned explanation of why the underlying facts lead to the ultimate conclusion.?? Powell, 151 Cal.App.4th at 125.? Thus, even if the motions had not been opposed, the declarations do not support Defendants? requests for summary judgment and the motions must be denied.? See Powell, 151 Cal.App.4th at 123 (?Simply because the defendant doctor provides an unopposed declaration by an expert does not necessarily mean the court should grant summary judgment.?).

The motions were, however, opposed and Plaintiff offered the declaration of Vera F. Dolan on the issue of causation.? Defendant Mandel objects to Plaintiffs? expert on the ground that she is not a physician and is not, therefore, qualified to offer an opinion on causation.? (Defendant Le did not provide any reply.)

To begin with, in reviewing an expert’s declaration for purposes of summary judgment, a court should apply a liberal construction and resolve any doubts in favor of the party opposing summary judgment. Jennifer C. v. Los Angeles School Dist. (2008) 168 Cal.App.4th 1320, 1332.? Accordingly, the party moving for summary judgment has a greater responsibility to provide an expert declaration with a reasoned explanation than the party opposing the motion.? Powell, 151 Cal.App.4th at 125-126; see also Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 529.? Further, medical evidence does not necessarily have to be provided by a doctor.? Hernandez v. Amcord (2013) 215 Cal.App.4th 659, 675; see also People v. Catlin (2001) 26 Cal.4th 81, 131-132 (?[q]ualifications other than a license to practice medicine may serve to qualify a witness to give a medical opinion?).? In addition, as referenced above, the declarations of all the experts are more a matter of statistics than medicine and Plaintiff?s expert, unlike Defendants? experts, considers Mrs. Gutierrez? gender, ethnicity, general health and the time Mrs. Gutierrez? survived with pancreatic cancer to arrive at her opinion that Mrs. Gutierrez?s statistical life expectancy would have been significantly longer if the cancer had been diagnosed in March 2011.

The Declaration of Vera F. Dolan raises triable issues of fact precluding summary judgment.? See Plaintiffs? Responding Separate Statement of Disputed Material Facts in Opposition to Defendant Alyssa K. Le, M.D.?s Motion for Summary Judgment or, Alternatively, Summary Adjudication, UMFs 5, 6 and 7 and Plaintiffs? Responding Separate Statement of Disputed Material Facts in Opposition to Defendant Ronald Mandel, D.O.?s Motion for Summary Judgment, UMFs 4, 5, 6 & 7.

For the foregoing reasons, Defendants? Motions for Summary Judgment are DENIED.?

Plaintiffs? Requests for Judicial Notice are GRANTED as to item #1 (the death date of Erendira Gutierrez) and DENIED as to items #2, 3 and 4.

Defendant Mandel?s Evidential Objections are OVERRULED as to objections # 1-5 and SUSTAINED as to objections # 6-7.

30-2015-807579

Soberanis VS Mcanally

Defendant?s Motion to Compel Further Discovery Responses

Defendant James Walton McNally asks the court to compel Plaintiff Lorenzo Antonio Soberanis to provide further discovery responses to form interrogatory 6.7 from Defendant?s first set of form interrogatories.

The court GRANTS the motion and Defendant?s request for monetary sanctions.? Within 15 calendar days after service of notice of this ruling, Plaintiff shall provide further responses, without objection.? Plaintiff?s request for monetary sanctions is DENIED.

Defendant makes a prima facie showing of good cause for relief.? The interrogatory seeks information relevant to this personal injury action and Plaintiff?s need for future or additional treatments, if any, arising from the accident.

The burden shifts to Plaintiff to justify his objections and failure to respond.? In Opposition, Plaintiff raises three main arguments.

A.?????? Copies of Medical Records and Bills

First, Plaintiff argues that he has already provided copies of all medical records and bills in his possession.? He asserts that these medical records provide more than sufficient information regarding any future treatment recommendations.

However this argument fails.? In Reply, Defendant argues correctly that he is entitled to a direct answer to his question about future treatment, because information about recommended future treatment is not necessarily contained in prior medical records which normally only document past medical treatment.? While some future treatment may be discussed, it is not necessarily true that all future treatment will be set forth in writing.? Often future treatment will be discussed orally and will not have been set forth in writing.

In Reply, Defendant argues correctly that in his declaration, Plaintiff?s counsel fails to show that he has personal knowledge that the medical records do contain all future care recommendations involving Plaintiff, and that there were absolutely no oral communications between Plaintiff and his physicians detailing future treatment.

B.?????? Privilege Objection

Second, Plaintiff insists that his privilege objections based on attorney-client privilege and attorney work-product privilege are valid.? However, the problem with this argument is that the burden is on Plaintiff to produce a privilege log in order to invoke the privilege as to any responsive documents that he has chosen not to produce, to the extent he has chosen to produce documents rather than a written response.

Furthermore, Plaintiff fails to adequately explain how any such privileges could possibly apply to oral communications with his physicians regarding his future treatment.? Communications between patient and physician would not have involved an attorney.? Plaintiff argues that expert reports containing opinions and communications to an attorney are protected as work product.? (Petterson v. Superior Court (1974) 39 Cal.App.3d 267.)? However, Plaintiff cannot invoke the privilege as to unidentified documents in a vacuum.? Plaintiff is required to prepare a privilege log, but makes no showing that he has done so.

The court orders Plaintiff to produce a privilege log and to serve it both by personal service and by email on Defendant within 15 calendar days, identifying any responsive documents which are being withheld on the basis of privilege.

Plaintiff is ordered to prepare a privilege log specifically describing and identifying the documents, videotapes, or reports for which it is invoking these privileges.? (CCP 2031.240 (b) and (c).)? The information in the privilege log must be sufficiently specific to enable the court and opposing party to determine whether each withheld document is truly privileged.?? (Wellpoint Health Network Inc. v. Superior Court (1997) 59 Cal.App.4^th 110, 130; BP Alaska Exploration Inc. v. Superior Court (1988) 199 Cal.App.3d 1240, 1249.)

CCP 2031.240 clearly and expressly provides that if the responding party objects on the basis of privilege, then he or she must set forth sufficient factual information to permit the court and opposing party to evaluate the merits of the claim, including a privilege log if necessary.? However, this was not done here and the court deems it necessary for Plaintiff to prepare a privilege log.

In Reply, Defendant argues correctly that as a general rule, the identity and opinions of treating physicians are not privileged.? (Schreiber v. Estate of Kiser (1999) 22 Cal.4^th 31, 38.)? Here, Defendant is seeking information about future treatment that Plaintiff discussed with his treating physicians, not expert opinions solicited by Plaintiff?s counsel.

C.?????? Further Responses Already Produced

Third, Plaintiff argues that the motion is moot, except as to monetary sanctions, because he has already served an amended response to Form Rog 6.7.? However, Plaintiff fails to submit any documentary proof to show what responses he served and when, and whether they complied with the statutory requirements.

In Reply, Defendant represents that the supplemental responses were UNVERIFIED and notes correctly that unverified responses are tantamount to no responses at all.? (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 635-636.)

Accordingly, the court GRANTS the motion to compel further responses for the reasons set forth in Defendant?s separate statement and memo in support.

D.?????? Requests for Monetary Sanctions

The court GRANTS Defendant?s request for $1,775 in monetary sanctions, which amount the court deems to be reasonable.? Accordingly, Plaintiff is ordered to pay said sanctions to Defendant, through Defendant?s counsel of record, within 15 calendar days after service of notice of this ruling.

Plaintiff?s request for $1,250 in monetary sanctions is DENIED.