Daniel Fujikawa vs Cottage Health

Case Number

19CV03048

Case Type

Hearing Date / Time

Mon, 10/07/2024 - 10:00

Nature of Proceedings

Motion: Compel

Tentative Ruling

Because of health issues encountered by plaintiffs’ counsel, the parties have stipulated to a series of continuances of the Mandatory Settlement Conference and Trial Confirmation Conference dates. The Trial Confirmation Conference is currently set for June 16, 2025. While regular discovery has long been closed in this action, defense counsel has submitted a declaration asserting that, because of the extended delay in resolving the action, counsel for both parties agreed that limited follow-up discovery related to plaintiff’s damages could be conducted. In response to this agreement, defendant served Requests for Production of Documents (Set 3) on June 3, 2024. Plaintiff has not responded to the requests, has not sought any extension of time to respond, and has not sought to narrow the scope of discovery. Defendant has therefore filed the current motion to compel, which in its caption mis-identifies the discovery at issue as the Request for Production of Documents (Set No. One).

The Court accepts defendant’s representation that the parties agreed to conduct such further limited discovery with respect to plaintiff’s damages. The Court notes, however, that both the document request at issue (Set 3) and the motion to compel responses, were electronically served upon plaintiff’s counsel at an email address (howardkapp@gmail.com) which differs from that which is reflected on the last document filed in this case by plaintiff’s attorney and which is reflected in the court’s case management system as the email address of record for Mr. Kapp (hkapp@kapplaw.com). That discrepancy could potentially explain the failure by Mr. Kapp to respond to the discovery, and to respond to the motion to compel.

Since the Court therefore has no assurance that Mr. Kapp ever received either the actual discovery request or the motion to compel response to it, the Court is unable to consider the motion on its merits at this time.  

The Court will therefore continue the hearing on the motion to November 4, 2024, at 10:00 a.m., in Department 5 of this court, with instructions to defendant to provide evidence to the Court that Mr. Kapp was properly electronically served with both the discovery requests and the motion to compel at a valid email address, or other evidence showing that Mr. Kapp actually received the discovery request and the motion to compel, no later than October 28, 2024, also properly serving that document upon Mr. Kapp. If such evidence is provided, the Court will evaluate it in determining whether the hearing can go forward on its merits at that time. If no such evidence can be provided, or if the evidence does not satisfy the Court that service was properly effectuated upon Mr. Kapp, the motion will be denied.

As an alternative, defendant can take the motion off calendar and choose to re-serve the discovery both electronically and through the mailing of a hard copy, in order to remove any doubt that Mr. Kapp received the discovery.