Rayhan vs. Memorial Health Services

Defendants contend that Plaintiffs filed and served their opposition papers in an untimely manner.

However, Plaintiffs’ opposition papers were filed and served on July 7, 2026, nine court days before the hearing, as required by Section 1005(b). (See ROA #379, #381.)

Further, the Civil Procedure Code allows opposition papers to “be served by personal delivery, facsimile transmission, express mail, or other means consistent with Sections 1010, 1011, 1012, and 1013, and reasonably calculated to ensure delivery to the other party or parties not later than the close of the next business day after the time the opposing papers or reply papers, as applicable, are filed.” (Code Civ. Proc., § 1005, subd. (b).)

Plaintiffs served their opposition papers by electronic mail, which is considered the equivalent of facsimile or express mail service, and is reasonably calculated to ensure delivery by the close of the next business day after the papers were filed. (See Code Civ. Proc., § 1010.6, subd. (a)(3)(A) [“If a document may be served by mail, express mail, overnight delivery, or facsimile transmission, electronic service of that document is deemed complete at the time of the electronic transmission of the document or at the time that the electronic notification of service of the document is sent.”]; see also Code Civ. Proc., § 1010.6, subd. (b)(2) [“A person represented by counsel, who has appeared in an action or proceeding, shall accept electronic service of a notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission.”].)

Therefore, Plaintiffs’ opposition papers were not filed or served in an untimely manner and the court will consider them.

Standard for Discovery Sanctions

The trial court has expansive authority over discovery issues. (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 596.)

This authority includes the power to impose monetary, issue, evidence, terminating, or contempt sanctions against any person engaging in any misuse of the discovery process. (See Code Civ. Proc., § 2023.030, subd.s (a)-(e).)

Misuse of the discovery process includes, but is not limited to, using a discovery method in a manner that does not comply with its specified procedures; employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden; failing to submit or to respond to an authorized method of discovery; and disobeying a court order to provide discovery. (See Code Civ. Proc., §§ 2023.010, 2030.300, subd. (e) [interrogatories], 2031.310, subd. (i) [requests for production of documents], 2033.290, subd. (e) [requests for admissions].)

In addition, “[t]he court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.” (Code Civ. Proc., § 2023.030, subd. (c); see also Lee v. Lee (2009) 175 Cal.App.4th 1553, 1559.)

Terminating sanctions are one of the most severe forms of sanctions and are imposed by: (1) striking out the pleadings, or parts of the pleadings, of any party engaging in the misuse of the discovery process, (2) staying further proceedings by that party until an order for discovery is obeyed, (3) dismissing the action, or any part of the action, or (4) rendering judgment by default against that party. (Code Civ. Proc., § 2023.030, subd. (d).)

“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.’” (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390, quoting Lang v. Hochman (2000) 77 Cal.App.4th 1225,1246.)

In order to impose terminating sanctions, the party subject to sanctions must have failed to comply with previously issued court orders and the failure must be willful. (See Lee v. Lee (2009) 175 Cal.App.4th 1553, 1559 [“[A]bsent unusual circumstances, such as repeated and egregious discovery abuses, two facts are generally prerequisite to the imposition of a nonmonetary sanction. There must be a failure to comply with a court order and the failure must be willful.”].)

However, “[s]ome courts have held that the more serious sanctions may be imposed . . . even where no specific order has been violated, but those cases have involved repeated and willful refusals to permit discovery or produce documents over a lengthy period of time which resulted in evidence becoming unavailable.” (Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390, 1399.)

As the Court of Appeal has explained:

[T]he courts have long recognized that the terminating sanction is a drastic penalty and should be used sparingly. A trial court must be cautious when imposing a terminating sanction because the sanction eliminates a party’s fundamental right to a trial, thus implicating due process rights. The trial court should select a sanction that is “tailor[ed] . . . to the harm caused by the withheld discovery.”

(Lopez v. Watchtower Bible and Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604, citations omitted, quoting Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.)

“The discovery statutes thus ‘evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. Although in extreme cases a court has the authority to order a terminating sanction as a first measure, a terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective.” (Lopez v. Watchtower Bible and Tract Society of New York, Inc., supra, 246 Cal.App.4th at pp. 604- 605, quoting Doppes v. Bentley Motors, Inc., supra, 174 Cal.App.4th at p. 992, italics original; see also Los Defensores, Inc. v. Gomez, supra, 223 Cal.App.4th at p. 390 [“[A] decision to order terminating sanctions should not be made lightly.”].)

“The purpose of discovery sanctions ‘is not to provide a weapon for punishment, forfeiture and the avoidance of a trial on the merits’ but to prevent abuse of the discovery process and correct the problem presented.” (Parker v. Wolters Kluwer U.S., Inc. (2007) 149 Cal.App.4th 285, 301, citations omitted, quoting Caryl Richards Inc. v. Superior Court (1961) 188 Cal.App.2d 300, 303; see In re Marriage of Chakko (2004) 115 Cal.App.4th 104, 109 [“In exercising its broad discretion to sanction discovery abuses, the trial court may impose any sanction authorized by statute that will enable the party seeking discovery to obtain the objects of the discovery sought.”].)

Thus, “[a] discovery sanction may not place the party seeking discovery in a better position than it would have been in if the desired discovery had been provided and had been favorable.” (Rail Services of America v. State Compensation Ins. Fund (2003) 110 Cal.App.4th 323, 332.)

In addition, “[d]iscovery sanctions ‘should be appropriate to the dereliction, and should not exceed that which is required to protect the interest of the party entitled to but denied discovery.’” (Doppes v. Bentley Motors, Inc., supra, 174 Cal.App.4th at p. 992, quoting Laguna Autobody v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 487.)

For example, terminating sanctions are warranted where a party repeatedly failed to respond to discovery responses for nearly one year, and disregarded two court orders, including one order warning that terminating sanctions would be the next step. (Jerry’s Shell v. Equilon Enterprises, LLC (2005) 134 Cal.App.4th 1058, 1069.)

Expert Discovery

Here, Defendants seek terminating sanctions, arguing that Plaintiffs failed to comply with Civil Procedure Code section 2034.415, which provides that:

An expert . . . whose deposition is noticed pursuant to Section 2025.220 shall, no later than three business days before his or her deposition, produce any materials or category of materials, including any electronically stored information, called for by the deposition notice.

(Civ. Proc. Code, § 2034.415.)

Defendants contend that Plaintiffs did not produce any of these materials with respect to Rabbi Jonathan Weiner and that they produced a voluminous amount of materials the evening before and the day of the deposition of Dr. Ashraf Elsayegh.

However, Defendants never moved to compel production of these materials with respect to Rabbi Weiner nor did they move to compel the further deposition of Dr. Elsayegh to allow them time to review the produced materials.

Defendants also did not move for monetary sanctions for Plaintiffs alleged violation of Section 2034.415.

Thus, there is no court determination that Plaintiffs have misused the discovery process and any request for such a

determination must be made to Department CM02, which will handle all discovery disputes in this case.

That is the crux of the difficulty with this motion. Defendants have not shown that Plaintiff have violated an existing court order (as opposed to a discovery statute or rule).

Defendants have also failed to establish that Plaintiffs engaged in repeated and willful violations of the Civil Discovery Act over a lengthy period of time. If anything, the fact that Plaintiffs produced a substantial materials for Dr. Elsayegh, albeit untimely, implies that their violations were not willful.

Further, granting terminating sanctions, or even evidentiary sanctions, at this time would not be consistent with the incremental approach that courts must take with respect to discovery sanctions.

Defendants have not compelled the production of missing materials or requested monetary sanctions with respect to either Rabbi Wiener or Dr. Elsayegh.

In addition, Defendants moved forward with the depositions of both expert witnesses but, after their depositions, did not request an additional opportunity to depose them after having a reasonable opportunity to review the materials produced or to be produced by them. (See Decl. of Dilkash A. Khan, Esq. (Khan Decl.), ¶¶ 9, 12-13, Exh.s 6, 8.)

These measures could have addressed Defendants’ issues without the drastic remedy of evidentiary sanctions or terminating sanctions.

Such sanctions are generally reserved for cases in which a party persists in willfully disobeying the court’s discovery orders.

Therefore, the court will deny the motion for sanctions.

Plaintiffs shall give notice of this ruling.

Motion for Leave to Amend

Plaintiffs David Rayhan, M.D.’s and Syrus Rayhan, M.D.’s Motion for Leave to File Third Amended Complaint is GRANTED.

Plaintiffs David Rayhan, M.D. and Syrus Rayhan, M.D. are ORDERED to file with the court and serve on all parties to this action the Proposed Plaintiffs’ Third Amended Complaint, attached to the Motion for Leave to File Third Amended

Complaint, and to file the appropriate proof(s) of service, within 30 days of this ruling.

Pending Motion

Plaintiffs David Rayhan and Syrus Rayhan move for leave to file the Proposed Plaintiffs’ Third Amended Complaint (TAC), attached to the Motion for Leave to File Third Amended Complaint.

Standard for Leave to Amend

The Civil Procedure Code provides that:

The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.

(Code Civ. Proc., § 473, subd. (a)(1).)

Leave to amend should be granted liberally at all stages of the proceedings in order to accomplish substantial justice for both parties and to resolve cases on their merits. (See Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 488-489; IMO Development Corp. v. Dow Corning (1982) 135 Cal.App.3d 451, 461.)

As the Court of Appeal has explained:

[T]rial courts should be guided by two general principles: (1) whether facts or legal theories are being changed and (2) whether the opposing party will be prejudiced by the proposed amendment. Frequently, each principle represents a different side of the same coin: If new facts are being alleged, prejudice may easily result because of the inability of the other party to investigate the validity of the factual allegations while engaged in trial or to call rebuttal witnesses. If the same set of facts supports merely a different theory – for example, an easement as opposed to a fee – no prejudice can result.

(City of Stanton v. Cox (1989) 207 Cal.App.3d 1557, 1563.)

With respect to the first requirement, “[t]he basic rule applicable to amendments to conform to proof is that the amended pleading must be based upon the same general set of facts as those upon which the cause of action or defense as originally pleaded was grounded.” (Union Bank v. Wendland (1976) 54 Cal.App.3d 393, 400-401.) In other words, “[t]he power to permit amendments is interpreted very liberally as long as the plaintiff does not attempt to state facts which give rise to a wholly distinct and different legal obligation against the defendant.” (Herrera v. Superior Court (1984) 158 Cal.App.3d 255, 259.)

With respect to the second requirement, prejudice that may support denying amendment includes “delay in trial, loss of critical evidence, or added costs of preparation.” (Solit v. Tokai Bank, Ltd. New York Branch (1999) 68 Cal.App.4th 1435, 1448.)

Thus, “[t]he law is [] clear that even if a good amendment is proposed in proper form, unwarranted delay in presenting it may — of itself — be a valid reason for denial.” (Roemer v. Retail Credit Co. (1975) 44 Cal.App.3d 926, 939-940; see also Bedolla v. Logan & Frazer, supra, 52 Cal.App.3d at p. 136 [“The law is well settled that a long deferred presentation of the proposed amendment without a showing of excuse for the delay is itself a significant factor to uphold the trial court's denial of the amendment.”].)

The trial court has wide discretion in determining whether to allow amendment, but “the appropriate exercise of that discretion requires the trial court to consider a number of factors: ‘including the conduct of the moving party and the belated presentation of the amendment.’” (Leader v. Health Ind. of America, Inc. (2001) 89 Cal.App.4th 603, 613, quoting Bedolla v. Logan & Frazer (1975) 52 Cal.App.3d 118, 135-136, italics original.)

Here, Plaintiffs seek leave to file the TAC to add additional facts and clarify allegations based on information obtained through investigation and discovery, and to add one additional claim for statutory violations.

The amendments are based upon the same general set of facts as those upon which prior the complaints were grounded, which relates to Defendants’ treatment of Plaintiff Syrus Rayhan, M.D.

The Court of Appeal has held that it would be an abuse of discretion to deny amendment of the complaint under these circumstances. (See Rainer v. Buena Community Memorial Hosp. (1971) 18 Cal.App.3d 240, 254 [“[I]t would constitute an abuse of discretion not to permit the amendment of a

complaint even at the outset of a trial, where the amendment merely adds a new theory of recovery on the same set of facts constituting the cause of action.”].)

Defendants contend that Plaintiffs do not specify when the information giving rise to the new allegations were discovered or why the motion for leave to amend was not brought earlier.

However, Plaintiffs submitted evidence that the new information was discovered during the deposition of Annabella Braun, which was not taken until February 4, 2026. (See Decl. of Benjamin J. Fenton, Esq. in Supp. of Pltf.’s Reply in Supp. of Mot. for Leave to File Third Amend. Compl., ¶¶ 4-14, Exh. A.)

It is an abuse of discretion to refuse amendment where that “results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense.” (Morgan v. Superior Court, supra, 172 Cal.App.2d at p. 530.)

This is true even if leave to amend is sought as late as the time of trial or even during trial. (See Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565; Rainer v. Community Memorial Hosp. (1971) 18 Cal.App.3d 240, 251-256.) Thus, “[i]n the furtherance of justice, trial courts may allow amendments to pleadings and if necessary, postpone trial.” (Honig v. Financial Corp. of America (1992) 6 Cal.App.4th 960, 965.)

Defendants next argue that that granting leave to amend “would necessitate re-opening depositions and revisiting expert analyses all at substantial expense and with disruption to the case schedule.” (Def.s’ Opp’n to Pltf.s’ Mot. for Leave to Amend the Compl. for the Third Time at pp. 8:15-16.)

However, any amendments that add new claims have the potential to create this type of prejudice. This is not the type of undue prejudice that would support denial of the motion, but rather the normal and expected consequence of having additional claims asserted against a party.

Defendants have not presented any evidence that the proposed amendments would unfairly increase the costs of discovery or trial preparation upon them, particularly as the trial is not set for another 8 months.

The Court of Appeal has made it clear that it is “an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045,

1048; see also Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530 [”If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend . . . .”], citations and quotations omitted.)

Defendant also attacks the validity of the claims asserted in the TAC.

However, where the non-moving party argues that a proposed pleading is futile, “[l]eave to amend should be denied only where the facts are not in dispute, and the nature of the plaintiff’s claim is clear, but under substantive law, no liability exists and no amendment would change the result.” (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.)

Even where the amended pleading puts forth a novel legal theory, “the preferable practice would be to “permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.)

Here, the critical facts are in dispute and it is not clear, based on undisputed facts, that Plaintiffs’ additional claim for statutory violations will fail.

In any case, Defendants will still have the opportunity to challenge the new claim once the TAC is filed.

Therefore, the court will grant the motion for leave to amend.

Plaintiffs shall give notice of these rulings.

7 NM Law, APC vs. Motion to Set Aside Default Cano Defendant Sharon Rachelle Cano’s Motion to Set Aside Default and Default Judgment is CONTINUED to November 2, 30-2024-01430114 2026 at 9:00 a.m. in Department N15.

Defendant Sharon Rachelle Cano is ORDERED to serve upon Plaintiff NM Law, APC all of the motion papers for the Motion to Set Aside Default and Default Judgment and file the appropriate proof of service within 30 days of this ruling.

Pending Motion

Defendant Sharon Rachelle Cano moves to set aside the entry of default and default judgment entered against her. (See ROA #45.)