Judge Armen Tamzarian, Case Number: 21STCV34431, Date: 2023-12-18 Tentative Ruling

Judge: Armen Tamzarian, Case: 21STCV34431, Date: 2023-12-18 Tentative Ruling

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Case Number: 21STCV34431 Hearing Date: January 25, 2024 Dept: 52

Cross-Defendant Cynosure, LLC’s Motions to Compel Further Responses to (1) Requests for Production and (2) Special Interrogatories

Requests for Production

Cross-defendant Cynosure, LLC (Cynosure) moves to compel cross-complainant Tarzana Medical Urgent Care (Tarzana) to further respond to request for production Nos. 7-27 and 29-36. Cynosure’s memorandum of points and authorities refers to additional requests. The required separate statement, however, includes only 29 requests, erroneously numbered 1-29. They are request Nos. 7-27 and 29-36. The court will only address those requests.

A party propounding requests for production may move to compel further responses if “[a] statement of compliance with the demand is incomplete,” “[a] representation of inability to comply is inadequate, incomplete, or evasive,” or “[a]n objection in the response is without merit or too general.” (CCP § 2031.310(a).)

A. Proper Objection to No. 31

Tarzana properly objected to request No. 31. Cynosure requested “all state and federal tax returns YOU have filed in the past seven (7) years.” Tarzana objected based on the tax return privilege. (Weingarten v. Superior Court (2002) 102 Cal.App.4th 268, 274.) Cynosure does not establish any exception to the privilege.

Tarzana’s objection to request No. 31 based on the tax return privilege is sustained.

B. Meritless and Frivolous Objections

Tarzana made meritless objections to the remaining disputed requests for production. Generally, the responding party bears the burden of justifying its objections. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) To each request, Tarzana made boilerplate objections that do not and cannot apply. Many are frivolous. For example, it objected based on “[c]lergy privilege”, “[s]pousal communication privilege”, and “[m]arital testimony privilege.” As a corporate entity, Tarzana has none of these privileges.

Tarzana also objected that “[t]he information requested is equally available,” which is not a valid objection to requests for production. It only applies to interrogatories when “the responding party does not have personal knowledge sufficient to respond fully.” (CCP § 2030.220(c).) Tarzana further objected based on attorney-client privilege and work product to requests such as “Produce all advertisements and marketing material created by YOU for YOUR services...” (No. 12) and “Produce all documents and communications related to training you received concerning Sculpsure” (No. 17). Those cannot be protected by attorney-client privilege or work product.

Tarzana also objected based on patients’ privacy rights. “The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 552.) If the objecting party shows all three elements, then the court must balance the need for disclosure against the right to privacy. (Ibid.) The court may consider “the availability of alternatives and protective measures.” (Id. at p. 556.)

Tarzana meets the three elements under Williams. Cynosure, however, has a strong need to discover the responsive documents. The gravamen of Tarzana’s first amended cross-complaint against Cynosure is that its Sculpsure laser system does not work as advertised. Tarzana alleges, “Tarzana used the Sculpsure Laser System on numerous patients. None of Tarzana’s patients saw results. None of Tarzana’s patients were satisfied.” (FACC, ¶ 26.) Tarzana thus put its patients’ satisfaction at issue.

Cynosure proposed a fair way to preserve the patients’ privacy rights. It proposed a protective order and HIPAA order (Schaeffer Decl., ¶ 3, Exs. 2-3) under which Tarzana would redact identifying information and instead using unique numbers for each patient. Doing so fully protects patients’ privacy rights.

Tarzana does not justify any of its remaining objections. Cynosure shows good cause for its requests. All requests are reasonably particularized categories and are reasonably calculated to lead to the discovery of admissible evidence.

Tarzana’s objections to requests for production Nos. 7-27, 29, 30, and 32-36 are overruled.

C. Incomplete Statements of Compliance

Tarzana also made incomplete statements of compliance in response to Nos. 12 and 13. Substantively, it responded: “Responding Party refers Propounding Party to its website at https://marbellamedicalspa.com.”

A statement of compliance must state that “all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.” (CCP § 2031.220.) A statement of compliance must include that precise language because it states under oath not only that the responding party will produce specified documents, but also that the responding party is not withholding any responsive documents. Merely identifying some documents or providing a website’s address is insufficient.

Special Interrogatories

Cynosure moves to compel Tarzana to further respond to special interrogatory Nos. 1, 3-5, 7-9, 11, and 13. Cynosure’s memorandum of points and authorities refers to additional interrogatories. Its required separate statement, however, includes only 9 interrogatories, erroneously numbered 1-9. They are interrogatory Nos. 1, 3-5, 7-9, 11, and 13. The court will only address those interrogatories.

A party propounding interrogatories may move to compel further responses when an answer “is evasive or incomplete,” “[a]n exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate,” or “[a]n objection to an interrogatory is without merit or too general.” (CCP § 2030.300(a).)

A. Proper Objection and Response to No. 13

Tarzana gave a valid response to special interrogatory No. 13. The interrogatory asks Tarzana to describe all communications between it and others concerning any of the matters alleged in its complaint. Tarzana responded with many objections, including attorney-client privilege, and substantively responded, “Responding Party had communications with counsel which are privileged.”

Given the applicable privilege, that response is complete and direct response. Whether the response is true is a question of credibility, not whether Tarzana complied with the Civil Discovery Act. (See Saxena v. Goffney (2008) 159 Cal.App.4th 316, 333 [“serving a willfully false answer to an interrogatory” is “not specifically covered by the Civil Discovery Act”].)

In its separate statement, Cynosure argues, “To the extent Cross-Complainant is asserting that all responsive documents are protected by attorney-client privilege, it is required to serve a privilege log.” (Sep. Statement, p. 17, citing CCP § 2030.240.) This is an interrogatory, not a request for production of documents. Tarzana gave “the specific ground for the objection” and stated “the particular privilege invoked” as required. (CCP § 2030.240(b).) A privilege log is not required for interrogatories. (Compare § 2030.240 with § 2031.240(c).)

Tarzana’s objection to special interrogatory No. 13 based on attorney-client privilege is sustained.

B. Meritless Objections

Tarzana made meritless objections to the remaining interrogatories. It made the same boilerplate, inapplicable objections as in its responses to Cynosure’s requests for production. Tarzana does not justify these objections.

Tarzana further objected that the interrogatories are compound. “No specially prepared interrogatory shall contain subparts, or a compound, conjunctive, or disjunctive question.” (CCP § 2030.060(f).) This rule’s purpose is to “ ‘prevent evasion of the statutory limit on the number of interrogatories that one party may propound to another.’ ” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1288.) Though some of the interrogatories ask for multiple types of information, each concerns a single subject. (See id. at p. 1291.) These interrogatories are permitted.

For Tarzana’s privacy objections, Cynosure proposed a fair way to protect patients’ rights as discussed above. Answering the questions by using unique identifying numbers for patients instead of their names and withholding their contact information will adequately protect their privacy.

Tarzana’s remaining objections are overruled.

C. Evasive or Incomplete Responses

Tarzana also gave incomplete or evasive responses to the interrogatories. For example, No. 5 asks Tarzana to describe the research or due diligence it undertook regarding Sculpsure before purchasing it. Substantively, Tarzana responded, “Responding Party relied upon the representations and warranties provided by Propounding Party through its representative. In addition, at least on one occasion, TMUC attempted to contact another practitioner who was referred to TMUC by a representative of Propounding Party but such effort was not successful.” Referring to “another practitioner” without identifying that individual is an incomplete response.

No. 9 asks: “Describe the losses that YOU contend are the result of the alleged misrepresentations related to Sculpsure, including by identifying each person who has allegedly sustained those losses, the amount of those losses, and your methodology for calculating those losses.” Substantively, Tarzana responded, “The losses include but are not limited to the accelerated depreciated value paid for the useless device (which as evidence in this litigation was apx. $15,000 after three years), the loss of reputation and the loss of existing disappointed clients.” Stating what the losses “included but are not limited to” is incomplete and evasive. Tarzana also identified two categories of loss without specifying any amount or the basis for calculating that amount.

Tarzana gave a similarly incomplete response to No. 11. That interrogatory asks Tarzana to identify all people who declined to use its services due to defects with the Sculpsure laser. Substantively, Tarzana responded, “Responding Party had many clients cancel and/or request refund and/or offered credit in the form of other services.” Answering “many clients” is incomplete and evasive. As discussed above, Tarzana’s privacy objection applies to protect patients’ names and contact information. But a complete and straightforward answer requires giving the number of clients, not just stating “many.”

Disposition

Cross-defendant Cynosure, LLC’s motion to compel further responses to requests for production is granted in part. Cross-complainant Tarzana Medical Urgent Care is ordered to provide further verified responses without objections to request for production Nos. 7-27, 29, 30, and 32-36 within 30 days. Tarzana Medical Urgent Care shall produce all responsive documents in its possession, custody, or control concurrently with its further written responses. Tarzana Medical Urgent Care shall redact all patients’ personal identifying information and instead use a unique number for each patient.

Cross-defendant Cynosure, LLC’s motion to compel further responses to special interrogatories is granted in part. Cross-complainant Tarzana Medical Urgent Care is ordered to provide further verified responses without objections to special interrogatories Nos. 1, 3-5, 7-9, and 11 within 30 days. Tarzana Medical Urgent Care shall redact all patients’ personal identifying information and instead use a unique number for each patient.