Judge: Barbara M. Scheper, Case: 21STCV12764, Date: 2023-03-01 Tentative Ruling

Case Number: 21STCV12764    Hearing Date: March 1, 2023    Dept: 30

Dept. 30

Calendar No.

Nourani vs. Malik, et. al., Case No. 21STCV12764

Tentative Ruling re:  Plaintiff’s Motion to Compel Further Discovery Responses; Request for Sanctions

Plaintiff Dr. Bobby Nourani (Plaintiff) moves for an order compelling Defendant The Regents of the University of California (Regents) to produce further responses to the Form Interrogatories – Employment Law, and compelling Regents and Defendant Shaista Malik (Malik) to produce further responses to their respective Demands for Production of Documents (Set Two). The motion is granted  Defendants are ordered to serve supplemental verified responses to the Form Interrogatories and produce the documents requested within ten (10) days of today’s date.

A motion to compel further responses to form or specially prepared interrogatories may be brought if the responses contain: (1) answers that are evasive or incomplete; (2) an unwarranted or insufficiently specific exercise of an option to produce documents in lieu of a substantive response; or (3) unmerited or overly generalized objections. (Code Civ. Proc., § 2030.300, subd. (a).)

A party may move for an order compelling further response to a request for production of documents if the demanding party deems that responses are incomplete, evasive, or contain meritless objections. (Code Civ. Proc., §§ 2031.310, subd. (a).)  A motion to compel further responses to an inspection demand “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) 

“For discovery purposes, information is relevant if it ‘might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement.’ [Citation]. Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. [Citation] These rules are applied liberally in favor of discovery.” (Gonzales v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.)

Plaintiff’s Complaint asserts claims against Defendants for defamation, FEHA gender and religion discrimination, and blackballing. Plaintiff, who was formerly employed by the University of California, Irvine School of Medicine, alleges that Defendants fabricated a patient sexual assault complaint against him, leading to his suspension, the non-renewal of his employment contract, and significant harm to his career.

Plaintiff served the Form Interrogatories – Employment Law on Defendants on December 13, 2021. (Cohen Decl. ¶ 2.) Defendants served initial responses on March 7, 2022. (Cohen Decl. ¶ 3.) Plaintiff’s counsel told Defendants’ counsel that the responses were deficient, and on April 1, 2022, Defendants’ counsel agreed to provide further responses. (Cohen Decl. ¶¶ 3-4.) Defendants served the supplemental responses on January 23, 2023. (Cohen Decl. ¶ 7.) Plaintiff argues that the supplemental responses remain deficient.

Plaintiff first seeks to compel Defendants’ further responses to Form Interrogatory Nos. 201.1, 201.4, 206.2, 206.3, 211.1, 215.1, and 216.1. Defendants only oppose the motion as to Nos. 215.1 and 216.1, and state that they will provide a second set of supplemental responses to the remaining interrogatories. (Opposition p. 15:14.)

Form Interrogatory No. 215.1 asks Defendants whether “you or anyone acting on your behalf” has interviewed any individual concerning the “adverse employment action,” and to identify the interviewee, the interviewer, and the date of the interview. Defendants’ response objected based on ambiguity and attorney-client privilege, and otherwise stated that “a response to this interrogatory would necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from the documents,” and  that Defendants “refer[] Plaintiff to the University of California, Irvine’s Office of Equal Opportunity and Diversity (‘OEOD’) Investigation Report, which is bates labeled REGENTS-Nourani 2340-3043.” The Court finds that this information, as it concerns potential witnesses, is relevant for purposes of discovery. Defendants have not substantiated their objections based on ambiguity or attorney-client privilege.

Form Interrogatory No. 216.1 asks Defendants to identify all facts, witnesses, and documents supporting each of their affirmative defenses. For each of their 29 affirmative defenses, Defendants’ responses either identified largely identical sets of facts, witnesses, and documents, or did not provide any information while stating that discovery was ongoing. The Court agrees with Plaintiff that these boilerplate responses are improper.

Accordingly, the motion is granted as to all Form Interrogatories – Employment at issue (Nos. 201.1, 201.4, 206.2, 206.3, 211.1, 215.1, and 216.1).

On November 7, 2022, Plaintiff served separate sets of Demands for Production (Set Two) on Regents and Malik. Defendants served their responses on December 23, 2022. (Cohen Decl. ¶ 9.)

In both sets of Demands, Request Nos. 1 through 6 seek “[t]he electronic health records (including but not limited to MyChart, CareEverywhere, electronic communications between patient and provider, electronic communications between patient and clinic staff, and electronic communications between provider to provider)” for each of the six patients that were contacted as part of UCI’s Office of Equal Opportunity and Diversity (OEOD) investigation into the sexual assault accusations against Plaintiff.

Defendants objected to each of these Requests as overbroad, vague, and ambiguous, burdensome, irrelevant, subject to attorney-client privilege, and as infringing upon third-party privacy. Defendants argue that disclosure of the information is prohibited by the federal Health Insurance Portability and Accountability Act (HIPPA) and California’s Confidentiality of Medical Information Act (CMIA).

HIPPA prohibits the disclosure of “protected health information” by “covered entities.” (45 C.F.R. §§ 160.103, 164.502.) HIPPA provides for certain situations where “[a] covered entity may use or disclose protected health information without the written authorization of the individual . . . or the opportunity for the individual to agree or object . . .” (45 C.F.R. § 164.512.)

Clearly, the Defendants could have agreed to submit a proposed order to the Court requiring the release of the documents.  Defendants failed to do that and also refused to provide Plaintiff’s counsel with information that would allow him to notify the patients and seek their approval for release of the records.  Defendants cannot have it both ways.

Finally, Plaintiff moves to compel Regent’s further responses to Request No. 8, and Defendant Shaista Malik’s further responses to Request Nos. 7-10. Regent’s Request No. 8 and Malik’s Request No. 7 each seek  “[a]ll DOCUMENTS reviewed, considered, used, read, or relied upon” in Malik’s decision “to report an alleged patient complaint against Plaintiff to the Incident Response Team (‘IRT’).”

As to Malik only, Request No. 8 seeks all documents reviewed or relied upon in Malik’s decision to report a patient complaint against Plaintiff to the OEOD. Request No. 9 seeks all documents reviewed or relied upon in Malik’s decision to not renew and/or terminate Plaintiff’s contract. Request No. 10 seeks all documents reflecting communications between Malik and the IRT concerning Plaintiff.  Defendants objected to the Requests on various grounds, and then responded that Malik “does not have the health records of third-parties, including the third-party identified in this request, within her personal possession, custody, or control.” These responses are clearly inapposite and appear to be in error. Defendants do not oppose the motion as to these requests, and state that they will provide further supplemental responses. (Opposition pp. 14-15.)

Plaintiff requests sanctions against Defendants and their counsel for their abuse of the discovery process.  The Court agrees that Defendants’ position is without merit and appear to be designed solely to cause delay.  Furthermore, Defendants’ opposition to the instant motion is without substantial justification.  Accordingly, the Court orders Defendants and Defendants’ counsel to pay $10,528.35 within thirty (30) days of today’s date.