Judge Curtis A. Kin, Case 22STCV13687 2023-01-26 Tentative Ruling

Judge: Curtis A. Kin, Case: 22STCV13687, Date: 2023-01-26 Tentative Ruling

Case Number: 22STCV13687 Hearing Date: January 26, 2023 Dept: 72

MOTION TO COMPEL FURTHER RESPONSES TO:

(1) SPECIAL INTERROGATORIES, SET ONE; AND

(2) REQUESTS FOR PRODUCTION, SET ONE

Date: 1/26/23 (8:30 AM)

Case: Tomecie Ydette Crockam v. Providence Health System (22STCV13687)

TENTATIVE RULING:

Plaintiff Tomecie Ydette Crockam’s Motion to Compel Further Responses to Special Interrogatories, Set One is GRANTED IN PART.

Plaintiff Tomecie Ydette Crockam’s Motion to Compel Further Responses to Requests for Production, Set One is GRANTED IN PART.

I. MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET ONE

Plaintiff Tomecie Ydette Crockam, by and through her successor in interest Naomi Washington, moves to compel further responses from defendant Providence Health System – Southern California to Special Interrogatories, Set One, Nos. 1-4, 6-14, 22, 24, 26, 31, and 32.

After the filing of the motion, defendant served supplemental responses, thereby causing plaintiff to conditionally withdraw the motion as to Nos. 1-4, 6-14, and 26, subject to receiving verifications for defendant’s responses. (See Reply at 2; Partain Reply Decl. Ex. 1) “Unsworn responses are tantamount to no responses at all.” (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.) Thus, to the extent defendant has not served a verification for the supplemental responses before the hearing on the instant motion, defendant is ordered to serve a verification.

With respect to Special Interrogatory No. 22, which asks for the identification of defendant Providence Little Company of Mary Subacute Care Center’s patient care committee as consistent with 22 C.C.R. § 72525, defendant maintains that this information is protected by Evidence Code § 1157. 22 C.C.R. § 72525 requires skilled nursing facilities to have a patient care policy committee which makes recommendations for the improvement of patient care. (22 C.C.R. § 72525(c)(1)(D).) Evidence Code § 1157 protects the proceedings and records of organized committees and peer review bodies charged with evaluating and improving the quality of care. (Evid. Code § 1157(a).) In addition, such protection extends to the identities of the members of the patient care committees. “It would be an incongruous result if [Evidence Code § 1157] protected the work product of the review committee but exposed the identity of the evaluating committee members whose candor the statute seeks to promote.” (Cedars-Sinai Medical Center v. Superior Court (1993) 12 Cal.App.4th 579, 588.) No further response is required for Special Interrogatory No. 22.

With respect to Special Interrogatory No. 24, which asks for the identification of each management company utilized by the subject facility between January 1, 2019 and the last day of plaintiff’s residency, defendant contends that the term “management company” is ambiguous. Plaintiff did not attempt to define “management company” in the moving papers. (See generally Pl. Sep. Stmt.) However, in the reply, plaintiff explains that “skilled nursing facilities routinely utilize management compan[ies] which provide consulting and support as to numerous aspects of the Facility’s operations, including the facility’s policies and procedures, the hiring and retention of nursing staff, and the management of Medicare and Medi-Cal billing.” (Reply at 3:7-12.) Using this clarified definition, a further response to Special Interrogatory No. 24 is required.

With respect to Special Interrogatory Nos. 31 and 32, which ask for identification of residents of the subject facility and their responsible parties, respectively, between January 1, 2019 and the last day of plaintiff’s residency, defendant objects on the grounds of the Health Insurance Portability and Accountability Act (“HIPAA”) and privacy.

As a general proposition, contact information about witnesses is an essential part of pretrial discovery. (Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1249-50.) The other residents and their responsible parties at the subject facility may be able to provide information about the level of care and staffing at the facility. (See Compl. ¶¶ 52, 56, 61 [allegations of understaffing].) Privacy concerns generally do not prevent the disclosure of the contact information of witnesses. (Puerto, 158 Cal.App.4th at 1256–57 [“Generally, witnesses are not permitted to decline to participate in civil discovery, even when the information sought from them is personal or private”].)

However, HIPAA protects individually identifiable health information. (45 C.F.R. § 160.103.) Even still, such information can be disclosed in response to a court order (45 C.F.R. §164.512(e)(1)).

With respect to defendant’s invocation of the right to privacy, “[a] person's medical history undoubtedly falls within the recognized zones of privacy.” (Johnson v. Superior Court (2000) 80 Cal.App.4th 1050, 1068, disapproved of on other grounds by Williams v. Superior Court (2017) 3 Cal.5th 531.) However, “the constitutional right to privacy is not absolute. [Citations.] It may be outweighed by supervening concerns. [Citation.]” (Palay v. Superior Court (1993) 18 Cal.App.4th 919, 933.) “When the right to discovery conflicts with a privileged right, the court is required to carefully balance the right of privacy with the need for discovery. [Citations.]” (Harris v. Superior Court (1992) 3 Cal.App.4th 661, 665.)

Here, plaintiff’s right to discover the identity of witnesses and the privacy interest that other patients have are sufficiently addressed with plaintiff’s proposed letter requiring the patients and responsible parties to affirmatively consent to the disclosure of their identities. (Ex. 4 to Partain Reply Decl; see Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 787-90 [upholding trial court order allowing for the discovery of names and addresses of other insured claimants who consent to release of their letters].)

Accordingly, further responses to Special Interrogatory Nos. 31 and 32 are required. The parties are ordered to meet and confer concerning the use of a third-party administrator to send notice to the patients and responsible parties whose contact information may be disclosed to allow these individuals to affirmatively consent to the disclosure of their names, residence addresses, and telephone numbers to counsel for plaintiff.

The motion is GRANTED IN PART. With respect to Special Interrogatories, Set One, No. 22, the motion is DENIED. With respect to Special Interrogatories, Set One, Nos. 1-4, 6-14, and 26, defendant Providence Health System – Southern California is ordered to serve a verification for the supplemental responses to these interrogatories within fifteen (15) days hereof. With respect to Special Interrogatories, Set One, No. 24, defendant Providence Health System – Southern California is ordered to serve further responses in accordance with this ruling within fifteen (15) days hereof.

With respect to Special Interrogatories, Set One, Nos. 31 and 32, defendant Providence Health System – Southern California is ordered to serve responsive information within forty-five (45) days hereof for individuals who affirmatively consent to the disclosure of their contact information.

Defendant opposed this motion with substantial justification. Accordingly, no monetary sanctions are imposed.

II. MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION, SET ONE

Plaintiff Tomecie Ydette Crockam, by and through her successor in interest Naomi Washington, moves to compel further responses from defendant Providence Health System – Southern California to Requests for Production, Set One, Nos. 1-3, 5-9, 11-21, 32-38, and 40-44.

After the filing of the motion, defendant served supplemental responses, which caused plaintiff to conditionally withdraw the motion with respect to Nos. 1-3, 5-9, 11-21, 32-38, and 40-43, subject to defendant providing verification for the responses. (See Reply at 2; Partain Reply Decl. Exs 1, 2.) “Unsworn responses are tantamount to no responses at all.” (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.) To the extent defendant has not served a verification for such requests, the Motion is GRANTED as to these requests, and defendant is ordered to provide verifications to its responses to Nos. 1-3, 5-9, 11-21, 32-38, and 40-43.

With respect to Requests for Production, Set One, No. 44, which asks for documents upon which the facility relied to ensure that its nursing personnel who provided care to plaintiff were fit to perform their job duties, plaintiff maintains that defendant provided responsive documents for 22 employees, but documents for other employees who provided care to plaintiff were not included in the production. Defendant responded that “all documents or things in the demanded category that are in the possession, custody or control of defendant will be included in the production.” (Partain Reply Decl. Ex. 2) This is all that CCP § 2031.220 requires. No further response to Request No. 44 is required. Insofar as plaintiff later discovers defendant failed to produce all such documents or things as represented, plaintiff may seek the relief to which plaintiff believes it is entitled, including an appropriate jury instruction and/or appropriate monetary, issue, and/or evidentiary sanctions.

The motion is GRANTED IN PART. With respect to Requests for Production, Set One, No. 44, the motion is DENIED. With respect to Requests for Production, Set One, Nos. 1-3, 5-9, 11-21, 32-38, and 40-43, defendant Providence Health System – Southern California is ordered to serve a verification for the requests for which defendant served supplemental responses within fifteen (15) days hereof.

“The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though . . . the requested discovery was provided to the moving party after the motion was filed.” (See Rule of Court 3.1348(a).) Because plaintiff was required to file this motion to obtain supplemental responses, the Court imposes monetary sanctions against defendant Providence Health System – Southern California and counsel of record in the amount of $1,660, based on 2 hours of paralegal time to prepare drafts of the moving papers, 1 attorney hour to prepare the moving papers, 0.5 attorney hours to review the opposition and prepare the reply, and 0.5 attorney hours to attend the hearing (instead of the total 2 hours of paralegal time and 5 hours of attorney time counsel claims for preparing the papers and attending the hearing) at a paralegal hourly rate of $150 and attorney hourly rate of $650, plus $60.00 for the filing fee. Monetary sanctions shall be paid to counsel for plaintiff within 30 days hereof.