Judge: Frank M. Tavelman, Case: 21BBCV00646, Date: 2022-12-09 Tentative Ruling

Case Number: 21BBCV00646    Hearing Date: December 9, 2022    Dept: A

RELIEF REQUESTED:

Two discovery motions are presently before the Court.  First, Plaintiff Beatriz Mages (“Plaintiff”) moves for a protective order restricting the disclosure of private and confidential information. (Protective Order (“PO”) - Notice of Motion, pg. 2.)  Plaintiff moves for a protective to Defendant Trophy Body LLC’s (“Trophy Body”) second set of discovery requests  which seeks sensitive and confidential information, and Trophy Body has not agreed to stipulate to a protective order prior to Plaintiff providing a response. (Motion, pgs. 3-4.)  Plaintiff asserts that this motion is necessary to protect her privacy and the use or disclosure of her protected health information outside the confines of this litigation as well as to protect unwarranted annoyance, embarrassment, oppression or undue burden and expense. (Id.)

Second, Trophy Body moves for an order compelling Plaintiff to provide further responses to Trophy Body’s First Set of Requests for Production. (Request for Production (“RFP”)- Notice of Motion, pg. 1.) Trophy Body further requests associated monetary sanctions in the amount of $2,685. (Id. at pg. 2.) 

ALLEGATIONS:

Plaintiff filed her complaint on July 26, 2021, and her first amended complaint (“FAC”) on November 18, 2021. Plaintiff alleges six causes of action sounding in: (1) Intentional Misrepresentation, (2) Negligent Misrepresentation, (3) Battery, (4) Intentional Infliction of Emotional Distress, (5) Negligence, (6) Unfair Competition in Violation of Business & Professions Code §§17200 et seq. (Unauthorized Practice of Medicine).

Plaintiff filed suit against Trophy Body, Glenda Duran (“Duran”), Mary Galan (“Galan”), Maria “Mari” Hernandez (“Hernandez”), and Does 1 through 20 (collectively, “Defendants” and individually as “Individual Defendants”). Plaintiff alleges an alter ego relationship between Trophy Body and the Individual Defendants. (FAC, pg. 2.) Plaintiff alleges that she scheduled an appointment at Trophy Body’s Burbank location after being told that their fat dissolving injections have been certified for high safety, quick effect, and little side effects. (FAC, ¶15-17.) Upon her arrival, she was not asked to complete paperwork or consent forms and was not given paperwork describing the “fat dissolving” procedure or ingredients. (FAC, ¶17.) Plaintiff alleges that the “fat dissolving solution” was injected into her body with a hyluron pen, including her abdomen, upper arms, lower back, and waist. (FAC, ¶¶18-19.)  Plaintiff was told the solution was totally safe and harmless, with side effects of minimal bruising and down time. (FAC, ¶¶18-19.) Within 48 hours, Plaintiff began to experience chills, fever, cold sweats, shivers throughout the night, extreme fatigue, and all injection sites were red, swollen, and painful. (FAC, ¶21.) Plaintiff claims she was told to shower and scrub, everything was normal, and it takes 3-4 weeks to heal. (FAC, ¶¶22-23.) Despite following these instructions, the injection sites became more painful and swollen over the following two weeks. (FAC, ¶23.)

Plaintiff alleges that on May 1, 2021, the owner of Trophy Body berated Plaintiff, told her that the problem was caused from her failure to schedule follow up cavitation and massage appointments, and instructed Plaintiff to come in for another cavitation and massage to alleviate the swelling and pain. (FAC, ¶24.)  Plaintiff’s injection sites were made worse after her appointment on May 4, 2021. (FAC, ¶25.) On May 6, 2021, Plaintiff consulted with a dermatologist who diagnosed her with a rare and dangerous bacterial infection because of the injections. (FAC, ¶¶26-27.) Plaintiff alleges that the infection rendered Plaintiff unable to work, disfigured her body, and resulted in numerous hospitalizations. (FAC, ¶28.)

PRESENTATION:

Plaintiff filed her motion for protective order on November 7, 2022. On November 28, 2022, Duran filed an opposition to the motion.  Trophy Body did not file an opposition to the motion.  On December 2, 2022, Plaintiff filed a reply to Duran’s opposition and a Notice of Non-Opposition indicating that Trophy Body had not opposed the motion for protective order.  

Defendant filed its motion to compel Plaintiff to provide further responses to requests for production on October 20, 2022, Plaintiff filed her opposition on November 23, 2022.  As of the date of this hearing, Defendant has not filed a reply to Plaintiff’s opposition.

ANALYSIS:

Protective Order:

Standard of Review

A protective order may issue under Code Civ. Proc., §§ 2017.020, 2025.420, 2030.090, 2031.060, and 2033.080. In each case, a protective order should be issued for good cause, such as to prevent unwarranted annoyance, embarrassment, oppression, or undue burden and expense. Additionally, prior to making such a motion the moving party must attempt to informally resolve the issue and attach a declaration pursuant to CCP § 2016.040.

A monetary sanction shall be imposed upon any party, person, or attorney who unsuccessfully makes or opposes a motion for protective order unless the court finds that the sanctioned party acted with substantial justification, or that the circumstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2031.060 (h).)

Meet and Confer

CCP § 2016.040 requires that all parties make “a reasonable and good faith attempt at an informal resolution of each issue presented” prior to filing a discovery motion.

On review of Kristina N. Markarian’s Declaration and Dominique E. Banos’ Declaration, the Court finds that meet and confer requirements have been satisfied to code. (PO- Motion, Decl. Markarian, ¶10; PO- Opposition, Decl. Banos, ¶¶5-6.) Plaintiff asserts that an attempt to meet and confer was made multiple times prior to filing the motion for protective order and Defendants resisted stipulating to one. (PO- Motion, Decl. Markarian, ¶10.) However, Duran asserts that on September 20, 2022, Plaintiff’s counsel emailed Duran’s counsel with a confidentiality agreement and protective order with no discussion, email, or telephone conversation between Plaintiff’s counsel or Duran’s counsel regarding the need or request for a protective order. (PO- Opposition, Decl. Banos, ¶¶4-5.) Duran’s counsel responded on September 22, 2022, stating they did not agree to a protective order. (Id. at ¶6.) Plaintiff’s counsel asked Duran’s counsel to reconsider her position, or they will present the confidentiality agreement to Court by close of business that day without Duran’s counsel’s input. (Id.) Duran’s counsel asserted that her response was not opinion as to whether the protective order was necessary but that their office failed to meet and confer regarding the stipulations of a protective order. (Id.) Duran’s counsel further responded that counsel believed there was no apparent or express cause for a protective order, so the position would remain the same. (Id.) Plaintiff also provides an email exchange requesting to resolve the matter informally on November 29, 2022. (PO- Reply, Exh. A.) Based on Plaintiff and Duran’s counsel’s responses, the Court finds that a good faith attempt was made, but the parties have reached an impasse.

Merits

Plaintiff argues that a protective order is warranted to limit the disclosure of private and confidential medical information. (PO- Motion, pg. 3.) Plaintiff argues that Defendants demand that Plaintiff produce pictures and footage of Plaintiff’s injuries regardless of the highly sensitive and confidential information. (Id.) Plaintiff argues that good cause exists as the medical records contain explicit footage of Plaintiff’s body parts and exposes sensitive areas of her body. (PO- Motion, pg. 4.) Plaintiff asserts that a protective order is necessary to protect disclosure of the highly sensitive and confidential health information and to protect exposure to unwarranted annoyance, embarrassment, or oppression. (Id.) Plaintiff also argues that she has not refused to produce requested medical records, photographs, and footage of her injuries and she is not attempting to withhold information or dispute the parties’ right to request such information. (Id.) Plaintiff argues that the protective order will expedite the production of documents. (Id.)

Duran opposes on the grounds that Plaintiff has not established good cause, Plaintiff has failed to engage in a meaningful or reasonable meet and confer, the document requested are relevant to the issue, and the request for production are not overbroad, oppressive, vague, ambiguous, excessive, or unduly burdensome. (PO- Opposition, pgs. 1-2.) Duran asserts that Plaintiff failed to identify how, why, or which medical records are considered “explicit” or “sensitive” and how or why the records could expose her to unwarranted annoyance, embarrassment, or oppression. (Id. at pg. 6.) In reply, Plaintiff asserts that the medical records contain explicit footage of her body parts and exposes highly sensitive areas of her body. (PO- Reply, pg. 2.) Plaintiff responds by asserting that the exposure of a person’s explicit body parts and disfigurement is enough to show good cause to protect sensitive medical information outside the bounds of litigation. (Id.)

The Court finds that Plaintiff has established good cause to justify a protective order. “A party seeking the protective order must show by a preponderance of the evidence that the issuance of a protective order is proper.” (Stadish v. Superior Court (1999) 71 Cal.App.4th 1130, 1145, citing Evid. Code, § 1061, subd. (b)(3).)  “The state has two substantial interests in regulating pretrial discovery…the first is to facilitate the search for truth and promote justice…the second is to protect the legitimate privacy interests of the litigants and third parties.” (Id. citing Westinghouse Electric Corp. v. Newman & Holtzinger (1995) 39 Cal.App.4th 1194, 1208.)  Plaintiff asserts that pictures and footage of injuries are highly sensitive and confidential. (PO- Motion, Decl. Markarian, ¶4; PO- Reply, pg. 2.) A general assertion that footage of a person’s body part is sensitive is not adequate by itself to provide an argument for the legitimate privacy interest of the Plaintiff or meet the preponderance standard to show that an issuance of a protective order is proper. Plaintiff has also not cited to case law to support its contention that the instant circumstances fall in the category "unwarranted annoyance, embarrassment, or oppression, or undue burden and expense" pursuant to CCP 2031.060(b). Because Plaintiff only states that the medical records contain explicit footage and exposes sensitive areas of her body, the lack of further explanation, legal argument, or evidence does not justify good cause for a protective order. (PO- Motion, Decl. Markarian, ¶6.)

Accordingly, the Court grants the motion for protective order in part (as noted below).

Motion to Compel Further RFP:

Standard of Review

Code of Civil Procedure § 2031.310 provides that a party may bring a motion to compel further to Requests for Production where the responding party provides inadequate, incomplete, or evasive responses, or the objections are too general or without merit. The propounding party must submit a declaration under CCP § 2016.040 stating facts demonstrating a good faith and reasonable effort to informally resolve all issues raised by the motion. (Code Civ. Proc., § 2031.310, (b)(2).) A motion to compel further responses to Requests for Production must further specifically identify facts showing good cause for the discovery. (Code Civ. Proc., § 2031.310, (b)(1).) The motion must be brought within 45 days of service of the responses or supplemental responses. (Code of Civ. Proc., § 2031.310, (c).) Sanctions are mandatory against the party or attorney who unsuccessfully makes or opposes a motion to compel further unless the party acted with substantial justification, or the circumstances make imposition of sanctions unjust. (Code Civ. Proc., § 2031.310, (h).) 

Code of Civil Procedure § 2031.310(b)(1) requires the movant to set forth specific facts showing good cause justifying the production for inspection of any document described in the request for production or deposition notice. In Calcor, the Court of Appeal issued a writ of mandate directing the trial court to vacate its order compelling the defendant to produce records because the plaintiff had failed to provide specific facts showing good cause for their production. (Calcor Space Facility v. Superior Court (1997) 53 Cal. App. 4th 216, 224)  Subsequently, in Digital Music News LLC v Superior Court (2014) 226 Cal. App. 4th 216 at 224, the court identified the manner for establishing good cause under Calcor: “To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact. 

Meet and Confer

Trophy Body’s counsel asserts that a meet and confer letter was sent on September 14, 2022, to resolve the discovery dispute. (Decl. Fitzgerald, ¶4.) Trophy Body’s counsel stated that Plaintiff’s counsel responded by providing a protective order and insisted that all attorneys sign the protective order. (Id. at ¶5.) Plaintiff’s counsel did not address any of the points brought up in the meet and confer letter. (Id.) Trophy Body’s counsel responded by saying the protective order would not be signed as there is no basis for it. (Id. at ¶6.) Plaintiff’s counsel responded back on September 22, 2022, by asking “Would you like to have your confidential medical information displayed in court…” (Id. at ¶7.) The Court finds that the meet and confer attempt is sufficient.

Merits

Trophy Body asserts that Plaintiff has failed to provide code-compliant responses to the Requests for Demand for Production. (RFP Motion, pg. 5.)

RFP No. 1

Trophy Body requests any and all medical records, reports, handwritten notes and bills from each and every health provider with whom Plaintiff treated as a result of the incident as alleged in her complaint. (Separate Statement, pg. 1.)

Plaintiff objected on the basis that the request was vague, ambiguous and overly broad. (Separate Statement, pg. 2.) Plaintiff also objected asserting that the request was compound. (Id.) Additionally Plaintiff objected that the request seeks information protected by attorney-client privilege and attorney work-product doctrine. (Id.) Notwithstanding these objections, Plaintiff asserted that she would comply by producing documents in her possession provided that there is an executed Stipulation and Protective Order by the Court. In opposition, Plaintiff does not provide argument or reasoning as to their objections. Instead, Plaintiff argues that Trophy Body’s motion was not brought by a proper purpose but to embarrass and harass Plaintiff. (RFP Opposition, pg. 6.) 

The Court need not rule on any of Plaintiff’s objections as Plaintiff represented the documents would be provided subject to a protective order.   The Court intends on issuing such an order.

Based on the foregoing, Trophy Body’s motion to compel further responses is granted as to RFP No. 1; however, the responses will be covered by a protective order.

RFP No. 3

Trophy Body requests copies of every written, transcribed, tape recorded, or real witness statements given regarding this incident. (Separate Statement, pg. 3.)

Plaintiff objected on the basis that the request was vague, ambiguous, overly broad, compound, and that the information is protected by attorney client privilege and attorney work product doctrine. (Separate Statement, pg. 3.) Plaintiff also asserted that the request is premature and violates CCP 2034.210. (Id.) Notwithstanding these objections, Plaintiff asserted that she would comply with the request and produce all documents in the demanded category that are within the Plaintiff’s possession and control, provided that there is an executed Stipulation and Protective Order. (Id.) Plaintiff does not provide argument, context, or explanation as to her objections to RFP No. 3. Plaintiff instead argues that Trophy Body filed the instant motion which could have been avoided if they responded to Plaintiff’s request to stipulate to a protective order and meet and confer. (RFP- Opposition, pgs. 3-4.)

Trophy Body argued that Plaintiff’s counsel failed to identify who witnesses were, when statements were taken, and who has a copy. (RFP Motion, pg. 5.) Defendant argued that witness statements are discoverable in personal injury matters. (Id.) Trophy Body argues that Plaintiff has refused to produce any information responsive to the request that are reasonably calculated to lead to discovery of admissible evidence. (Id.at pg. 7.)

“Recorded witness statements are entitled as a matter of law as to at least qualified work product production… [t]he witness statements may be entitled to absolute protection if defendant can show that disclosure would reveal its ‘attorney’s impressions, conclusions, opinions or legal research or theories.’ (§ 2018.030 (a).) If not, then the items may be subject to discovery if plaintiff can show that ‘denial of discovery will unfairly prejudice [her] in preparing [her] claim ... or will result in an injustice.’ (§ 2018.030 (b).)” (Coito v. Superior Court (2012) 54 Cal.4th 480, 486.)  In the instant action, Plaintiff did not provide reasoning or argument as to how the witness statements are protected by attorney work product or reveal attorney impression, conclusion, or opinions. (RFP- Opposition, pgs. 3-4.)  Furthermore, Plaintiff does not set forth any good cause that would justify a protective order for this information, unlike the medical information and body party photos for which the Court did grant a protective order. Trophy Body argued that no identities, copies, or dates were provided as to witness statements. (Separate Statement, pg. 3.) Furthermore, no document was identified requiring a protective order. (RFP Motion, pg. 5.)

The Court does not find merit in Plaintiff’s assertions against providing further responses as Plaintiff does not provide any argument for their specific objections to RFP No. 3.  Furthermore, the Court does not find that this information should be subject to any protective order, nor does counsel set forth express reasons as to why any such statement is sensitive or confidential.

Based on the foregoing, Trophy Body’s motion to compel further responses is granted as to RFP No. 3.

RFP No. 5

Trophy Body requests all photographs of the Plaintiff indicating alleged injuries suffered in this incident. (Separate Statement, pg. 4.)

Plaintiff objected to the request based on the information was protected by attorney client privilege and attorney work product doctrine and asserts that the request is premature and violates CCP §2034.210. (Separate Statement, pg. 4.) Plaintiff asserted that she would comply and produce all documents that are within her possession or control, provided that there is an executed Stipulation and Protective Order. (Id.) In Plaintiff’s opposition, Plaintiff asserts that the footage of Plaintiff’s injuries contains highly sensitive and confidential information. (RFP- Opposition, pg. 4.) Plaintiff also responds by asserting that she has not refused to produce the requested medical records, photographs, and footage of her injuries, nor is she attempting to withhold information or dispute the parties’ right to request information but is requesting a protective order to expedite the production of documents as the records contain highly sensitive and confidential information. (Id. at pgs. 4-5.) Plaintiff states that she did not have a meaningful opportunity to informally address issues raised in Trophy Body’s “meet and confer” letter because Trophy Body did not respond to Plaintiff. (Id. at pg. 5.) In opposition, Plaintiff does not address her objections to RFP No. 5 or provide context, explanation, or argument as to how the information is protected by attorney client privilege and attorney work product doctrine. (Id. at pgs. 3-5.) Plaintiff also does not address how the request is in violation of CCP §2034.210.

The Court does not find merit in Plaintiff’s assertions against providing further responses as Plaintiff does not provide any argument for their specific objections to RFP No. 5.  However, the court believes that the requested information should be subject to a protective order, and Plaintiff represents that she will voluntarily comply with the discovery request with such protective order.

            Based on the foregoing, Trophy Body’s motion to compel further responses is granted as to RFP No. 5 subject to the issuance of a protective order.

Sanctions:

The Court may impose a monetary sanction for reasonable expenses, including attorney's fees, against a party or attorney engaging in misuse of the discovery process. (Code Civ. Proc., § 2023.030 (a).) A monetary sanction authorized by any provision under the Title 4 Civil Discovery Act is mandatory unless the court "finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust." (Ibid.) 

The imposition of specific sanctions typically depends on the severity of the party’s transgression. “The trial court cannot impose sanctions for misuse of the discovery process as a punishment.” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal. App. 4th 967, 992.) Rather, any given sanction must be “tailor[ed] to the harm caused by the withheld discovery.” (Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal. App. 4th 27, 36) (superseded by statute on other grounds). This is because “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.) 

Trophy Body argues that Plaintiff and her counsel should be sanctioned in the sum of $2,658 for wrongfully objecting to and refusing to produce any information responsive to the code compliant requests. (RFP Motion, pg. 7.) This calculation based on a billing rate of $350 per hour for 4 hours research and preparing the motion, 2 hours researching and preparing a reply, and 1.5 hours preparing and attention the motion, plus a $60 filing fee. (Decl. Fitzgerald, pg. 2.)

Plaintiff argues that not only should the sanctions be denied because Trophy Body’s counsel failed to engage in a serious attempt to informally resolve the discovery dispute prior to filing the motion, but sanctions should be awarded to Plaintiff instead because Trophy Body’s motion was not brought on by a proper purpose but rather to add undue burden, expense, embarrassment, and harassment. (RFP Opposition, pg. 6.)  Plaintiff requests sanctions in the amount of $1,500 (6 hours at $250 an hour).

The Court finds that sanctions would not be appropriate against Plaintiff or Trophy Body. The parties had substantial justification in making their respective motions as Plaintiff’s responses hinged on the above protective order.  Both parties acted with substantial justification as mandated by CCP § 2023.030 (a). 

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendants Trophy Body LLC’s Motion to Compel Further Responses to Defendant’s Request for Production and Plaintiff Beatriz Mages’ Motion for Protective Order came on regularly for hearing on December 9, 2022, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION FOR PROTECTIVE ORDER IS GRANTED IN PART. PLAINTIFF’S REQUEST FOR MONETARY SANCTIONS IS DENIED.

THE MOTION TO COMPEL FURTHER RESPONSE TO DEFENDANT’S REQUEST FOR PRODUCTION OF DOCUMENTS IS GRANTED. THE REQUEST FOR SANCTIONS BY BOTH PARTIES ON THE MOTION TO COMPEL FURTHER RESPONSE IS DENIED.

DATE:  _______________                            _______________________________

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

                                                                        County of Los Angeles