Judge: Frank M. Tavelman, Case: 21STCV24782, Date: 2022-10-18 Tentative Ruling

Case Number: 21STCV24782    Hearing Date: October 18, 2022    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO COMPEL PLAINTIFFS’ FURTHER RESPONSES TO INTERROGATORIES

SUMMARY OF RULING:

The Motion to Compel Further Responses to Interrogatory 17.1(b) is granted.

The Motion to Compel Further Responses to Interrogatory 17.1(d) is denied.

No sanctions were sought nor issued.

ALLEGATIONS:

Plaintiffs Cathy Schlesinger (“Schlesinger”) and David Gaines (collectively, “Plaintiffs”) filed suit against Defendants Providence St. Joseph Medical Center, Nadia Jean Fakoory, M.D., Robin Solymanijam, M.D., Karo K. Arzoo, M.D., Woody Herman Jackson, M.D., Mariam Torossian M.D., and Grace I. Wong, M.D. (collectively, “Defendants”). The First Amended Complaint (“FAC”) alleges the Defendants failed to obtain Schlesinger’s informed consent concerning the risks of certain treatments. As a result of the treatments, Schlesinger’s leg was amputated below her left knee and part of her right foot.

Plaintiffs filed the FAC on December 27, 2021, alleging five causes of action: (1) medical negligence; (2) lack of informed consent; (3) lack of informed consent; (4) lack of informed consent; and (5) loss of consortium.

HISTORY:

The Court received the Motion filed by Defendant Providence Health System-Southern California d/b/a Providence St. Joseph Medical Center’s (“Defendant”) on May 9, 2022. The Court received the opposition to the Motion filed by Plaintiffs on July 6, 2022. The Court received the reply to the Motion filed by Defendant on July 13, 2022. This matter was transferred from the personal injury hub court to this court.

RELIEF REQUESTED:

Compel Plaintiffs’ further responses to Defendant’s Form Interrogatories, Set Two, No. 17.1, which asks Plaintiffs to elaborate on their responses to Defendant’s Requests for Admissions, Set One.

ANALYSIS:

I.          LEGAL STANDARD

“A propounding party may move for an order compelling further response [to interrogatories] if the propounding party deems …: ¶ (1) An answer to a particular interrogatory is evasive or incomplete. ¶ (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate. ¶ (3) An objection to the interrogatory is without merit or too general.” (Civ. Code Proc., § 2030.300 (a).)

“The court shall impose a monetary sanction … against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Civ. Code Proc., § 2030.300 (d).)

II.        MERITS

45-Day Rule

“Unless notice of this motion [to compel further responses to interrogatories] is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories.” (Civ. Code Proc., § 2030.300, subd. (c).)

Defendant filed and served this motion on May 9, 2022, within 45 days of receiving Plaintiffs’ verified responses to its Form Interrogatories, Set Two, on March 25, 2022. (See Motion, p. 8 – Proof of Service; Exhibit B – copies of Plaintiffs’ verified responses to the Form Interrogatories.)

Meet and Confer

A motion to compel further responses to interrogatories must be accompanied by a meet and confer declaration. (Civ. Code Proc., § 2030.300, subd. (b)(1).)

Here, Defendant met and conferred with Plaintiffs before filing the instant motion. (Motion, Declaration of David Tredway (“Tredway Decl.”), ¶ 2.)

Separate Statement

A motion to compel further responses to interrogatories must be accompanied by a separate statement. (Cal. Rules of Court, rule 3.1345(a)(2).) “A separate statement is a separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue.” (Cal. Rules of Court, rule 3.1345(c).)

Defendant has met the above requirement by filing a separate statement explaining the interrogatories at issue, Plaintiffs’ responses, and why further responses to the interrogatories are necessary.

Form Interrogatory, No. 17.1

On March 10, 2022, Defendant served each plaintiff with Request for Admissions, Set One (“RFA”) and Form Interrogatories, Set Two. (Motion, Tredway Decl., ¶ 2; Exhibit A – copies of the discovery requests.) There were only six RFAs.

The RFAs asked Plaintiffs to admit to the following:

1. No act or omission by Defendant (or its agents or employees) was negligent toward Plaintiff Schlesinger.

2. No act or omission by Defendant (or its agent or employees) was a substantial factor in causing any injury, damage, or loss to Schlesinger.

3. No medical practitioner has ever advised Schlesinger that the care and treatment Defendant provided to her resulted in any injury, damage, or loss to her.

4. No medical practitioner advised Schlesinger that the Defendant’s care and treatment fell below recognized and accepted standards of care in the medical community.

5. Defendant cannot be held liable for damages to Schlesinger based upon the action or omission of any other person or entity.

6. Schlesinger has not suffered economic damages (i.e., objectively verifiable monetary loses, including medical expenses and loss of past or future earnings or earning capacity) as a result of the Defendant’s care and treatment.

7. Schlesinger has not suffered non-economic damages (i.e., pain and suffering) as a result of Defendant’s care and treatment.

For each RFA, Plaintiffs responded, “Denied.”  (Motion (Exhibit B), pp. 58-71 – copies of Plaintiffs’ verified responses to the RFAs.)

Therefore, Form Interrogatory No. 17.1 asked Plaintiffs for each RFA that was not an unqualified admission (e.g., a denial), to:

1. state the number of the request;

2. state all facts upon which you base your response;

3. state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts; and

4. identify all DOCUMENTS and other tangible things that support your response and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing.

(Motion (Exhibit A), pp. 33-42 – copies of the Form Interrogatories, Set Two.)

With regards to No. 17.1(c) above, Plaintiffs objected to stating facts upon which they base their denials, contending that they call for expert opinion and privileged information protected by the attorney work-product and attorney-client privilege. For RFA No. 1, which asked them to admit that neither Defendant nor its agents or employees were negligent towards Schlesinger, Plaintiffs only responded, without waiving any objection: “Defendant’s negligence was a substantial factor in causing plaintiff’s harms and damages. These allegations will be refined by expert testimony at the appropriate time.” In addition, instead of identifying all documents that supported their denials (17.1(d) above), Plaintiffs only answered, “[t]he medical record for plaintiff at [Defendant] PROVIDENCE ST JOSEPH MED CTR,” without further elaboration.

Plaintiff argues that they are not obligated to provide any additional information citing CCP §2030 and Bunnell v. Superior Court (1967) 254 Cal. App. 2d, 720, 724.   First, the Court notes that §2030 was repealed 17 years ago, in 2005.   Although the Bunnell case has not been cited in any subsequent published opinions, its holding that, generally, when material to be discovered consists solely of information available to both parties, it defeats the purpose of the Discovery Act to compel one party to perform another party's research, whether it be laborious or not appears to still be the state of the law.  The Court acknowledges that it would have been nice had Plaintiff provided more specific locations in the 3,000 pages of records; however, it was not obligated to do so in the interrogatory response.   “Where the answer to an interrogatory may be derived or ascertained from the business records of the party to whom such interrogatory is addressed, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the propounder a reasonable opportunity to examine such records and to make copies thereof or compilations, abstracts or summaries therefrom.  Bunnell v. Superior Court of Alameda County (1967) 254 Cal.App.2d 720, 724.

Nonetheless, the Court finds Plaintiffs’ responses to form interrogatory No. 17.1 partially evasive. For example, Plaintiffs do not need expert witness testimony to know whether Schlesinger suffered pain and suffering as a result of the Defendants’ alleged negligence.

Lastly, while “a responding party may object to an interrogatory that seeks privileged information by clearly stating the objection and the particular privilege invoked,” the “existence of a document containing privileged information is not privileged.” (Hernandez, supra, 112 Cal.App.4th at p. 293 [italics removed].) “Interrogatories may be used to discover the existence of documents in the other party’s possession.” (Ibid.) “If an interrogatory asks the responding party to identify a document, an adequate response must include a description of the document.” (Ibid.) “[A] ‘privilege log’ is unnecessary with regard to answering interrogatories seeking the identification of documents.” (Ibid.) Therefore, to the extent that Plaintiffs are objecting to the interrogatory, contending that it seeks privileged information, Plaintiffs need to describe the documents that are privileged in response to the interrogatory.

For those reasons, the Court grants the Defendant’s motion to compel further responses to Form Interrogatories, Set Two, No. 17.1(b) but denies it as to 17.1(d).

Sanctions

Defendant is not requesting sanctions in this motion, as such none are awarded.

III.       CONCLUSION

Defendant Providence Health System-Southern California d/b/a Providence St. Joseph Medical Center’s Motion to Compel Plaintiffs’ Further Responses to Form Interrogatories, Set Two, is GRANTED. Plaintiffs are ordered to serve further verified and code-compliant responses to Defendant’s Form Interrogatories, Set Two, No. 17. 1(b), within thirty (30) days of this ruling.

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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

Defendant Providence Health System-Southern California dba Providence St. Joseph Medical Center’s Motion came on regularly for hearing on October 18, 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 IS GRANTED. Plaintiffs are ordered to serve further verified and code-compliant responses to Defendant’s Form Interrogatories, Set Two, No. 17. 1(b), within thirty (30) days of this ruling.

IT IS SO ORDERED.

DATE: October 18, 2022                               ____________________________________

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

County of Los Angeles