Judge Holly J. Fujie, Case 21STCV14752 2022-10-27 Tentative Ruling

RESPONDING PARTY: Defendants University of Southern California (“USC”) and USC Verdugo Hills Hospital (“Verdugo Hills”) (collectively, “Defendants”)

This survivor action arises out of alleged misconduct that occurred while Edgar Dionicio Calderon (“Decedent”) was a patient at Defendants’ hospital. The complaint (the “Complaint”) alleges violations of the Elder Abuse and Dependent Adult Civil Protection Act (the “Elder Abuse Act”).

On August 2, 2022, Plaintiff filed a motion for protective order (the “Motion”). The Motion requests a protective order providing that Plaintiff is not required to answer Special Interrogatories (“SPROGs”) numbers 47-340 in Defendants’ respective SPROGs, set two that were propounded on Plaintiff.

Under California Code of Civil Procedure (“CCP”) section 2030.090, when interrogatories have been propounded, the responding party, and any other party or affected natural person or organization may promptly move for a protective order. (CCP § 2030.090, subd. (a).) The motion shall be accompanied by a meet and confer declaration under CCP section 2016.040. (Id.) The court, for good cause shown, may make any order that justice requires to protect any party or natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. (CCP § 2030.090, subd. (b).) If the motion for a protective order is denied in whole or in part, the court may order that the party provide or permit the discovery against which protection was sought on terms and conditions that are just. (CCP § 2030.090, subd. (c).)

Defendants served their respective sets of SPROGs, set two on Plaintiff on July 11, 2022. (Declaration of Stephen M. Garcia (“Garcia Decl.”), Exhibits 1-2.) The SPROGs propounded by Defendants include identical 294 inquiries. (See id.)

On July 18, 2022, Plaintiff’s counsel sent Defendants’ counsel a letter expressing the arguments that are iterated in the Motion. (See Garcia Decl. ¶ 3, Exhibit 3.) The July 18, 2022 correspondence further stated that absent Defendants’ agreement to either withdraw their SPROGs or provide supplemental declarations to justify the additional queries, Plaintiff would move for a protective order. (See id. at 3.) Plaintiff did not receive a response from Defendants’ counsel before filing the Motion. (Garcia Decl. ¶ 3.)

In their opposition, (the “Opposition”), Defendants argue that Plaintiff did not meet and confer in good faith before filing the Motion because the sole communication regarding the SPROGs prior to the Motion being filed was a letter sent as an email attachment and the email itself did not expressly identify any meet and confer efforts. (See Declaration of Carter R. Taylor (“Taylor Decl.”) ¶ 4.) Defendants’ counsel mistakenly overlooked the email, and Plaintiff did not make any other attempts to discuss the SPROGs before filing the Motion. (See id.) The Opposition concedes that the failure to attempt to resolve the current issue informally was due to Defendants’ oversight, and while Plaintiff could have made a more vigorous attempt to contact Defendants’ counsel, the Court will consider the Motion on its merits.

(1) The complexity or the quantity of the existing and potential issues in the particular case.

(2) The financial burden on a party entailed in conducting the discovery by oral deposition.

(3) The expedience of using this method of discovery to provide to the responding party the opportunity to conduct an inquiry, investigation, or search of files or records to supply the information sought.

A party who propounds more than 35 specially prepared interrogatories shall attach a supporting declaration which substantially addresses why the number of questions is warranted under CCP section 2030.040. (See CCP § 2030.050.) The example declaration provided in CCP section 2030.050 provides that a party should “state each factor described in Section 2030.040 that is relied on, as well as the reasons why any factor relied on is applicable to the instant lawsuit.” (See id.)

If the responding party seeks a protective order on the ground that the number of specially prepared interrogatories is unwarranted, the propounding party shall have the burden of justifying the number of these interrogatories. (CCP § 2030.040, subd. (b).)

Plaintiff argues that the declaration attached to Defendants’ SPROGs is insufficient to justify the additional discovery requests. The Court agrees. The declaration attached to each set of SPROGs includes a declaration submitted by Taylor noting that the propounded SPROGs exceed the total number of special interrogatories propounded on Plaintiff permitted by CCP section 2030.030. (See, e.g., Garcia Decl., Exhibit 1, Taylor SPROGs Decl. ¶ 3). The Taylor SPROGs Declaration additionally states that the additional SPROGs are “warranted under Section 2030.040 of the Code of Civil Procedure because the information sought by each interrogatory is necessary for the proper preparation of this case and reasonably require the number of interrogatories contained herein.” (Id. at ¶ 8.) This statement is insufficient because it provides only a generalized statement that the greater number of SPROGs is warranted to conduct a proper investigation of the issues. This explanation could apply to any litigation and does not address why Defendants need a greater number of SPROGs well-beyond the general cap of 35 SROGs. (See CCP § 2030.030, subd. (a).) The SPROGs Declaration does not clarify what litigation issues the SPROGs are addressing, how the additional SROGs intend to address the issues or allegations in this litigation, and does not provide any other explanation for why the additional SROGs are warranted. The Court is not persuaded by the Opposition’s argument that Plaintiff failed to demonstrate that the additional SPROGs they propounded are unduly burdensome, harassing, or oppressive because as the propounding parties, Defendants have the burden of justifying serving over 35 SPROGs. (See CCP § 2030.040, subd. (b).)

Defendants also argue that the additional SPROGs are warranted because they are designed to obtain information regarding questions that Plaintiff was unable to answer at his deposition on February 1, 2022 without potentially infringing on the attorney-client privilege or stating a legal conclusion and that they are necessary in order for them to understand the nature of Plaintiff’s claims. Defendants submit an excerpt from Plaintiff’s deposition during which Defendants asked him questions regarding his personal knowledge of: (1) anyone at the hospital intending to harm Decedent; (2) anyone consciously disregarding providing care Decedent may have required; (3) the hospital being appropriately staffed; (4) if the staff at the hospital was qualified; (5) if any caretakers made decisions about Decedent’s care based on a financial incentive; (6) of care Decedent required but did not receive; and (7) if any staff attempted to deceive or defraud Plaintiff or Decedent. (See Taylor Decl. ¶ 2, Exhibit B.) Plaintiff responded that he was unable to respond to the questions because he was unable to differentiate between his independent knowledge and information he learned from his attorney. (See id.)

While Defendants generally argue that the SPROGs are necessary for them to ascertain the scope of the numerous claims alleged in the Complaint, they do not provide specific examples or evidence to show why Plaintiff’s claims are sufficiently complex to warrant an additional 294 SPROGs per Defendant.[1] In addition, the SPROGs propounded by Defendants do not appear tailored to the questions cited in Plaintiff’s deposition transcript.

The Court therefore GRANTS the Motion. Plaintiff is not required to submit responses to Defendants’ SPROGs, set two numbers 47-340. The Court notes, however, that it is undisputed that the SPROGs seek relevant information. Defendants may propound a revised set of special interrogatories that comply with CCP section 2030.040 and 2030.050. Furthermore, in light of Plaintiff’s minimal attempt to informally resolve this dispute before filing the Motion and the fact that the SPROGs at issue seek relevant information, the Court declines to award Plaintiff monetary sanctions.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative. If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org stating your intention to appear in person. The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date. This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court

[1] In law and motion practice, factual evidence is supplied to the court by way of declarations. (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224.)