Judge James L. Crandall, Case 21-01220808 2022-08-25 Tentative Ruling

Judge: James L. Crandall, Case: 21-01220808, Date: 2022-08-25 Tentative Ruling

1. Motion to Compel Further Responses to Special Interrogatories

2. Motion to Compel Production

1.Motion re Special Interrogatories

Plaintiff, The Wellness Group, LLC’s (WG) Motion to Compel Further Responses to Special Interrogatories, Set One, numbers 11, 12 and 13 and Request for Monetary Sanctions of $3,040 against Defendant, PMH Laboratory, Inc. (PMH) is GRANTED in part.

PMH is ordered to serve verified, supplemental responses to Special Interrogatories, Set One, numbers 11, 12 and 13 within 30 days of this date.

PMH and its attorney, Burris Law are ordered to pay sanctions of $2,000 jointly and severally to WG within 30 days of this date.

On receipt of responses to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that an objection is without merit or too general or an answer is evasive or incomplete. (See Code Civ. Proc., §§ 2030.300, subd. (a)(1)-(3).)

The moving party must also include reasons why further answers should be ordered: legal or factual arguments why the answers given were incomplete or nonresponsive, or the objections invalid. (Cal. Rules of Court, rule 3.1345(c).)

The responding party has the burden to justify objections in response to a motion filed to compel further responses. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)

Procedural History

WG served Special Interrogatories, Set One on PMH on December 27, 2021. (Declaration of Werner Meissner (Meissner Declaration), ¶ 5, Ex. 1.)

PMH served its response on February 4, 2022. (Id., Ex. 2.)

PMH served supplemental responses to Special Interrogatories, Set One on March 11, 2022. (Lam Declaration, ¶ 10, Ex. 10.)

Meet and Confer Efforts

On March 29, 2022, the parties had a meet and confer telephonic discussion where PMH’s counsel agreed to provide further responses or a “concrete plan” by April 1, 2022. (Meissner Declaration, ¶ 9, Ex. 4.)

The Meissner Declaration satisfies the requirements of Code of Civil Procedure section 2030.310(b).

Merits

WG moves to compel a further response to Special Interrogatories, Set One, numbers 11-13.

Interrogatory No. 11: What is the total sum received by you from any source for any services for processing test samples provided to you from WELLNESS GROUP, LLC

Interrogatory No. 12: What is the total sum billed by you to any company, entity or person for any services, for processing test samples provided to you from WELLNESS GROUP, LLC?

Interrogatory No. 13: What is the total of outstanding receivables from any source for billing submitted by you, or on your behalf, for processing test samples provided to you from WELLNESS GROUP, LLC?

PMH’s response to each interrogatory stated, subject to objections,

“After a reasonable search and diligent inquiry in accordance with Code of Civ. Proc. § 2031.230, Defendant has identified and produced all reports in its possession that are responsive to this interrogatory. Responding Party would further direct Propounding Party to obtain said information from ICarePro Billing and MedUSA whose contact information has been provided herein.”

PMH’s response referred WG to approximately 10,000 pages of documents it produced along with its responses to Requests for Production, Set One.

WG asserts that PMH’s responses are insufficient because they simply identified irrelevant documents produced and directed WG to obtain responsive information from PMH’s billing providers. (Motion, 3-5.)

According to WG, the requested information is easily available to PMH and essential for WG to conduct a proper accounting. (See Separate Statement in Support of Motion, 2-3.)

PMH must know the amount billed and total sum received to take the position that they paid WG the correct amounts.

In opposition, PMH asserts that there is no good cause to compel because its original response was sufficient. (Opposition, 6-7.) Additionally, it agreed to provide further responses “specifying the referenced documents and records.”

According to PMH, the original responses were sufficient because the documents produced on February 4, 2022, were bookmarked, and organized into 12 specifically tailored categories for WG’s review. The categories were as follows: (1) Checks to PMH from TWG; (2) Master Schedule for TWG; (3) PMH Expenses; (4) Adfam; (5) Client Reports; (6) Contracts; (7) Bills; (8) Expense Ledgers; (9) Invoices; (10) Payments Made to TWG; (11) Payments Made by Clients; and (12) Receipts and Sales Comp Reports. Thus, the information sought by these interrogatories was readily accessible. (Opposition, 6-7.)

In reply, WG argues that the documents PMH produced in connection with its responses to Requests for Production, Set One are deficient because they are missing over 90% of the requested billing information. (Reply, 1-2.) Therefore, a response referring to those documents is also insufficient.

Additionally, PMH repeatedly referring WG to incomplete documents and its refusal to answer these interrogatories is evidence of bad faith on the part of PMH. (Reply, 1-2.)

The court finds that a further response to each of these interrogatories is required.

Code of Civil Procedure section 2030.230 states:

“If the answer to an interrogatory would necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from the documents of the party to whom the interrogatory is directed, and if the burden or expense of preparing or making it would be substantially the same for the party propounding the interrogatory as for the responding party, it is a sufficient answer to that interrogatory to refer to this section and to specify the writings from which the answer may be derived or ascertained. This specification shall be in sufficient detail to permit the propounding party to locate and to identify, as readily as the responding party can, the documents from which the answer may be ascertained. The responding party shall then afford to the propounding party a reasonable opportunity to examine, audit, or inspect these documents and to make copies, compilations, abstracts, or summaries of them.”

Thus, pursuant to Code of Civil Procedure section 2030.230, PMH is only permitted to respond by referring to documents if the burden of preparing a response from these documents is the same for WG as for PMH.

PMH has not demonstrated that this is the case. As both parties admit, the responsive documents in question are over 10,000 pages. WG’s interrogatories, on the other hand, only ask for the following three pieces of information: (1) total amounts billed, (2) total amounts received and (3) total outstanding receivables. The burden or expense of finding this information from the relevant billing documents would be lower for PMH given that PMH is the party producing these documents for WG’s review.

Therefore, a further response to each interrogatory is required as Code of Civil Procedure section 2030.230 does not apply.

For these reasons, WG’s motion is granted.

Request for Monetary Sanctions

The court may impose sanctions against any party for engaging in conduct constituting a “misuse of the discovery process.” (Code Civ. Proc., § 2023.030 (a).)

Misuse of the discovery process includes “failing to respond or submit to an authorized method of discovery.” (Code Civ. Proc., § 2023.010 (d).)

Additionally, the court shall impose sanctions 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.” (Code Civ. Proc., § 2030.300(d).)

WG requests sanctions of $3,040 in connection with this motion against PMH and/or its counsel, Burris Law. Meissner attests that this compromises of 5 hours of attorney time at $600 per hour, and a $40 filing fee. (Meissner Declaration, ¶ 10.) Specifically, he has spent 3 hours on attempting to resolve issues in connection with this motion and drafting the motion, and anticipates spending 2 hours on reviewing the opposition, drafting a reply and preparing for and attending the hearing. (Id.)

In opposition, PMH requests sanctions of $1,050 against WG for making a motion to compel further responses without substantial justification.

The court is inclined to award sanctions against PMH pursuant to Code of Civil Procedure section 2030.300. because it has unsuccessfully opposed the instant motion without substantial justification.

PMH’s argument that its initial response to these interrogatories was sufficient is without merit for the reasons stated in the court’s ruling.

The court will award sanctions against PMH and its counsel, Burris Law, in the amount of $2,000. This represents 4 hours of attorney time at $400 per hour. The court finds that $400 per hour is a reasonable rate for attorneys of Mr. Meissner’s experience in the Orange County area, and that 5 hours is reasonable given the relative simplicity of issues presented in this motion.

No sanctions will be awarded against WG, as the court finds that WG acted with substantial justification.

WG is to give notice.

2.Motion to compel production

Plaintiff, The Wellness Group, LLC’s (WG) Motion to Compel Further Request for Production, Set One, numbers 5, 10, 11, 13, 14, 15, 16, 17 and 18 and Request for Monetary Sanctions of $3,640 against Defendant, PMH Laboratory, Inc. (PMH) is MOOT as to the request to compel further responses.

The motion is DENIED as to the request for sanctions.

On receipt of responses to requests for production, the propounding party may move for an order compelling a further response if the propounding party deems that a statement of compliance is incomplete, a representation of inability to comply is inadequate, incomplete, or evasive, or an objection in the response is without merit. (See Code Civ. Proc., §§ 2030.310, subd. (a)(1)-(3).)

The responding party has the burden to justify objections in response to a motion filed to compel further responses. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)

Procedural History

WG served Requests for Production, Set One on PMH on December 27, 2021. (Meissner Declaration), ¶ 5, Ex. 1.)

PMH served its response on February 4, 2022. (Id., Ex. 2.)

On August 5, 2022, PMH served Supplemental Responses to Request for Production, Set One, numbers 5, 10, 11, 13-18. (Lam Declaration, ¶ 22, Ex. D.)

On August 11, 2022, PMH served Further Supplemental Responses to these requests. (Lam Declaration, ¶ 23, Ex. E.)

Meet and Confer Efforts

WG submits the declaration of its counsel, Werner Meissner to demonstrate compliance with its statutory meet and confer requirements. Meissner attests that he has made a reasonable and good-faith attempt to meet and confer in that he contacted PMH’s counsel regarding the issues raised in this motion and requested further responses or a plan to provide further responses. (Meissner Declaration, ¶ 8, Ex. 3.) On March 29, 2022, the parties had a meet and confer telephonic discussion where PMH’s counsel agreed to provide further responses or a “concrete plan” by April 1, 2022. (Meissner Declaration, ¶ 9, Ex. 4.)

The Meissner Declaration satisfies the requirements of Code of Civil Procedure section 2031.310(b)(2).

Merits

WG moves to compel a further response to the following requests:

No. 5: EOBs for any and all PERSONS whose COVID testing samples were provided to you by THE WELLNESS GROUP, LLC.

No. 10: Any and all explanation of benefit forms, which includes any and all billing codes for both collection and testing, for each patient whose RT-PCR and/or Antibody testing samples were provided to you by the WELLNESS GROUP, LLC

No. 11: Any and all billing, which include any and all billing codes for both collection and testing, for each patient whose RT-PCR and/or Antibody testing samples were provided to you by the WELLNESS GROUP, LLC.

No. 13: Any and all charges, which include any and all billing codes for both collection and testing, for each patient whose RT-PCR and/or Antibody testing samples were provided to you by the WELLNESS GROUP, LLC.

No. 14: Any and all ledgers, which include any and all billing codes for both collection and testing, for all patients whose RT-PCR and/or Antibody testing samples were provided to you by the WELLNESS GROUP, LLC.

No. 15: Any and all spreadsheets, which include any and all billing codes for both collection and testing, for all patients whose RT-PCR and/or Antibody testing samples were provided to you by the WELLNESS GROUP, LLC.

No. 16: Any and all files, which include any and all billing codes for both collection and testing, for each patient whose RT-PCR and/or Antibody testing samples were provided to you by the WELLNESS GROUP, LLC

No. 17: Any and all accounting documents, which include any and all billing codes for both collection and testing, for each patient whose RT-PCR and/or Antibody testing samples were provided to you by the WELLNESS GROUP, LLC.

No. 18: Any and all books, which include any and all billing codes for both collection and testing, for each patient whose RT-PCR and/or Antibody testing samples were provided to you by the WELLNESS GROUP, LLC.

As discussed above, PMH served Supplemental Responses to Request for Production, Set One, numbers 5, 10, 11, 13-18 on August 5 and August 11, 2022.

Thus, the court finds WG’s motion moot as to the request to compel further responses.

WG’s motion was filed on PMH’s initial responses to these requests. As the responses have now been supplemented, the motion is now MOOT.

Request for Monetary Sanctions

The court may impose sanctions against any party for engaging in conduct constituting a “misuse of the discovery process.” (Code Civ. Proc., § 2023.030 (a).)

Misuse of the discovery process includes “failing to respond or submit to an authorized method of discovery.” (Code Civ. Proc., § 2023.010 (d).)

Additionally, the court shall impose sanctions against “any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to a demand, 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.” (Code Civ. Proc., § 2031.310(h).)

WG requests sanctions of $3,640 in connection with this motion against PMH and/or its counsel, Burris Law. Meissner attests that this compromises of 6 hours of attorney time at $600 per hour, and a $40 filing fee. (Meissner Declaration, ¶ 10.) Specifically, he has spent 4 hours on attempting to resolve issues in connection with this motion and drafting the motion, and anticipates spending 2 hours on reviewing the opposition, drafting a reply and preparing for and attending the hearing. (Id.)

In opposition, PMH requests sanctions of $1,925 against WG for making a motion to compel further responses without substantial justification.

The court does not award sanctions against either party, as it finds that each party acted with substantial justification such that awarding sanctions would be unjust.

WG is to give notice.

Future Events:

4/7/23 - MSC

5/8/23 – Jury Trial