Judge Kerry Bensinger, Case Number: 20STCV32190, Date: 2023-09-21 Tentative Ruling

MOTION TO COMPEL DEFENDANT CARAMEDIX, INC.’S PERSON MOST KNOWLEDGEABLE DEPOSITION & PRODUCTION OF RECORDS

On August 24, 2020, Plaintiffs, Adrian Hernandez, Raoul Guzman, and Araseli Zuniga, initiated this wrongful death action against Defendant, Caramedix, Inc. (“Caramedix”), arising from a motor vehicle incident. Defendant is a health care rideshare service. Plaintiffs, the children of Decedent, Christina Garcia, allege Caramedix’s driver, Robert Villa, failed to properly restrain Decedent’s wheelchair in their rideshare van. While transporting Decedent to a DaVita dialysis center, the driver abruptly stopped the van, causing Decedent to fall. Decedent suffered injuries which ultimately resulted in her death.

On August 22, 2023, Plaintiffs filed a motion to compel Caramedix to provide their person most knowledgeable (PMK) for deposition and to produce documents. Plaintiff seeks sanctions against Caramedix.

On August 25, 2023, Plaintiffs filed motions to compel Caramedix’s further responses to Plaintiffs’ Form Interrogatories, Set One, Special Interrogatories, Set One, and Requests for Production of Documents, Set One. Plaintiff also seeks sanctions against Caramedix in connection with these motions.

These motions were heard on September 21, 2023. The Court issued a tentative ruling granting Plaintiffs’ motions. With respect to the motions to compel further responses to the Form and Special Interrogatories, the Court indicated Caramedix was required to provide a privilege log if interposing objections based on privilege. At the hearing, counsel for Caramedix provided the Court with case law standing for the proposition that the Civil Discovery Act does not require a responding party to create a privilege log when objecting to interrogatories based on privilege. The Court continued these motions and ordered the parties to submit supplemental briefing on this narrow issue. The Court orally adopted the tentative ruling in all other respects.

The parties have filed supplemental briefs. There is no dispute the privilege log issue concerns Form Interrogatory Nos. 12.1, 12.2, and 16.1-16.5, and Special Interrogatory Nos. 1-4 only.

The Court now sets forth the previously adopted ruling (Section A. September 21, 2023 Tentative Ruling) and rules on Form Interrogatory Nos. 12.1, 12.2, and 16.1-16.5, and Special Interrogatory Nos. 1-4 (Section B. October 4, 2023 Supplemental Briefing.)

Any party may obtain discovery by taking in California the oral deposition of any person. (Code Civ. Proc., § 2025.010.) “If, after service of a deposition notice, a party to the action…without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” (Code Civ. Proc., § 2025.450, subd. (a).)

Under Code of Civil Procedure sections 2030.300 and 2031.310, parties may move for a further response to interrogatories and requests for production of documents where an answer to the requests are evasive or incomplete or where an objection is without merit or too general.¿ A motion to compel further response to requests for production “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.”¿ (Code Civ. Proc., § 2031.310, subd. (b)(1).)¿¿

Notice of the motions must be given within 45 days of service of the verified response, otherwise, the propounding party waives any right to compel a further response.¿ (Code Civ. Proc., §§ 2030.300, subd. (c); 2031.310, subd. (c).)¿ The motions must also be accompanied by a meet and confer declaration.¿ (Code Civ. Proc., §§ 2030.300, subd. (c); 2031.310, subd. (c).)¿¿

Finally, Cal. Rules of Court, Rule 3.1345 requires that all motions or responses involving further discovery contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for compelling further responses.¿ (Cal. Rules of Court, Rule 3.1345, subd. (a)(3).)¿

Code of Civil Procedure section 2023.030 is a general statute authorizing the Court to impose discovery sanctions for “misuse of the discovery process,” which includes (without limitation) a variety of conduct such as: making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to discovery; and unsuccessfully and without substantial justification making or opposing a motion to compel or limit discovery.¿ (Code Civ. Proc., § 2023.010.)¿¿

If sanctions are sought, Code of Civil Procedure section 2023.040 requires that the notice specify the identity of the person against whom sanctions are sought and the type of sanction requested, that the motion be supported in the points and authorities, and the facts be set forth in a declaration supporting the amount of any monetary sanction.¿¿¿¿

“If a motion under [Code of Civil Procedure section 2025.450] subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, 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.”¿ (Code Civ. Proc., § 2025.450, subd. (g)(1).)¿¿¿¿

With regard to a motion to compel further responses to interrogatories and requests for production, Code of Civil Procedure sections 2030.290 and 2031.310 provide that sanctions shall be awarded against any party, person or attorney who unsuccessfully makes or opposes a motion to compel further responses, unless the Court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of sanctions unjust.¿ (Code Civ. Proc., §§ 2030.290, subd. (c); 2031.310, subd. (h).)

Plaintiffs properly noticed Caramedix’s PMK deposition on four occasions and Caramedix has yet to produce a person most knowledgeable for deposition or the documents requested in the deposition notice. Caramedix argues this motion should be denied for two reasons. First, defense counsel has finally identified Caramedix’s person(s) most knowledgeable and will work with plaintiffs’ counsel to complete the deposition. Further, Caramedix agrees to provide responses to the production requests. As such, counsel for Caramedix does not oppose producing a PMK for deposition or providing responsive documents. Second, the deposition categories are overbroad and not reasonably calculated to lead to the discovery of admissible evidence.

Both arguments fail. No doubt, complications with one’s client complicate matters, but are no justification for the delay and is of little solace to opposing counsel. Plaintiffs have tried to schedule Caramedix’s PMK deposition since December of 2021. Plaintiffs are entitled to this discovery. Given this history, a Court order is warranted.

Second, Caramedix’s objections to the deposition categories are boilerplate and lack merit. The PMK categories seek basic information relevant to the prosecution of this case, such as information about the incident, the driver’s employment status, driving history, and training, policies and procedures for securing wheel-chair bound clients, the condition of the subject transport van, and communications and reports regarding the incident. These categories are reasonably calculated to lead to the discovery of admissible evidence; they are not overbroad.

Based on the foregoing, Plaintiffs are entitled to an order compelling Caramedix to provide person(s) most knowledgeable for deposition and to provide responsive documents to the documents requested in the deposition notice.

Plaintiffs seek further responses to Requests for Production of Documents, Set One, Nos. 2, 3, 7-11, 13, 16-17, 19-20, 28-30, 33-35, 41, 43, 45-53, and 54-56, Form Interrogatories, Set One, Nos. 12.1-12.3, 15.1, and 16.1-16.5,^{^[2]} and Special Interrogatories, Set One, Nos. 1-4, 6-14, 16-22, 24-31, and 33- 35.

Caramedix argues these motions should be denied for the same reasons discussed above. Defense counsel lost contact with Caramedix’s representative and could not obtain verifications for the discovery responses. The argument lacks merit. Defense counsel’s inability to contact their client has no bearing on whether Plaintiffs are entitled to discovery sought. Given that Plaintiffs propounded this discovery on December 20, 2021, it is not clear Caramedix will provide responses to Plaintiffs’ discovery absent a court order.

Caramedix asserted meritless objections to the Requests for Production. Such responses are not code compliant. The production requests seek relevant information that are sufficiently limited in time and scope. To the extent Caramedix asserts an objection based on privilege, Caramedix has not provided a privilege log showing that Plaintiffs’ discovery request intrudes upon the privilege.

Accordingly, the motion is GRANTED as to Request for Production of Documents, Set One, Nos. 2, 3, 7-11, 13, 16-17, 19-20, 28-30, 33-35, 41, 43, 45-53, and 54-56.

Section 2030.220(a) requires responses to each interrogatory “to the extent possible” which are “as complete and straightforward as the information reasonably available” to the responding party.¿

Here, Caramedix asserted meritless objections and incomplete responses to Form Interrogatories 12.3 and 15.1.¿ Such responses are not code compliant.¿ The Form Interrogatories, propounded in December of 2021, are not overbroad or premature.

Caramedix asserted meritless objections to the Special Interrogatories. Such responses are not code compliant. The Special Interrogatories are sufficiently limited and not overbroad. Caramedix’s objections based on the intrusion of privacy of the driver (Robert Villa) involved in the underlying incident also lack merit. The assertion of privacy does not overcome the relevancy of the information sought (driving history and contact information of the driver).

Accordingly, the motion as to Special Interrogatories, Set One, Nos. 6-14, 16-22, 24-31, and 33- 35 is granted.

At the hearing, counsel for Caramedix cited Hernandez v. Superior Court (2003) 112 Cal.App.4th 285 for the proposition that Caramedix is not required to produce a privilege log when asserting privilege over a document sought to be identified by an interrogatory. In Hernandez, the trial court ordered the responding party to provide a privilege log with its responses to interrogatories and requests for production. The petitioners argued that “the trial court had no power to impose the same requirements upon a claim for privilege in response to interrogatories.” (Hernandez, 112 Cal.App.4th at p. 292.) The Court of Appeal reviewed the language of the Civil Discovery Act and agreed that a privilege log “is unnecessary with regard to answering interrogatories seeking the identification of documents.” (Id. at p. 293.) However, the Court of Appeal also noted that “[i]f an interrogatory asks the responding party to identify a document, an adequate response must include a description of the document.” (Id.) As Plaintiff’s supplemental briefing points out, Caramedix’s responses to the Form and Special Interrogatories are devoid of any description of a document which it claims to be privileged.

As discussed below, while Caramedix’s reliance on Hernandez is correct, its discovery responses remain deficient.

Form Interrogatory 12.1 seeks the following: “State the name, ADDRESS, and telephone number of each individual: (a) who witnessed the INCIDENT or the events occurring immediately before or after the INCIDENT; (b) who made any statement at the scene of the INCIDENT; (c) who heard any statements made about the INCIDENT by any individual at the scene; (d) who YOU OR ANYONE ACTING ON YOUR BEHALF claim has knowledge of the INCIDENT (except for expert witnesses covered by Code of Civil Procedure section 2034).”

Caramedix provided the name of the driver (Robert Villa) in response to No. 12.1, but resists further responses based upon the work product privilege. In its supplemental brief, Caramedix states: “Caramedix’s position as it relates to the attorney work product privilege is consistent with the Supreme Court’s holding in Coito v. Superior Court (2012) 54 Cal. 4th 480, 502 that names of persons counsel selected to interview and recorded witness interviews may be protected from disclosure where it would otherwise reveal the attorney’s evaluation, opinions, and impressions, ‘or would result in opposing counsel taking undue advantage of the attorney’s industry or efforts.’ Caramedix does not disagree that per Coito states [sic] a preliminary showing may be required to substantiate a claim for work product.” (Supplemental Opp., pp. 1-2.) To state Caramedix’s position is to refute the adequacy of its responses.

Caramedix concedes that Coito requires a preliminary showing to substantiate a claim for work product. Plaintiffs argue Caramedix knows which DaVita employees witnessed the incident. As such, Caramedix must include the names of the DaVita employees that purportedly witnessed the accident, or provide sufficient information to substantiate its invocation of the work product privilege. Caramedix failed to make such a showing when it served its initial response. Nor has it cured the deficiency despite its own recognition of the deficiency.

Form Interrogatory No. 12.2: “Have YOU OR ANYONE ACTING ON YOUR BEHALF interviewed any individual concerning the INCIDENT? If so, for each individual state: (a) the name, ADDRESS, and telephone number of the individual interviewed; (b) the date of the interview; and (c) the name, ADDRESS, and telephone number of the PERSON who conducted the interview.”

Caramedix objected to No. 12.2 pursuant to Coito and work product. No substantive response was provided. As with 12.1, Caramedix did not and has not made a preliminary showing to justify its invocation of the work product privilege.

Caramedix’s supplemental brief argues it “never took issue with identifying the existence of a document that is privileged in response to an interrogatory.” Caramedix’s argument is not well-taken. Form Interrogatory Nos. 16.1(d), 16.2(c), 16.3(d), 16.4(d), and 16.5(d) each request identification of documents. In response, Caramedix objected to these interrogatories “on the grounds that it seeks information protected from disclosure by the attorney work product doctrine and attorney-client privilege.” As discussed above, this is not an adequate response. (See Hernandez, supra, 112 Cal.App.4th at p. 293.)[3] At a minimum, Caramedix must provide a description of the documents. It did not and has not.

As with Form Interrogatory Nos. 12.1, 12.2, and 16.1-16.5, Caramedix asserted objections to Special Interrogatory Nos. 1-4 based on work product. Absent a showing to substantiate its claim of work product, Caramedix’s responses are deficient. Caramedix does not offer any argument to the contrary with respect to Special Interrogatory Nos. 1-4.

Accordingly, the motion as to Special Interrogatories, Set One, Nos. 1-4 is granted.

Plaintiffs seek sanctions against Caramedix in connection with the foregoing motions. As Caramedix has opposed these motions without substantial justification, sanctions are warranted. (Code Civ. Proc., §§ 2025.450, subd. (g)(1); 2030.290, subd. (c); 2031.310, subd. (h).) Accordingly, sanctions are imposed against Caramedix in the total sum of $2,480, consisting of 4 hours at plaintiffs’ counsel’s hourly rate, 2 hours at plaintiffs’ counsel’s paralegal’s hourly rate, and $180 in filing fees.

The motion to compel the deposition of Defendant Caramedix, Inc.’s person most knowledgeable and to produce documents responsive to the documents requested in the deposition notice is granted. Caramedix is ordered to provide person(s) most knowledgeable for deposition and responsive documents to the deposition notice within 10 days of the initial order issued on September 21, 2023.

The motions to compel further responses to discovery are granted. Caramedix is ordered to provide verified, objection-free responses to Plaintiffs’ Request for Production of Documents, Set One, Nos. 2, 3, 7-11, 13, 16-17, 19-20, 28-30, 33-35, 41, 43, 45-53, and 54-56, Form Interrogatories, Set One, Nos. 12.3 and 15.1, and Special Interrogatories, Set One, Nos. 6-14, 16-22, 24-31, and 33- 35, within 10 days of the initial order issued on September 21, 2023.

The motions to compel further responses to discovery are also granted as to the remaining at-issue discovery requests. Caramedix is ordered to provide verified, objection-free responses to Form Interrogatories, Set One, Nos. 12.1, 12.2, and 16.1-16.5, and Special Interrogatories, Set One, Nos. 1-4 within 10 days of this order issued on October 4, 2023.

The request for sanctions is granted. Caramedix is ordered to pay $2,480 in sanctions to Plaintiffs, by and through their counsel, within 30 days of the initial order issued on September 21, 2023.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

[1] There is no dispute about the procedural requirements (IDC, timeliness, or meet and confer) for bringing these motions to compel further responses.

[2] Plaintiffs originally sought further responses to FROG Nos. 20.3 and 20.4. In Reply, Plaintiffs do not offer any argument regarding Nos. 20.3 and 20.4. As such, the Court finds the motion is moot as to this discovery.

[3] As the Hernandez Court stated, “In short, a responding party may object to an interrogatory that seeks privileged information by clearly stating the objection and the particular privilege invoked. But the existence of a document containing privileged information is not privileged. Interrogatories may be used to discover the existence of documents in the other party's possession. If an interrogatory asks the responding party to identify a document, an adequate response must include a description of the document. Thus, we agree with petitioners that a “privilege log” is unnecessary with regard to answering interrogatories seeking the identification of documents. (Hernandez, supra, 112 Cal.App.4th 285, 293 [cleaned up].) The appellate court went on to say, “petitioners have no right to refuse to identify documents in response to interrogatories, even if they may properly refuse to produce them later, based upon a claim of privilege.” (Id. at p. 294.)