Judge: Latrice A. G. Byrdsong, Case: 23STLC03804, Date: 2024-02-05 Tentative Ruling
Case Number: 23STLC03804 Hearing Date: February 5, 2024 Dept: 25
Hearing Date: Monday, February 05, 2024
Case Name: DOUGLAS
L. HALLETT, and individual v. VCA Inc., a Delaware corporation; MARIE KERL,
DVM, an individual, MICHAEL KWAN, DVM, an individual; and DOES 1-20,
Case No.: 23STLC03804
Motion: Motions to Compel Further Responses to Plaintiff’s Request for Production
and Requests for Monetary Sanctions
Moving Party: Plaintiff
Douglas Hallett, In Pro-per
Responding Party: Defendants
VCA Animal Hospitals, Inc. (erroneously sued as VCA, Inc.), Marie Kerl, DVM,
and Michael Kwan, DVM
Notice: OK
Tentative Ruling: Plaintiff
Douglas Hallett’s Motions to Compel Further Responses to Plaintiff’s Request
for Production is GRANTED in part and DENIED in part.
Defendants are ordered to provide further responses to Requests
Nos. 3 and 4. Defendants are NOT required to provide further responses to
Requests No. 1 and 2.
Plaintiff’s Request for
Sanctions is DENIED.
______________________________________________________________________________
SERVICE:
[X]
Proof of Service Timely Filed (CRC, rule 3.1300) OK
[X]
Correct Address (CCP §§ 1013, 1013a) OK
[X]
16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK
OPPOSITION: Filed as of January 23, 2024 [ ] Late [ ] None
REPLY: Filed as of January 29, 2024 [ ] Late [ ] None
BACKGROUND
Plaintiff
Douglas L. Hallett (“Plaintiff”) filed this Complaint against Defendants VCA,
Inc. (“VCA”), Marie Kerl, DVM (“Kerl”), and Michael Kwan, DVM (“Kwan”)
(collectively, “Defendants”). The action arises out of the death of Plaintiff’s
pet dog, Rosie, which occurred on October 6, 2022.
On
August 07, 2022, Defendants filed a motion to strike portions of Plaintiff’s
Complaint. The motion sought to strike the allegations supporting the claim for
exemplary damages under Civil Code § 3340 as well as the request for judicial
referral of the individual defendants to the California Veterinary Medical
Board for disciplinary action. (See Notice of Motion at pg. 2.) On September
27, 2023, the Court denied the motion in its entirety.
Defendants
filed their Answer to Plaintiff’s Complaint on October 06, 2023.
On
December 28, 2023, Plaintiff filed the instant Motions to Compel Further
Responses to Plaintiff’s Request for Production and Requests for Monetary
Sanctions. Defendants filed in opposition. Plaintiff files in reply to the
opposition.
MOVING PARTY
POSITION
Plaintiff
prays for the Court to issue an order compelling Defendants to serve further
responses, without objections to Plaintiff’s Request for Production, Set No. 1,
served on each Defendant on August 26, 2023. Plaintiff argues that Defendants
have failed without justification to serve proper responses to Plaintiff’s
requests despite receiving numerous opportunities to respond properly,
especially after receiving specific advice as to the inadequacy of the
responses they did provide. Plaintiff additionally requests that the Court
award monetary sanctions against Defendants and their counsel for $4,561.65.
OPPOSITION
In opposition, Defendants argue that
Plaintiff’s Motion is without merit as Plaintiff’s Request is overbroad, not
relevant, and not reasonably calculated to lead to the discovery of admissible
evidence. Defendants additionally argue that Plaintiff failed to meet and
confer in compliance with CCP § 2031. 230. Finally, Defendants argue that
Sanctions are not warranted in this case as Plaintiff’s motion is without
merit, and Defendants’ objections are justified under the circumstances.
Defendants specifically do not seek sanction if they prevail in opposition,
preferring to continue to litigate with the hope that future discovery disputes
can be resolved informally.
REPLY
In reply,
Plaintiff argues that Defendant misstated the import of Plaintiff’s indication
that he did not then need further responses and that Defendants have no valid
objection to producing relevant diagnostic and treatment materials from all VCA
hospitals and Clinics other than VCA Foothill. Plaintiff additionally argues
that Defendants continue to ignore their obligations to at least identify the
documents it has provided to Plaintiff. Further, the Defendants themselves
concede that their prior responses to Plaintiff’s request were inadequate by
repeatedly amending them and that since Defendants’ January 23 responses remain
defective, sanctions should be awarded to deter their chronic misconduct.
ANALYSIS
I. Legal Standard
“Any party may obtain discovery . . . by inspecting,
copying, testing, or sampling documents, tangible things, land or other
property, and electronically stored information in the possession, custody, or
control of any other party to the action.”¿ (Code Civ. Proc., §
2031.010(a).)
“The party to whom a demand for inspection, copying,
testing, or sampling has been directed shall respond separately to each item or
category of item by any of the following:
(1) A
statement that the party will comply with the particular demand for inspection,
copying, testing, or sampling by the date set for the inspection, copying,
testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section
2031.030 and any related activities.
(2) A
representation that the party lacks the ability to comply with the demand for
inspection, copying, testing, or sampling of a particular item or category of
item.
(3) An
objection to the particular demand for inspection, copying, testing, or
sampling.”
(Code Civ. Proc., § 2031.210(a).)
“On receipt of a response to a demand for inspection,
copying, testing, or sampling, the demanding party may move for an order
compelling further response to the demand if the demanding party deems that any
of the following apply:
(1) A statement of compliance with the demand is
incomplete.
(2) A representation of inability to comply is inadequate,
incomplete, or evasive.
(3) An
objection in the response is without merit or too general.”
(Code Civ. Proc., § 2031.310(a).)¿
A demanding party’s motion for an order compelling a
further response must “set forth the facts showing good cause justifying the
discovery sought by the demand.”¿ (Code Civ. Proc., §¿2031.310(b)(1).)¿
Further, a demanding party’s motion for an order compelling a further response
must “be accompanied by a meet and confer declaration under Section 2016.040.”¿
(Ibid. at §¿2031.310(b)(2).) ¿ Pursuant to Section 2016.040, “[a] meet
and confer declaration in support of a motion shall state facts showing a
reasonable and good faith attempt at an informal resolution of each issue
presented by the motion.”¿ (Ibid., § 2016.040.)¿
A demanding party’s motion for an order compelling a
further response must, additionally, be accompanied by a separate
statement.¿ (Cal. Rules of Court, rule 3.1345(a)(3).)¿ The separate
statement must comply with the requirements set forth in California Rules of
Court, rule 3.1345(c).¿ (Ibid.)
Further, “[u]nless notice of this motion 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 demanding party
and the responding party have agreed in writing, the demanding party waives any
right to compel a further response to the demand.”¿ (Code Civ. Proc., §
2031.310(c).)
“Except as provided in
subdivision (j), the court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or attorney who
unsuccessfully makes or opposes a motion to compel 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).)
II. Discussion
A.
Notice of the Motions
Notice
of the motion to compel further must be given “within 45 days of service of the
verified response, or any supplemental verified response, or any specific later
date to which the requesting party and the responding party have agreed in
writing,” otherwise, the propounding party waives any right to compel a further
response. (Code Civ. Proc., § 2030.300, subd. (c); § 2031.310, subd. (d).)
Here,
Defendants served initial identical discovery responses electronically on October
2, 2022. (Motion, Hallet Decl., ¶3.) Following “meet and confer” efforts, the
parties agreed Plaintiff would have an additional 45 days after Defendant’s
production of additional documents by December 15, 2023, to file the instant
Motions. (Motion, Hallet Decl., Ex. N.) The Motions were timely filed and
served on December 28, 2023.
B.
Meet and Confer Requirement
Next,
the Motions must be accompanied by a “meet and confer” declaration. (Code Civ.
Proc., § 2030.300, subd. (b)(1); 2031.310, subd. (b)(2).)
As
noted above, the supporting declaration demonstrates an effort by Plaintiff to
obtain further responses from Defendant after service of the original responses
for almost three months, with agreements by defense counsel to provide
supplemental responses. (Motion, Hallet Decl. ¶¶18-23) Specifically Plaintiff
states that on October 5, 2023, Plaintiff sent a meet and confer letter to
Defendants’ counsel, outlining the deficiencies within Defendant’s responses. (Id.
¶ 5, Ex. D) This was subsequently followed by a telephonic meet and confer
and additional correspondence dealing with issues related to the defective
production. (Id. ¶ 6; Exhs. F,M) Despite this, Plaintiff states that
Defendants’ counsel has not offered a substantive response to Plaintiff’s
repeated advice about the deficiencies in Defendants’ responses and production.
(Id. ¶¶ 18-23.) Thus, the meet and confer requirement is satisfied.
C.
Separate Statement Requirement (CRC Rule 3.1345)
Finally,
Cal. Rules of Court Rule 3.1345 requires all motions or responses involving
further discovery to 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).)
Alternatively, “the court may allow the moving party to submit a concise
outline of the discovery request and each response in dispute.” (Code Civ.
Proc., § 2031.310, subd. (b)(3).)
Here,
the Motions are accompanied by separate statements. (12/28/23 Separate
Statements.) In the Separate Statement, Plaintiff sets forth the Requests for
Production for which he seeks an order compelling further response.
Plaintiff
moves to compel further responses to his Requests for Production because Defendant’s
responses consisted only of meritless and boilerplate objections, failing to
comply with the requirements under CCP § 2031.240. Plaintiff argues that
Defendants’ responses continue virtually the same general boilerplate
objections to all of Plaintiff’s requests without any effort to explain or
identify how each objection applied to any request or part of the request.
Plaintiff further argues that Defendant’s responses improperly rely upon a
myriad of meritless, overbroad, and general objections to entire categories of
documents without providing a valid reason for Defendants’ inability to comply
and that Defendants fail to identify persons or organizations who have or are
believed to have, possession, custody or control of these unproduced items.
In
opposition, Defendants argue that Plaintiff’s request is overbroad, irrelevant,
and not likely to lead to the discovery of admissible evidence. Defendants
argue that Plaintiff’s requests are so overbroad that Defendants do not know or
have a reasonable belief of who would be in possession, custody, or control of
the items Plaintiff requests even after a diligent search and reasonable
inquiry. Defendants emphasize that Plaintiff admits that his requests seek
“information from each of Defendants’ more than 1,000 hospitals and clinics,”
which is incredibly overbroad, thus justifying Defendants’ objections.
Defendants additionally state in their supporting declaration that they are
serving further responses indicating Lifelearn Inc. and ProSites Inc. may have
documents responsive to Request No. 4. (Burdine Decl. at ¶ 8, Ex. B, C, and D.)
i.
Request for Production No. 1 and 2
Plaintiff firstly requests “Documents
reflecting, relaying, discussing, and/or referring to triage procedures and
protocols, Urinary Tract Infection diagnosis and treatment procedures and
protocols, and Ovarian Remnant Syndrome diagnosis and treatment procedures and
protocols, including those sent to and/or received from any person, in effect
at VCA Foothill Veterinary Hospital (“VCA Foothill”) and/or at any other VCA
Inc. hospital or clinic one year before and extending through July 15, 2022.”
Plaintiff
secondly request “Documents reflecting, relaying, discussing, and/or referring
to triage procedures and protocols, Urinary Tract Infection diagnosis and
treatment procedures and protocols, and Ovarian Remnant Syndrome diagnosis and
treatment procedures and protocols, including those sent to and/or received
from any person, in effect at VCA Foothill and/or at any other VCA Inc.
hospital or clinic after July 15, 2022, through the date of production.”
Plaintiff
states in his separate statement that Requests 1 and 2 seek the same
information for two periods. Plaintiff argues that the information is essential
because it is incontestable that Defendants maintained both UTI and ORS
diagnosis and treatment procedures and protocols and misrepresented that truth
here. Plaintiff further argues that these misrepresentations constitute an
improper statement of compliance, an inability to comply, and an abuse of the
discovery process within the meaning of Code of Civil Procedure Section
2023.030(f). Plaintiff prays for the Court to order Defendants, in addition to
withdrawing general and boilerplate objections, to further respond to Requests
1 and 2, including information developed from VCA hospitals and clinics other
than VCA Foothill as such material is vital to understanding VCA's
institutional knowledge of standard diagnostic and treatment protocols, and
shed light on whether VCA hospitals and clinics other than VCA Foothill share
VCA's corporate misunderstanding of their medical obligations and have taken
action to correct VCA's deficient and substandard medical policies.
In
opposition, Defendants cite Plaintiff’s meet and confer letter, issued on
October 05, 2023, in which Plaintiff states, “At this time, I do not need any
further responses from your clients as to Requests 1 and 2 (other than from VCA
hospitals and clinics not already surveyed as discussed in the paragraph
immediately below), but will be exploring this matter at trial as further
explained below.” (Opp. Separate Statement; Hallet Dec, Exhibit E, pg. 2;
emphasis added.) Defendants argue that VCA has approximately 189 hospitals in
California alone and that Plaintiff’s pet was not treated at dozens of
different VCA hospitals, thereby providing no conceivable justification for
Defendants to incur the unjust costs of surveying hospitals that had nothing to
do with the care a single hospital that provided Plaintiff’s pet. Defendants
additionally argue that the information that Plaintiff requests is publicly
available on VCA’s website.
In
reply, Plaintiff asserts that he is entitled to the material requested from
each of Defendants’ 1,000-plus hospitals and clinics. He has reserved this
entitlement in his initial meet and confer letter and has tried to enforce it.
Plaintiff continues that Defendants are the best sources for that information,
citing Mead Reinsurance Co. v. Superior
Court (1986) Cal App 3d 313. Plaintiff argues that he seeks
tightly defined limited information from each of Defendants’ more than 1,000
hospitals and clinics material relating to specific diagnostic and treatment
protocols that are relevant to Rosie’s treatment and that such materials are
highly relevant to the question of the proper standard of care and whether VCA
locations other than VCA foothill recognize the impropriety of the care
administered to Rosie.
The Court finds
that Defendants’ responses are code compliant as they have explained their
inability to comply with this request. While Plaintiff’s request seeks to find
discoverable information relevant to showing the standard of care for Rosie,
the Court fails to see the relevance considering the volume of the requested
information, and the amount of time and expense it would take for Defendants to
provide the relevant information to Plaintiff. Defendants correctly point out
that Rosie was not treated at every VCA location but rather at VCA Foothill.
Accordingly, Defendant’s Motion is DENIED as to Request No. 1 and 2.
ii.
Request for Production No. 3
Plaintiff
requests “Documents reflecting, relaying information about, discussing and/or
referring to asking party and/or his late dog Rosie and/or the contentions that
you or anyone acting on your behalf did or did not provide Rosie care and
treatment consistent with the standard of care between July 12, 2022 and
October 6, 2022, including internal and external communications by and/or to,
among others and without limitation, Todd Lavender, DVM, Natalie Reinert, DVM,
medical staff members of VCA Foothill, Trina Sutton, and Estelle Gaebler
referring to asking party and/or Rosie and/or to such care and treatment (e.g.
if you or anyone acting on your behalf disputes any of the contentions
specified in paragraphs 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23,
24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, and/or
42 of the Complaint, please provide documents supporting such position as to
each such disputed contention.)”
Plaintiff
argues that Defendants have not provided sufficient information to perform such
an evaluation. Defendants' privilege log is not sufficiently particularized to
a specific Request. It gives Plaintiff no basis for determining which Request 3
documents legitimately fall within any claim of privilege or how the privilege
claim is justified in relationship to the specific Request. Defendants have not
met the requirements for a proper privilege log. The Request is neither vague
nor ambiguous, and Defendants have not attempted to explain how it can be so
characterized. The information sought also clearly falls within the scope of
discovery California law recognizes.
In
opposition, Defendants argue that it is clear from their privilege log that
these communications are between VCA’s in-house counsel and various VCA
employees. Plaintiff himself is aware of both of VCA’s in-house counsel(s) as
Plaintiff has communicated directly with them. Defendants emphasize that the
only response that refers to Defendants’ privilege log is Defendants’ response
to Plaintiff’s Request for Production No. 3. Thus, Plaintiff already has the
information. Further, Plaintiff’s argument that the subject matters are “vague”
on Defendants’ privilege log is irrelevant as the subjects are the subject line
from the attorney-client privilege emails Defendants are withholding. Further
description of the subject of the communications would invade the attorney-client
privilege and attorney work product doctrine. The only reason Defendants placed
these privileged communications on a privilege log in the first place was to
meaningfully meet and confer with Plaintiff in the hope of not wasting the
Court’s resources on such a frivolous motion.
In
reply, Plaintiff argues that Defendants have offered no proof that all of its
hospitals and clinics are unaware of Rosie’s case when Plaintiff has provided
evidence that at least 60 have been informed. The fact that none of the
documents have been produced raises the question of whether any diligent search
has been made for responsive documents and if more discoverable documents would
surface.
Code
of Civil Procedure § 2031.240(c)(1) provides that if an objection is based on a
claim of privilege or a claim that the information sought is protected work
product, the response shall provide sufficient factual information for other
parties to evaluate the merits of that claim, including, if necessary, a
privilege log. (Code Civ. Proc., § 2031.240(c)(1).) Here, the Court notes that
while Defendants reference their privilege log in their declaration and
separate statement, Defendants do not provide the privilege log in their
supporting documents. The Court finds that Plaintiff has good cause for seeking
production of documents requested. Thus, Defendants are ordered to provide
a code-compliant response to the request. Parties may stipulate to a
protective order to protect the rights of non-litigants and other confidential
and personal information and may provide a privilege log, as set forth in Code
of Civil Procedure § 2031.240.
iii.
Request for Production No. 4
Plaintiff
requests, “Documents reflecting, discussing, and/or referring to VCA Inc.’s
licensing of marketing and and/or [sic] other intellectual property from
ProSites Inc. and/or LifeLearn Inc. for use on VCA Inc.’s website and/or on the
websites of its affiliated hospitals and clinics, and to such use, including,
without limitation, contracts and/or agreements defining VCA Inc.’s right to
use such materials and the terms of such use, procedures and practices in
effect to evaluate and assure the accuracy and quality of such intellectual
property, and disclaimers and other warnings communicated from and/or to any
person about the appropriate use of such intellectual property.”
Plaintiff
argues that there needs to be a specific identification of what documents they
have produced and what documents they have that do not fall within the language
of the Request and within the meaning of the statement of
compliance/noncompliance requirements. Plaintiff is entitled to a valid
statement and production covering both Defendants' compliance and their
noncompliance.
In
opposition, Defendants argue that contrary to Plaintiff’s assertion that the
referenced protective order to this request was without legal basis, as seen in
Plaintiff’s Request No. 4, Plaintiff is requesting intellectual property (and
licensing materials) between VCA and ProSites Inc. and LifeLearn Inc. Such a
request is inherently confidential, and Defendants objected as such. Plaintiff
also requests all contracts or agreements defining VCA’s right to use such
materials from these third-party companies. Consequently, Plaintiff’s request
is overbroad and irrelevant to the subject of this litigation. Second,
Defendants’ further response to Request No. 4 noted that agreements would be
produced pursuant to a protective order. (Burdine Decl., ¶ 6.) Defendants
agreed to produce responsive documents in their possession, custody, or control
(VCA0089-109) without a protective order. Defendants redacted the documents as
necessary to protect confidential information. Defendants are serving second
further responses noting that Lifelearn Inc. and ProSites Inc. may have
additional responsive documents. (Burdine Decl., ¶ 8, Exs. B, C, and D.) This
second further response does not reference a protective order.
In reply, Plaintiff argues that the
financial terms of VCA’s relationship with Lifelearn, Inc. are relevant to this
case as the information will shed light on VCA’s cavalier approach to medical
and scientific knowledge and willingness to pay for professional peer-reviewed
medical research. Plaintiff further argues that nothing is automatically
private about the financial terms of Defendants’ commercial business
relationship, and they do not involve potentially protected personal
information. Further, Plaintiff argues that Defendant’s argument of trade
secrets protection constitutes bad faith as Defendants have not listed any
documents that allegedly fall within the trade secrets privilege even after
three failed attempts to provide a meaningful one.
According to Code of Civil Procedure §
2031.060(a)-(b), a party that receives a discovery request “may promptly move
for a protective order” that will protect the party from “unwarranted
annoyance, embarrassment, or oppression, or undue burden and expense,” and may
also protect the party from having to divulge trade secrets or other
confidential or commercial information. Here, Defendants have not
promptly moved for a protective order and have not stipulated to a protective
order to protect any private or proprietary information. Though the Court notes
that Defendants do provide a copy of their drafted protective order, such
protective order was never sought in this case. Furthermore, Defendant has not
provided a privilege log, per §¿2031.240, or identified “any documents or
category of documents being produced that are responsive to this request for
production,” per § 2031.280. Thus the Court finds that Defendant has good cause
for seeking production of documents requested. Thus, Defendants are
ordered to provide a code-compliant response to the request. The parties
may stipulate to a protective order to protect any trade secrets and business
and proprietary information and may provide a privilege log in response.
D.
Sanctions
Plaintiff
requests monetary sanctions in the amount of $4561.65. (Hallet Decl. ¶ 24.)
Code of Civil Procedure section 2031.310 provides that, “the court shall impose
a monetary sanction under Chapter 7 (commencing with Section 2023.010) against
any party, person, or attorney who unsuccessfully makes or opposes a motion to
compel further response to a demand . . . .” (Code Civ. Proc., § 2031.310,
subd. (h).)
Given that the
Motion is granted in part and denied in part, the Court does not find that Defendants
have unsuccessfully opposed the Motion. Moreover, Code of Civil Procedure
§§ 2023.010 and 2023.030 list the available discovery sanctions but do not
independently authorize a court to impose specific sanctions. (City of
Los Angeles v. PricewaterhouseCoopers (2022) 84¿Cal.App.5th¿466,
503-504.) Thus, a court’s authority to impose the sanctions specified in
§§¿2023.010 and 2023.030 must arise from a statute governing a particular
method of discovery. (Id.) Here, since neither party has
successfully made or opposed the motion, the Court order will not reach the
issue of sanctions. For this reason, the Court does not grant sanctions for
misuse of discovery solely based on § 2023.010.
Moreover, the Court finds that imposition of sanctions given the
extensive meet and confer efforts is not warranted in this instance.
III. Conclusion
Defendants are ordered to
provide further responses to Requests Nos. 3 and 4. Defendants are NOT required
to provide further responses to Requests No. 1 and 2.
Plaintiff’s
Request for Sanctions is DENIED.
Moving Party is ordered to give notice.