Judge: Mark C. Kim, Case: 21STCV47583, Date: 2023-03-21 Tentative Ruling
Case Number: 21STCV47583 Hearing Date: March 21, 2023 Dept: S27
1. Background
Facts
On December 30, 2021, Plaintiff
Courtney Brooks (“Plaintiff”) filed a Complaint against defendants Long Beach
Memorial Medical Center (“Medical Center”), Mundi Attinasi, M.D. (“Dr.
Attinasi”), Amjuli Kumar, M.D. (“Dr. Kumar”), Glenn Levine, M.D. (“Dr. Levine”),
and Does 1 through 20, alleging a cause of action for wrongful death from
professional negligence. On November 23,
2022, Plaintiff filed the operative Second Amended Complaint (“SAC”).
Plaintiff alleges that her
daughter, Marlee Sage Butler (“Marlee”) was born on April 8, 2020, with
holoprosencephaly. Marlee was admitted
to Medical Center on July 8, 2020. On
July 15, Marlee stopped breathing and became unresponsive and required
intubation. On July 18, 2020, after two
tests for brain death were performed, Marlee was pronounced dead.
The SAC includes causes of action
for wrongful death (professional negligence), fraud (Levine), fraudulent
concealment (Dabagh), Aiding and Abetting Fraud (Javahery), and vicarious
liability (LBMMC).
2. Motion
to Compel Production
a. History
of Parties’ Discovery Dispute
Plaintiff propounded RPDs on
Defendant, LBMMC on 10/14/22. Defendant
served responses on 11/15/22. The
parties met and conferred, and Plaintiff filed this motion on 12/27/22. The parties continued meeting and conferring
after Plaintiff filed the motion, and resolved all issues except for those
related to the “medical audit trail” of Decedent’s medical records, RPD
33.
b. RPD
33
RPD 33 sought production of: “Copies
of any computer generated or other electronically stored data and evidence
which pertain to Marlee Sage Butler and the case at bar – to include all audit
trails which shall include documentation which shows all accesses to, and all
actions in Marlee Sage Butler’s medical chart.”
LBMMC, in its original response to
RPD 33, objected on the grounds that the RPD was vague, ambiguous, and
unintelligible, that the information sought violates trade secret and
proprietary information, that the RPD is overbroad, burdensome and harassing,
and not reasonably calculated to lead to discovery of admissible evidence.
LBMMC, in its supplemental
response, re-stated the above objections, then stated that it also objects on the
grounds that the RPD violates attorney-client privilege and work product, as
well as Evidence Code §1157. It then
stated that, without waiving the objection, it has produced the audit trail up
through 1/04/23.
c. CCP
§2031.310 vs. 2031.320
As an initial note, Plaintiff’s
motion conflates CCP §2031.310 with §2031.320.
CCP §2031.310 permits the Court to order the defendant to serve a
supplemental response to an RPD if the response is insufficient for any
reason. §2031.320 permits the Court to
order the defendant to provide the actual documents at issue, but such motion
is ripe if and only if the defendant has first promised to produce the documents,
and then failed to do so.
In this case, Plaintiff cites
§2031.310, but seeks an order compelling “production” of the audit trail. The Court cannot, at this time, compel
production of the audit trail. The Court
can only determine whether the response is complete and order a supplemental
response if it is not. If and only if
the supplemental response indicates an intention to produce documents, and then
Defendant fails to produce in compliance with that promise, the Court can then
entertain and potentially grant a motion to compel production.
d. Separate
Statement
CRC 3.1345(a)(3) requires a separate
statement with a motion to compel further responses to a request for production
of documents. Plaintiff did not file a
separate statement with her moving papers, which rendered review of the motion
difficult. The Court will rule on the motion
despite the defect.
e. Analysis
As noted above, the inquiry before
the Court is whether Defendant’s response to RPD 33 is sufficient. As an initial note, Defendant did not timely
assert the supplemental objections (attorney-client privilege, work product
protection, and Evidence Code §1157), and did not assert any reason, in opposition
to the motion, that those objections could be asserted by way of a supplemental
response. CCP §2031.300(a) provides for
waiver of any objection not timely asserted.
The Court therefore overrules the objections asserted in the supplemental
response.
With respect to the objections
asserted in the original response, the Court notes that Defendant has the
burden of justifying each objection asserted.
See Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255. Defendant did not, in opposition to the
motion, attempt to justify any objection asserted. These objections are therefore also
overruled.
The motion to compel a further
response is granted. Defendant is
ordered to serve a supplemental response, without objections, within ten days.
f. Production
As noted above, any motion to
compel production is not ripe for determination in light of the status of
Defendant’s responses. That said, the Court
will briefly address the issue in an attempt to assist the parties and avoid the
need for additional law and motion practice.
Defendant contends, in its opposition,
that it provided the entire audit trail up to the date of production,
1/04/23. Plaintiff contends, in reply,
that the audit trail is not complete, as it does not include additions and
deletions to the medical record, and only shows when the records were
viewed.
The parties must further meet and
confer in this regard. In light of the
above order overruling all objections to the request, LBMMC will be obligated
to provide the full and complete audit trail once it supplements its
response. If it has failed to do so, it must
ensure the trail is provided to avoid further law and motion practice on this
issue.
3. Case
Management Conference
The parties are reminded that there
is a CMC on calendar concurrently with the hearing on the above motion. The Court asks the parties to make
arrangements to appear remotely at the hearing on the motion and the CMC.