Judge: Mark V. Mooney, Case: 20STCV35713, Date: 2022-10-17 Tentative Ruling

Case Number: 20STCV35713    Hearing Date: October 17, 2022    Dept: 68

TENTATIVE RULING:

RE THE MOTION OF DEFENDANT ROGER FONTES, M.D.’S MOTION TO COMPEL FURTHER RESPONSES FROM PLAINTIFF MICHAEL SILAS TO DEMAND FOR DOCUMENTS AND THINGS, SET TWO, NUMBERS 54-55, 59-60, AND 62-71, THE COURT RULES AS FOLLOWS: GRANTED. PLAINTIFF IS TO PRODUCE FURTHER RESPONSES WITHIN 20 DAYS.

This is medical malpractice case arising out of alleged substandard medical treatment received by Plaintiff Michael Silas (“Plaintiff”) from Defendant Roger Fontes, M.D. (“Defendant”) after Plaintiff suffered a series of fractures when he slipped and fell at the Mirage Resort and Casino (“Mirage”) in Las Vegas, Nevada on February 2, 2019. Plaintiff alleges that Fontes negligently inserted a prosthetic device called Acumed that was improperly sized, defective and otherwise not suitable for the injuries Plaintiff suffered and Defendant did not warn Plaintiff that the device was likely and expected to not properly fit.

Importantly, Plaintiff also sued for the injuries from the slip and fall and obtained a settlement.  Defendant contends that the recovery from that slip and fall gives rise to a set-off for damages.

Defendant now moves to compel further responses from Plaintiff to Demand for Documents And Things, Set Two (“RPD”), Nos. 54-55, 59-60, and 62-71. Defendant does not seek monetary sanctions.

The subject demands are as follows:

54. All documents supporting the earnings [Plaintiff] received as a Postmates driver from

June 2018 to present time, including but not limited to, contracts, agreements, 1099s, W2s, checks, direct deposits, etc.

55. All documents supporting the earnings [Plaintiff] received as an actor from 2016 to present time, including but not limited to, contracts, agreements, agency agreements, 1099s, W2s, checks, direct deposits, etc.

59. All documents regarding the settlement of [Plaintiff’s] slip and fall lawsuit against Mirage Resort.

60. All documents sent to Defendant Roger A. Fontes, Jr. M.D. by The 702 Firm representing [Plaintiff] in [Plaintiff’s] slip and fall lawsuit.

61. Please produce any and all DOCUMENTS that support [Plaintiff’s] response to Special Interrogatory Number 40 (served concurrently herewith).

63. Please produce any and all DOCUMENTS that support [Plaintiff’s] response to Special Interrogatory Number 41 (served concurrently herewith).

63. Please produce any and all DOCUMENTS that support [Plaintiff’s] response to Special Interrogatory Number 42 (served concurrently herewith).

64. Please produce any and all DOCUMENTS that support [Plaintiff’s] response to Special Interrogatory Number 43 (served concurrently herewith).

65. Please produce any and all DOCUMENTS that support [Plaintiff’s] response to Special Interrogatory Number 44 (served concurrently herewith).

66. Please produce any and all DOCUMENTS that support [Plaintiff’s] response to Special Interrogatory Number 45 (served concurrently herewith), including the settlement breakdown, which will be responsive to Special Interrogatories Numbers 46, 46, 47, 48, 49, 50, 51, 52, and 53.

67. Please produce any and all DOCUMENTS that support [Plaintiff’s] response to Special Interrogatory Numbers 54, 55, and 56 (served concurrently herewith).

68. Please produce any and all DOCUMENTS that support [Plaintiff’s] response to Special Interrogatory Numbers 57, 58, and 59 (served concurrently herewith).

69. Please produce any and all DOCUMENTS that support [Plaintiff’s] response to Special Interrogatory Numbers 60, 61, and 62 (served concurrently herewith).

70. Please produce any and all DOCUMENTS that support [Plaintiff’s] response to Special Interrogatory Number 65 (served concurrently herewith).

71. Please produce any and all DOCUMENTS that support [Plaintiff’s] response to Special Interrogatory Number 69 (served concurrently herewith).

Legal Standard

Under Code of Civil Procedure section 2031.310, subdivision (a), a court may order a party to serve a further response to a demand for inspection when the court finds that: “(1) A statement of compliance with the demand is incomplete[;] (2) A representation of inability to comply is inadequate, incomplete, or evasive[; or] (3) An objection in the response is without merit or too general.”

The burden is on the moving party to “set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).)

This burden “is met simply by a fact-specific showing of relevance.” (TBG Ins. Servs. Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 448.)

Meet and Confer

As a threshold matter, Plaintiff argues that the Court should deny the motion because of insufficient meet and confer efforts. The Court disagrees. Plaintiff does not provide any reasoned argument in support of this claim, instead relying on a conclusory argument. (Opposition 2:18-19 [“This motion should be denied due to the failure of Defendant’s counsel to meet and confer in good faith . . . .”].) In any event, Plaintiff is wrong on the merits. Although it is possible additional efforts could have avoided this motion, there is sufficient evidence in the record to show that there was a good faith effort to resolve this issue informally. This discovery issue came before the Court in multiple iterations and Defendant critically served meet and confer letters. (Batshoun Decl. ¶¶ 13-19, Ex. N.) Defendant could have engaged in more meet and confer efforts following Plaintiff’s email (id. Ex. O), but doing so is unnecessary considering there is some earlier reasoned discussion of the purported discovery deficiencies.

Waiver of Objections

The parties dispute whether Plaintiff waived the ability to assert objections.

It is undisputed that Plaintiff did not respond to the original (as modified by the parties’ agreement) December 30, 2021 deadline for the initial responses to the RPD. (Batshoun Decl. ¶¶ 3-4, Ex. B-C.) Plaintiff served his initial responses on February 22, 2022. (Id. ¶ 7, Ex. E.) Therefore, the failure to serve timely initial responses is a waiver of the objections. (Code Civ. Proc., §, 2031.300, subd. (a).)

Plaintiff’s arguments in Opposition are not persuasive. It is irrelevant that the letter granting Plaintiff an extension to serve further supplement responses does not indicate that Plaintiff agreed to waiver of the objections. (Batshoun Decl. Ex. I.) Plaintiff’s conduct, i.e., service of untimely initial responses, already waived any objections. (See also id. Ex. G [contending that Plaintiff had waived objections].)

Accordingly, all the objections are waived.

Whether Responses are Code-Compliant

Plaintiff argues that his responses are Code-compliant.

The Court disagrees.

There are two categories of Plaintiff’s responses:

(1) Response to RPD Nos. 54-55, 62-71: Plaintiff has produced all documents and still is making efforts to obtain documents and once received Plaintiff will produce the documents subject to attorney-client privileges; and

(2) Response to RPD Nos. 59-60: Objection based on attorney-client privilege and responsive documents are not possessed by Plaintiff. No documents will be produced.

As a preliminary matter, because the objections are waived, to the extent that Plaintiff seeks to maintain any objections, those responses are not Code-compliant.

Regarding the first category, Plaintiff’s responses are not Code-compliant. Plaintiff fails to show any evidence that he made a “a “diligent search and a reasonable inquiry” to obtain the documents. (Code Civ. Proc., § 2031.230 [“A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.”]; see also Reply 7:1-6 [identifying Plaintiff’s lack of diligent follow-up].) Plaintiff failed to state a valid reason for his inability to comply with numerous demands for Plaintiff’s own records. Additionally, Plaintiff’s responses indicate some familiarity with the third parties who possess the records, but the responses do not identify persons or organizations which have, or are believed to have, possession, custody or control of these items.

Regarding the second category, it is unclear why Plaintiff cannot obtain the responsive documents from the law firm that represented him in his lawsuit against Mirage. Plaintiff must obtain from his Nevada attorneys the documentation on his settlement of that lawsuit.  The Nevada statute regarding confidentiality of settlements (Nevada Revised Statues 48.105) makes this information inadmissible to prove liability. The statute does not otherwise preclude the discovery of the evidence or its admissibility for the purpose of an offset claim.

The Court GRANTS Defendant’s motion.

Plaintiff is to produce further responses within 20 days.

Plaintiff is ordered to obtain copies of his bank account records from his bank and to make demand upon his Nevada counsel to provide the requested documents.

Monetary Sanctions

Defendant does not request monetary sanctions. Therefore, the Court does not award any.