Judge: Melvin D. Sandvig, Case: 22CHCV00546, Date: 2023-01-05 Tentative Ruling
Case Number: 22CHCV00546 Hearing Date: January 5, 2023 Dept: F47
Dept. F47
Date: 1/5/23
Case #22CHCV00546
MOTION TO
COMPEL FURTHER RESPONSES
(Requests for
Identification and Production of Documents, Set 1)
Motion filed on 11/4/22.
MOVING PARTY: Plaintiff Pedro
Rico, by and through his Guardian ad Litem, Jesus Rico
RESPONDING
PARTY: Defendant Providence Health System – Southern
California dba Providence Holy Cross Medical Center
NOTICE: ok
RELIEF REQUESTED: An order
compelling Defendant Providence Health System – Southern California dba
Providence Holy Cross Medical Center (Defendant) to provide further verified
responses to Plaintiff’s Requests for
Identification and Production of Documents, Set 1, numbers 1-30 and 32-36*,
within 10 days of this hearing. Additionally, Plaintiff requests sanctions in
the amount of $4,560.00 against Defendant and its attorneys of record, Carrol, Kelly,
Trotter & Franzen, jointly and severally and payable to Garcia &
Artigliere within 10 days
of the hearing.
RULING: The motion is granted as to Requests 1, 4,
19, 23, 25, 28, 34, 35 and 36. Further
responses and/or production are/is due within 20 days. The motion is denied as to Requests 5 and
17. Sanctions are imposed against
Defendant and its attorneys of records as set forth below. Sanctions are payable within 20 days.
This is an elder abuse action brought by Plaintiff Pedro
Rico, by and through his Guardian ad Litem, Jesus Rico (Plaintiff) against Defendants
Providence Health System – Southern California dba
Providence Holy Cross Medical Center and Providence Health and Services.
On 9/12/22, Plaintiff electronically served Defendant Providence
Health System – Southern California dba Providence Holy Cross Medical Center
(Defendant) with Requests for Identification and Production of Documents, Set
1. (Garcia Decl.). After being granted an extension of time to
respond, on 10/26/22, Defendant served unverified responses. (Garcia Decl., Ex.1). Plaintiff found the responses to be
deficient. Despite meet and confer
efforts, the parties were unable to resolve this discovery dispute. (Garcia Decl., Ex.2-3). Therefore, on 11/4/22, Plaintiff filed and
served the instant motion seeking an order compelling Defendant to provide
further verified responses to
Plaintiff’s Requests for Identification and Production of Documents, Set
1, numbers 1-30 and 32-36*, within 10 days of this hearing.
Additionally, Plaintiff requests sanctions in the amount of $4,560.00
against Defendant and its attorneys of record, Carrol, Kelly, Trotter &
Franzen, jointly and severally and payable to Garcia & Artigliere within 10
days of the hearing. Defendant has
opposed the motion.
*After the motion was filed, Plaintiff filed two notices
of partial withdrawal of the motion.
Pursuant to the Second Notice of Partial Withdrawal, the motion remains
at issue only as to Request numbers 1, 4, 5, 17, 19,
23, 25, 28, 34, 35, 36. (See
Second Notice of Partial Withdrawal filed on 12/22/22). The opposition contends that based upon the
further responses and production it has provided, the motion only remains at
issue as to Requests 1, 4, 19, 25 and 28.
(See Opposition, p.2:21-23).
However, the reply still contends that Requests 1, 4, 5, 17, 19, 23, 25,
28, 34, 35, 36 remain at issue. (See
Reply, Memorandum of Points & Authorities, p.1:4-5).
Pursuant to motion, the Court may compel a party to
provide a further response and/or corresponding production of documents when it
finds the response(s) to a document request be incomplete or evasive, or when
objections are without merit. See
CCP 2031.310(a); CCP 2031.320(a).
Additionally, the Court may impose sanctions against a party who fails
to comply with an authorized method of discovery. See CCP 2023.010(e), (f); CCP
2023.020; CCP 2031.310(h).
With regard to the Requests Plaintiff still contends are at
issue, the Court rules as follows:
REQUEST 1: Grant.
Request 1 seeks “all insurance agreements and policies
which afford coverage to the responding party or any of its agents, employees,
and/or officers for any conduct alleged against them in any allegation of the
PLAINTIFF as set forth in the operative Complaint.”
Defendant concedes the discoverability of the existence
and contents of its liability insurance coverage under CCP 2017.210. (See Defendant’s Separate Statement,
p.3:3-4). The fact that the statute
provides that “[t]his discovery may include the identity of the carrier and the
nature and limits of the coverage” does not mean that such discovery is limited
to such information. See CCP
2017.210. It is not for Defendant to
decide that based on the information it has chosen to provide, “there is
nothing more that Plaintiff needs” with regard to this request. (See Defendant’s Separate Statement,
p.3:15-16). Additionally, Defendant has
failed to provide any argument or authority to support its request that the
premium information be redacted and/or that production of the policy be subject
to a protective order. (Id. at
p.3:20-22).
REQUEST 4: Grant.
Request 4 seeks “all DOCUMENTS constituting any HOSPITAL ‘Incident
Report’ and/or ‘Unusual Occurrence Report’ and/or any other DOCUMENT utilized
by the HOSPITAL to report or memorialize any occurrence relating to a patient
which references and/or refers to the PLAINTIFF.”
Defendant has produced a privilege log which identifies three
documents (Unusual Occurrence Report; Providence St. Joseph Health Valley
Service Area Community Ministry Board Meeting Minutes; Epidemiology and
Infection Control Committee Minutes) in response to Requests 4 and 25. (Ertens Decl., Ex.B). Defendant
claims these documents are privileged pursuant to Evidence Code 1156, 1157,
et seq. and other peer review and quality assurance purposes; attorney-client
and attorney work-product privileges and/or Business & Professions Code
809.05, et seq. (Ertens
Decl., Ex.B).
Citing Catalina Island Yacht Club, Plaintiff complains that the privilege log provided by
Defendant with regard to this request is deficient in that it does not identify
the individuals who authored, sent or received the allegedly privileged
document. Catalina
Island Yacht Club (2015) 242 CA4th 1116, 1130; (Ertens Decl., Ex.B). While Catalina Island Yacht Club held that
“in general…a privilege log typically should provide the identity and capacity
of all individuals who authored, sent or received each allegedly privileged
document…,” it also held that “[t]he precise information required for an
adequate privilege log will vary from case to case based on the privileges
asserted and the underlying circumstances.”
See Catalina Island Yacht Club, supra. It has been held that the identity of the
evaluating physicians at peer review committee meetings is protected under
Evidence Code 1157. See Cedars-Sinai
Medical Center (1993) 12 CA4th 579, 588.
Unusual occurrence reports are required under 22
California Code of Regulations Section 70737(a) to be submitted to the State of
California. Additionally, Defendant’s
person most knowledgeable testified that not all of the information in the
“Unusual Occurrence Report” is for quality assurance purposes. (See Reply, Ex.3, p.21:24-p.22:6). As such, Defendant has failed to establish
that any of the documents identified in the privilege log are entirely
protected under Evidence Code 1156, Evidence Code 1157 and/or Business and
Professions Code 809.05. Further,
Defendant has failed to adequately establish how any of the documents
identified in the privilege log fall under the attorney-client and/or attorney
work-product privileges.
REQUEST 5: Deny.
While Plaintiff has indicated in the notice of motion and
notices of partial withdrawal that Request 5 is at issue and argues in the
reply that Defendant failed to supplement its response to this request, Request
5 was not included in Plaintiff’s Separate Statement filed in support of the
motion. (See Plaintiff’s Separate
Statement, p.13:4-p.14:10 wherein Plaintiff addresses Request 4 and then jumps
to Request 6). As such, Plaintiff failed
to put Request 5 at issue in this motion.
REQUEST 17: Deny.
In Defendant’s supplemental response to this request,
Defendant indicates that, subject to the objections in the original response,
it provided all documents in its possession, custody and control that are
responsive to the request. In the reply,
Plaintiff does not address the supplement response. Rather, Plaintiff only complains that the
documents produced were not responsive to the request. (See Reply, p.1:23-24). However, Plaintiff fails to explain how or why
the documents produced are not responsive.
(See Reply, generally).
REQUEST 19: Grant.
Request 19 seeks “all DOCUMENTS constituting all “Nursing
Service Policies and Procedures” in effect on any wing, unit, or station of the
HOSPITAL where the PLAINTIFF was a patient consistent with the provisions of
Title 22 California Code of Regulations §70213 in effect during the time period
during which the PLAINTIFF was a patient in the HOSPITAL commencing in December
of 2021.”
Subject to objections, Defendant claims that Plaintiff
has selected an unreasonable number (283) of policies to be produced from a
Table of Contents of Defendant’s nursing policies/procedures provided by Defendant. Plaintiff contends that it has actually only
requested the production of 174 policies.
Regardless, Defendant has failed to establish that the requested
documents are not themselves admissible or likely to lead to the discovery of
admissible evidence. See CCP
2017.010. Similarly, Defendant has
failed to establish that production of the requested documents would be so
overly burdensome so as to outweigh Plaintiff’s need for the information.
REQUEST 23: Grant.
This request seeks “all DOCUMENTS constituting the ‘written
personnel policies’ available to all personnel working at the HOSPITAL on any
wing, unit, or station where the PLAINTIFF was a patient consistent with
provisions of 22 California Code of Regulations § 70719(a) in effect during the
time period during which the PLAINTIFF was a patient in the HOSPITAL commencing
in December of 2021.”
In its supplemental response, Defendants indicates that
subject to the objections stated in the original response, it has provided a
list of its HR policies, but none has been requested. The supplemental response goes on to state
“[i]f this is not accurate, please contact defense counsel.” In the reply, with regard to this request,
Plaintiff merely states that “to date the Defendant has not produced any of the
promised personnel policies and procedures.”
(See Reply, p.2:2-3; Reply, generally).
Defendant fails to provide any authority for the
proposition that Plaintiff must again request the production of documents from
a list it has provided, which is not actually a part of the verified
supplemental response, in response to the request. As such, Defendant is ordered to produce the
responsive documents identified in the list.
REQUEST 25: Grant.
This request seeks “all DOCUMENTS to be maintained
pursuant to the provisions 22 California Code of Regulations § 70733(a)(4)
which constitute minutes any “meetings of the governing body and the medical
staff” of the HOSPITAL occurring during the time period of June 1, 2021 through
Plaintiff’s last date of admission in February 2022. (The names of all patients
other than the PLAINTIFF should be redacted from the production.)”
As noted in relation to Request 4, Defendant has failed
to establish that the documents identified in the privilege log are entirely
privileged. (See “REQUEST 4”
above). As such, the responsive documents
identified in the privilege log should be produced with redactions of any peer
review/ Evidence Code 1157 information from the production.
REQUEST 28: Grant.
Request 28 seeks “all DOCUMENTS reflecting, evidencing
and/or consisting of any questionnaires, inquiries and/or surveys of employees
working at the HOSPITAL on any wing, station, or unit of the HOSPITAL where the
PLAINTIFF was a patient relating to and/or memorializing satisfaction with any
aspect of employment in the HOSPITAL during the time frame of June 1, 2021
through Plaintiff’s last date of admission in February 2022. (The names of all
patients other than the PLAINTIFF should be redacted from the production.)”
In response to this request, Defendant made several
objections, but stated that without waiving same, it was attempting to obtain
all documents responsive to the request for the time period of Plaintiff’s
hospitalization, which would be produced when located. Defendant’s supplemental response to this
request indicates that Defendant stands by its original objections to the
request and makes further objections based on Evidence Code 1157 and other
quality assurance and peer review privileges.
Defendant provides no authority which allows it to assert
new/additional privileges in a supplemental response. Any new objections were waived because they
were not timely made. See Mannino
(1983) 142 CA3d 776, 778; Sinaiko Healthcare Consulting (2007) 148 CA4th
390. Additionally, the privilege log
provided by Defendant does not address this request. (See Ertens Decl., Ex.B). Defendant has failed to adequately justify
any of the other objections asserted in response to this request and/or explain
why the redaction required in the request is insufficient to overcome any
privacy concerns.
REQUESTS 34, 35 & 36: Grant.
Defendant’s supplemental responses to these requests
indicate that, subject to the objections made in its original responses, it has
produced all documents responsive to these requests in its possession, custody
and control. However, in the reply,
Plaintiff states that “none of the competency validations or fitness documents
that were identified in the responses were produced despite a statement of
compliance.” (See Reply,
p.2:9-10). To the extent Defendant still
has not produced the responsive documents, it is ordered to do so.
SANCTIONS: The Court finds that Plaintiff is
entitled to an award of sanctions in the amount of $3,060.00 against Defendant
and its attorneys of record, Carrol, Kelly, Trotter & Franzen, jointly and
severally and payable to Garcia & Artigliere. See CCP 2031.310(h). The sanctions award is based on 5 hours of
attorney time at a reasonable hourly rate of $500/hour, plus $500 for court
reporter fees, plus $60 filing fee.
While Plaintiff seems to have jumped the gun in filing the instant
motion the day after defense counsel mistakenly missed the meet and confer
conference, Defendant has still failed to provide sufficient responses to
certain of the requests and/or produce documents as promised.