Judge Melvin D. Sandvig, Case 22CHCV00546 2023-01-06 Tentative Ruling

Judge: Melvin D. Sandvig, Case: 22CHCV00546, Date: 2023-01-06 Tentative Ruling

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Case Number: 22CHCV00546 Hearing Date: January 6, 2023 Dept: F47

Dept. F47

Date: 1/6/23

Case #22CHCV00546

MOTION TO COMPEL FURTHER RESPONSES

(Special Interrogatories, Set 1)

Motion filed on 11/8/22.

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 Special Interrogatories, Set 1, numbers 1-4, 6, 8-15, 18, 20 and 22, within 10 days of this hearing. Additionally, Plaintiff requests sanctions in the amount of $3,860.00 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, in part, and denied in part, as set forth below.

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. Plaintiff alleges that while under the care of Defendant, Plaintiff suffered an avoidable pressure ulcer on his body. Plaintiff alleges his injuries were caused by the withholding of required care due to understaffing, lack of training, failure to allot sufficient economic resources, unfitness of staff in capacity and competency by Defendant.

On 9/12/22, Plaintiff electronically served Defendant Providence Health System – Southern California dba Providence Holy Cross Medical Center (Defendant) with Special Interrogatories, Set 1. (Garcia Decl.). After being granted an extension of time to respond, on 10/26/22, Defendant served unverified responses. (Garcia Decl., Ex.2). Plaintiff found the responses to be deficient. Despite meet and confer efforts, the parties were unable to resolve this discovery dispute. (Garcia Decl., Ex.3). Therefore, on 11/8/22, Plaintiff filed and served the instant motion seeking an order compelling Defendant to provide further verified responses to Plaintiff’s Special Interrogatories, Set 1, numbers 1-4, 6, 8-15, 18, 20 and 22, within 10 days of this hearing. Additionally, Plaintiff requests sanctions in the amount of $3,860.00 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.

On 12/19/22, Defendant served verified supplemental responses to the Special Interrogatories at issue. (See Ertens Decl., Ex.A). However, Plaintiff was only satisfied with the supplemental responses provided as to Special Interrogatories 3 and 22. (See Notice of Partial Withdrawal of Motion Re Special Interrogatories filed 12/22/22; Reply p.1, fn.1).

CCP 2030.300(a) provides:

“On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply:

(1) An answer to a particular interrogatory is evasive or incomplete.

(2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate.

(3) An objection to an interrogatory is without merit or too general.”

The interrogatories at issue concern the identity and location of witnesses. There seems to be no dispute that such information is discoverable. Rather, Plaintiff and Defendant disagree as to how much identifying information must be provided for Defendant’s current employees who are witnesses and the efforts Defendant must make to identify all possible witnesses.

With regard to all of the Special Interrogatories still at issue (numbers s 1, 2, 4, 6, 8-15, 18, and 20), Plaintiff contends that the supplemental responses are still deficient because Defendant has not properly identified any of Defendant’s current employees in response to these questions. Rather, Defendant indicates that current employees can be contacted through counsel. Defendant argues that “[g]iven the privacy rights afforded to non-parties in their personal contact information, and the fact that they are easily reachable through defense counsel, it would be highly improper for plaintiff to directly contact any current employee of defendant… .” (See Opposition, p.7:1-3). However, Defendant fails to address Plaintiff’s proposed Stipulation whereby: (1) defense counsel agrees to accept deposition and trial subpoenas for all witnesses, presently residing in California and listed as current employees of Defendant and (2) defense counsel agrees to advise Plaintiff’s counsel by email of the name and last known residence address and telephone numbers of any such witnesses/current employees within 10 days of the witness’s separation of employment from Defendant. (See Reply Garcia Decl., Ex.1).

If Defendant is willing to execute the Stipulation, the Court finds the supplemental responses sufficient on the identification of witnesses issue. If not, the Court finds that further responses (i.e., the last known address and telephone number of current employees) are warranted so that Plaintiff is able to serve these individuals with subpoenas, if necessary.

Based on the reply, Plaintiff contends that Defendant’s supplemental responses to Special Interrogatories 1, 4, 6, 8, 9 and 10 are still deficient because, although Defendant has identified individuals responsive to the questions, Defendant also states that “To the extent this question calls for the identity of other providers, Responding Party directs Plaintiff to the Providence Holy Cross Medical Center records of Jorge Rico (aka Jimenez), previously produced. (Code Civ. Proc. § 2030.230).” Defendant has further stated that “Should Plaintiff have an interest in the contact information of any provider in particular, responding party will provide that person(s)’ last known contact information, if they are no longer employed by Providence Holy Cross. Current employees can be reached through counsel of record for the hospital.” The Court finds these further responses to be sufficient given that Plaintiff has been provided with Plaintiff’s medical records and it would be substantially the same burden and expense for Defendant as for Plaintiff to comb through these records to identify any other possible individuals responsive to these questions. See CCP 2030.210(a)(2); CCP 2030.230.

Based on the foregoing, execution of the Stipulation or further responses providing contact information for Defendant’s current employees is/are due within 20 days. Otherwise, the request for further responses is denied.

The Court finds that sanctions are not warranted under the circumstances as the main issue regarding the discovery responses (i.e., execution of the Stipulation) could possibly have been resolved through further meet and confer efforts. CCP 2030.300(b)(1), (d). Although defense counsel mistakenly missed the meet and confer conference, he emailed an apology letter the same day offering to set up another conference. (See Mertens Decl., Ex.C, D). Rather, than take him up on the offer to reschedule the meet and confer as indicated was an option in Plaintiff’s counsel’s 11/3/22 letter, the instant motion was filed only three court days later (despite the fact that the deadline for such filing was over a month away, if there was even a deadline, since the responses served on 10/26/22 were not verified). (Mertens Decl., Ex.C). As such, Plaintiff’s request for sanctions is denied.

Dept. F47

Date: 1/6/23

Case #22CHCV00546

MOTION TO COMPEL FURTHER RESPONSES

(Form Interrogatories, 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 Form Interrogatories, Set 1, numbers 12.1, 12.3, 12.4, 12.6, 16.9. 16.10 and 17.1, within 10 days of this hearing. Additionally, Plaintiff requests sanctions in the amount of $3,860.00 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 set forth below. Further responses are due and sanctions are payable within 20 days.

On 9/12/22, Plaintiff electronically served Defendant Providence Health System – Southern California dba Providence Holy Cross Medical Center (Defendant) with Special Interrogatories, Set 1. (Garcia Decl.). After being granted an extension of time to respond, on 10/26/22, Defendant served unverified responses. (Garcia Decl., Ex.2). Plaintiff found the responses to be deficient. Despite meet and confer efforts, the parties were unable to resolve this discovery dispute. (Garcia Decl., Ex.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 Form Interrogatories, Set 1, numbers 12.1, 12.3, 12.4, 12.6, 16.9. 16.10 and 17.1, within 10 days of this hearing. Additionally, Plaintiff requests sanctions in the amount of $3,860.00 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.

On 12/9/22, the same day the opposition was filed and served, Defendant served verified supplemental responses to the Form Interrogatories at issue. (See Ertens Decl., Ex.A). However, Plaintiff was only satisfied with the supplemental responses provided as to Form Interrogatories 16.9 and 16.10. As such, Plaintiff has withdrawn the motion as to Form Interrogatories 16.9 and 16.10. (See Reply p.1, fn.1).

CCP 2030.300(a) provides:

“On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply:

(1) An answer to a particular interrogatory is evasive or incomplete.

(2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate.

(3) An objection to an interrogatory is without merit or too general.”

To the extent the Form Interrogatories that remain at issue seek the identification (i.e., residence address, phone number) of current employees of Defendant, as noted in the ruling on Plaintiff’s Motion to Compel Further Responses to Special Interrogatories, if Defendant is willing to execute the Stipulation proposed by Plaintiff, whereby: (1) defense counsel agrees to accept deposition and trial subpoenas for all witnesses, presently residing in California and listed as current employees of Defendant and (2) defense counsel agrees to advise Plaintiff’s counsel by email of the name and last known residence address and telephone numbers of any such witnesses/current employees within 10 days of the witness’s separation of employment from Defendant, the Court finds the supplemental responses sufficient on the identification of witnesses issue. If not, the Court finds that further responses (i.e., the last known address and telephone number of current employees) are warranted.

Defendant has failed to properly and/or sufficiently respond to each of the subsections in the subject Form Interrogatories. Defendant has not separated its responses by subsection; therefore, it is not always clear what information is intended to respond to which subsection. Defendant has also failed to adequately justify its objections and/or establish that the claimed privileges apply to the information requested as is its burden. See Williams (2017) 3 C5th 531, 549-550; HLC Properties Ltd. (2005) 35 C4th 54, 59; Duronslet (2012) 203 CA4th 717, 730; West Pico Furniture Co. (1961) 56 C2d 407, 422; Evidence Code 917. With regard to Form Interrogatory 12.6, to the extent Defendant claims the Unusual Occurrence Report referenced is privileged, as noted in the ruling on Plaintiff’s motion to compel further responses to Requests for Production of Documents, number 4, 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. Therefore, Defendant has failed to establish that the identities of the persons who created the unprivileged portions of the report cannot be discovered. Additionally, with regard to Form Interrogatories 12.4 and 17.1, Defendant has failed to properly and/or sufficiently identify responsive documents in relation to these questions.

The Court finds that Plaintiff is entitled to an award of sanctions in the amount of $2,360.00 against Defendant and its attorneys of record, Carrol, Kelly, Trotter & Franzen, jointly and severally and payable to Garcia & Artigliere. See CCP 2030.3(d). The sanctions award is based on 2 hours of paralegal time at the reasonable rate of $150/hour, plus 3 hours of attorney time at the reasonable rate of $500/hour, plus $500 for court reporter fees, plus $60 filing fee. Plaintiff is already recovering court reporter costs for the same date for the motion regarding Special Interrogatories. 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 interrogatories at issue.