Judge Melvin D. Sandvig, Case 22STCV18944 2023-04-14 Tentative Ruling

Judge: Melvin D. Sandvig, Case: 22STCV18944, Date: 2023-04-14 Tentative Ruling

Counsel wishing to submit on a tentative ruling may inform the clerk or courtroom assisant in North Valley Department F47, 9425 Penfield Ave., Chatsworth, CA 91311, at (818) 407-2247. Please be aware that unless all parties submit, the matter will still be called for hearing and may be argued by any appearing/non-submitting parties. If the matter is submitted on the court's tentative ruling by all parties, counsel for moving party shall give notice of ruling. This may be done by incorporating verbatim the court's tentative ruling. The tentative ruling may be extracted verbatim by copying and specially pasting, as unformatted text, from the Los Angeles Superior Court’s website, http://www.lasuperiorcourt.org. All hearings on law and motion and other calendar matters are generally NOT transcribed by a court reporter unless one is provided by the party(ies).

Case Number: 22STCV18944 Hearing Date: April 14, 2023 Dept: F47

Dept. F47

Date: 4/14/23 (originally calendared for 4/10/23)

Case #22STCV18944

MOTION TO COMPEL FURTHER RESPONSES

(Form Interrogatories, Set 1)

Motion filed on 1/13/23.

MOVING PARTY: Plaintiff Trinity Kennard

RESPONDING PARTY: Defendant Eliza Debow, M.D.

NOTICE: ok

RELIEF REQUESTED: An order compelling Defendant Eliza Debow, M.D. (Debow) to further respond to Plaintiff’s Form Interrogatories, Set 1, No. 17.1 as it relates to Request for Admission, Set 1, Nos. 1, 6 and 7. Additionally, Plaintiff requests sanctions against Debow and her attorneys Bonne, Bridges, Mueller, O’Keefe & Nichols in the amount of $1,560.

RULING: The motion is granted as set forth below. Further responses are due and sanctions are payable within 30 days.

This action for medical battery and negligence arises out of the alleged partial sterilization of Plaintiff Trinity Kennard (Plaintiff) during a C-section performed by Defendant Eliza Debow, M.D. (Debow) on 9/8/21 at Olive View – UCLA Medical Center which is alleged to be owned and operated by Defendant County of Los Angeles (County). Plaintiff alleges that County and its employees, including Debow, the attending doctor, committed a medical battery when without consent, authorization, or permission, they surgically removed Plaintiff’s right fallopian tube.

On 9/16/22, Plaintiff served Debow with Requests for Admissions (RFA), Set 1, and corresponding Form Interrogatories, Set 1. (Winokur Decl., Ex.1, 2). On 11/17/22, Defendant served responses and later supplemental responses. (Id., Ex.3, 4, 7, 8). With regard to RFAs 1 and 7, Debow ultimately asserted objections and then denied the requests. Debow asserted only objections in response to RFA 6. In response to Form Interrogatory 17.1 with regard to RFAs 1 and 7, Debow asserted objections and stated subject to those objections, “Deny” and discovery is ongoing. In response to Form Interrogatory 17.1 with regard to RFA 6, Debow asserted only objections. Plaintiff’s meet and confer efforts failed to resolve the issues presented by this motion. (Id., Ex.5, 6, 9, 10). Therefore, pursuant to the extension granted by Debow, on 1/13/23, Plaintiff filed and served the instant motion seeking an order compelling Debow to further respond to Plaintiff’s Form Interrogatories, Set 1, No. 17.1 as it relates to Request for Admission, Set 1, Nos. 1, 6 and 7. Additionally, Plaintiff requests sanctions against Debow and her attorneys Bonne, Bridges, Mueller, O’Keefe & Nichols in the amount of $1,560. (See Winokur Decl., Ex.10). Debow has opposed the motion and requests $1,500.00 in sanctions against Plaintiff and her counsel of record. Plaintiff has filed a reply to the opposition.

If a propounding party finds a response to an interrogatory to be evasive or incomplete or an objection to be without merit or too general, the party may move to compel a further response. See CCP 2030.300(a).

The underlying RFAs ask Debow to:

RFA 1: “Admit that YOU committed medical battery on THIS PATIENT.”

RFA 6: “Admit that it was not medically necessary to remove THIS PATIENT’S right fallopian tube on September 8, 2021.”

RFA 7: “Admit that there was not a medical emergency necessitating the removal of THIS PATIENT’S right fallopian tube on September 8, 2021.”

Form Interrogatory 17.1 states:

“Is your response to each request for admission served with these interrogatories an unqualified admission? If not, for each response that is not an unqualified admission:

(a) state the number of the request;

(b) state all facts upon which you base your response;

(d) identify all DOCUMENTS and other tangible things that support your response and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing.”

As noted above, in response to RFAs 1 and 7, Debow asserted objections and then denied the requests. In response to corresponding Form Interrogatory 17.1 with regard to those requests, Debow objected on the ground that the interrogatory seeks premature disclosure of expert opinion, the interrogatory was generally premature and may seek information protected under Evidence Code 1157. Debow then stated that without waiving the objections “Deny.” Debow responded to RFA 6 solely with objections and only asserted objections in response to corresponding Form Interrogatory 17.1 with regard to that request.

Although Debow’s responses included additional bases for her objections, the opposition to the instant motion is based on the claim that the underlying RFAs and accompanying Form Interrogatory 17.1 in relation thereto prematurely seek disclosure of expert opinion. (See Opposition, p.3:14-p.6:26). As such, it appears that Debow has abandoned the other bases for her objections. Even if not abandoned by Debow, the other objections are without merit and unsupported.

The Court also finds the objection related to expert opinion to be without merit. A request for admission may relate to an “opinion relating to fact” an “application of law to fact.” See CCP 2033.010. Further, “[i]nformation known to a party’s attorney or expert witnesses is deemed ‘obtainable’ by the party. Therefore, responses to RFAs must be made in light of such information.” See The Rutter Group California Practice Guide: Civil Procedure Before Trial, Section 8:1343 (citing Chodos (1963) 215 CA2d 318, 323-324 and Bloxham (2014) 228 CA4th 729, 752); See also Grace (2015) 240 CA4th 523, 533 (defendants should have admitted facts based on their expert’s opinion).

Debow ultimately denied RFAs 1 and 7. However, she also included prefatory objections which are without merit. Debow then asserted similar improper objections in response to Form Interrogatory 17.1 and stated she denied the interrogatory which is non-responsive to the questions asked in Form Interrogatory 17.1. If Debow is denying RFAs 1 and 7, she must provide the information requested in Form Interrogatory 17.1 in relation to those requests. It would make no sense that parties are required to respond to RFAs, even if they must consult their expert to do so but could then refuse to provide information to support a denial in response to Form Interrogatory 17.1 on the grounds that it calls for expert opinion.

As noted in the ruling on Plaintiff’s motion to compel Debow to provide a further response to Requests For Admissions, Set 1, No.6, a further response is warranted and a further response to Form Interrogatory 17.1 in relation to that request is also warranted, if the response is not an unqualified admission.

Debow’s reliance on authority (County of Los Angeles (2011) 224 CA3d 1446, 1456) concerning depositions is misplaced as requests for admissions serve a different purpose. Depositions are for fact finding whereas requests for admissions are intended to put triable issues at rest so that they need not be proven at trial. See Cembrook (1961) 56 C2d 423, 429. If a party does not respond to an RFA with an unqualified admission, that party is required to provide information to support such a response in response to Form Interrogatory 17.1.

Based on the foregoing, Debow’s objections to Form Interrogatory 17.1 as it relates to RFA 1, 6 and 7 are overruled. Debow is ordered to provide a further response to Form Interrogatory 17.1 as it relates to RFAs 1 and 7. If Debow’s further response to RFA 6 is not an unqualified admission, Debow is also ordered to provide a further response to Form Interrogatory 17.1 in relation to RFA 6.

The Court finds that Plaintiff is entitled to an award of sanctions due to Debow’s failure to provide a proper response to the discovery request at issue. CCP 2030.300(d). Therefore, sanctions are imposed on Debow and her attorneys Bonne, Bridges, Mueller, O’Keefe & Nichols in the amount of $1,560.00 calculated at 5 hours to prepare the motion, review the opposition, prepare the reply and appear at the hearing multiplied by $300/hour + $60 filing fee.

Dept. F47

Date: 4/14/23 (originally calendared for 4/11/23)

Case #22STCV18944

MOTION TO COMPEL FURTHER RESPONSES

(Requests for Admissions, Set 1)

Motion filed on 1/13/23.

MOVING PARTY: Plaintiff Trinity Kennard

RESPONDING PARTY: Defendant Eliza Debow, M.D.

NOTICE: ok

RELIEF REQUESTED: An order compelling Defendant Eliza Debow, M.D. (Debow) to further respond to Plaintiff’s Request for Admission, Set 1, Request no. 6 and accompanying Form Interrogatory 17.1, if applicable. Additionally, Plaintiff requests sanctions against Debow and her attorneys Bonne, Bridges, Mueller, O’Keefe & Nichols in the amount of $1,260.

RULING: The motion is granted as set forth below. Further response is due and sanctions are payable within 30 days.

On 9/16/22, Plaintiff served Debow with Requests for Admissions, Set 1. (Winokur Decl., Ex.1). On 11/17/22, Defendant served responses. (Id., Ex.2). As to Request 6, Plaintiff responded solely with objections. Id. Plaintiff’s meet and confer efforts failed to resolve the issues presented by this motion. (Id., Ex.3-6). Therefore, pursuant to the extension granted by Debow, on 1/13/23, Plaintiff filed and served the instant motion seeking an order compelling Debow to further respond to Plaintiff’s Request for Admission, Set 1, Request No. 6 and accompanying Form Interrogatory 17.1, if applicable. Additionally, Plaintiff requests sanctions against Debow and her attorneys Bonne, Bridges, Mueller, O’Keefe & Nichols in the amount of $1,260. (See Winokur Decl., Ex.4). Debow has opposed the motion and requests $250.00 in sanctions against Plaintiff and her counsel of record. Plaintiff has filed a reply to the opposition.

If a propounding party finds an objection to a particular request for admission to be without merit or too general, the party may move to compel a further response. See CCP 2033.290(a)(2).

Request for Admission, No.6 (RFA 6) asks Debow to:

Admit that it was not medically necessary to remove THIS PATIENT’S right fallopian tube on September 8, 2021.

(Winkour Decl., Ex.1).

Debow responded with the following:

Objection. Vague and ambiguous. Calls for speculation. Calls for expert opinion. Calls for legal conclusion. Not reasonably calculated to lead to the discovery of admissible evidence. As phrased, this Interrogatory seeks information protected by the attorney-client privilege and/or the attorney work-product doctrine. Therefore, it exceeds the permissible scope of discovery and is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. As phrased, this request may seek information protected under Evidence Code § 1157.

Subject to and without waiving said objections or divulging any privileged or confidential communications or information, Responding Party responds as follows: This request cannot be admitted or denied based on the objections. Discovery is ongoing.

(Winkour Decl., Ex.2).

Although Debow’s response set forth various bases for her objection to RFA 6, the opposition to the instant motion is based on the claim that the request improperly seeks expert opinion. (See Opposition, p.3:11-p.5:26). As such, it appears that Debow has abandoned the other bases for her objection to RFA 6. Even if not abandoned by Debow, the other objections are without merit and unsupported.

Based on the foregoing, Debow’s objections to Request for Admission No.6 are overruled and Debow is ordered to provide a further response to the request. Additionally, Debow is ordered to provide a further response to Form Interrogatory 17.1 in relation to this request, if applicable.

The Court finds that Plaintiff is entitled to an award of sanctions due to Debow’s failure to provide a proper response to the discovery request at issue. CCP 2033.290(d). However, the Court finds that the amount of sanctions requested is excessive due to the fact that the issues presented in this motion are substantially similar to those in the motion regarding Form Interrogatories and the fact that the hearing date for all motions has been consolidated. Therefore, sanctions are imposed on Debow and her attorneys Bonne, Bridges, Mueller, O’Keefe & Nichols in the amount of $660.00 calculated at 2 hours to prepare the motion, review the opposition, prepare the reply and appear at the hearing multiplied by $300/hour + $60 filing fee.

Dept. F47

Date: 4/14/23 (originally calendared for 4/12/23)

Case #22STCV18944

MOTION TO COMPEL FURTHER RESPONSES

(Special Interrogatories, Set 1)

Motion filed on 1/13/23.

MOVING PARTY: Plaintiff Trinity Kennard

RESPONDING PARTY: Defendant Eliza Debow, M.D.

NOTICE: ok

RELIEF REQUESTED: An order compelling Defendant Eliza Debow, M.D. (Debow) to further respond to Plaintiff’s Special Interrogatories, Set 1, Nos. 30, 31, 32, 33 and 34. Additionally, Plaintiff requests sanctions against Debow and her attorneys Bonne, Bridges, Mueller, O’Keefe & Nichols in the amount of $1,560.

RULING: The motion is granted, in part, and denied, in part, as set forth below. Further responses are due and sanctions are payable within 30 days.

On 9/16/22, Plaintiff served Debow with Special Interrogatories, Set 1. (Winokur Decl., Ex.1). On 11/17/22, Defendant served responses and later supplemental responses. (Id., Ex.2, 5). Plaintiff’s meet and confer efforts failed to resolve the issues presented by this motion. (Id., Ex.3, 4, 6, 7). Therefore, pursuant to the extension granted by Debow, on 1/13/23, Plaintiff filed and served the instant motion seeking an order compelling Debow to further respond to Plaintiff’s Special Interrogatories, Set 1, Nos. 30, 31, 32, 33 and 34. Additionally, Plaintiff requests sanctions against Debow and her attorneys Bonne, Bridges, Mueller, O’Keefe & Nichols in the amount of $1,560. (See Winokur Decl., Ex.4). Debow has opposed the motion and requests $1,250.00 in sanctions against Plaintiff and her counsel of record. Plaintiff has filed a reply to the opposition.

SPECIAL INTERROGATORY 30: This interrogatory asks Debow to explain why Plaintiff’s right fallopian tube was removed on September 8, 2021. Ultimately, Debow responded with various objections, which the Court finds to be without merit, and then stated that subject to and without waiving such objections: “Physicians believed they had consent for removal of the fallopian tube.”

Debow contends that the foregoing sufficiently explains why Plaintiff’s right fallopian tube was removed whereas Plaintiff contends that Debow is reading the interrogatory in an artificial manner in a deliberate attempt to evade answering the question. The reply concedes that the information Plaintiff is actually seeking is the underlying medical reason Plaintiff’s right fallopian tube was removed. (See Reply, p.2:11-17). As such, Plaintiff should ask that specific question.

The request to compel a further response to Special Interrogatory 30 is denied. Such denial is without prejudice to Plaintiff serving a more specific interrogatory(ies) on the issue.

SPECIAL INTERROGATORY 31: This interrogatory asks Debow if she contends that it was medically necessary to remove Plaintiff’s right fallopian tube. Debow responded solely with objections which this Court finds to be without merit. In the opposition, Debow argues that the question prematurely seeks expert opinion. This Court disagrees. As stated in County of Los Angeles (2011) 224 CA3d 1446, relied on by Debow, “[q]uestions to the defendant physicians about their impressions and reasons for their action or lack of action at the time the medical procedure was performed are, of course, entirely appropriate.” See County of Los Angeles, supra at 1455-1456.

Debow complains that this interrogatory is not limited to at the time the medical procedure was performed and is stated in the present tense, therefore, it improperly seeks expert opinion. However, nothing prevents Debow from qualifying her response to be at the time of the medical procedure at issue in this case. Additionally, the 29^th Affirmative Defense in Debow’s Answer states that “Defendants maintain this procedure was necessary and appropriate given the facts of this case.” (See Answer 12/23/22 filed p.6:12-14). As such, Plaintiff is entitled to inquire regarding the defense.

The request to compel a further response to Special Interrogatory 31 is granted.

SPECIAL INTERROGATORY 32: This interrogatory asks Debow if her answer to Special Interrogatory 31 is yes, to state all the reasons in support of that contention. Debow asserted the same meritless objections as in response to Special Interrogatory 31.

For the same reasons, the request to compel a further response to Special Interrogatory 31 is granted, the request to compel a further response to Special Interrogatory 32 is granted.

SPECIAL INTERROGATORY 33: This interrogatory asks Debow to identify each witness who could testify to the facts in support of her contention. While Debow refused to state whether she contended that the removal of Plaintiff’s right fallopian tube was medically necessary in response to Special Interrogatory 31, in response to this interrogatory, after asserting the same meritless objections asserted in response to the other interrogatories at issue, Debow stated that she “is unaware of any witnesses outside of those identified within the medical records of Plaintiff.”

First, the response does not make sense because Debow has not stated what her contention is. Therefore, it would be impossible to know who could testify in support of an unmade contention. Also, referring to Plaintiff’s entire medical record is inappropriate. Debow admits the records are approximately 750 pages. It seems highly unlikely that every individual referred to in the medical record would be a witness to whether or not Debow contends the removal of Plaintiff’s right fallopian tube was medically necessary on 9/8/21.

As such, the request to compel a further response to Special Interrogatory 33 is granted.

SPECIAL INTERROGATORY 34: This interrogatory asks Debow to describe each writing which memorializes any of the facts in support of her contention. As with the response to Form Interrogatory 33, Plaintiff responded with unmeritorious objections and then referred to Plaintiff’s medical records.

The response does not make sense for the same reasons set forth above in relation to Special Interrogatory 33. Similarly, referring to Plaintiff’s entire 750-page medical record is improper as Plaintiff is only asking Debow to describe the documents which support her contention of whether or not the procedure was medically necessary. If Debow is actually contending that each one of the 750 pages supports the (unmade) contention, she would seemingly have to be prepared to testify how as Plaintiff is not required to guess.

The request to compel a further response to Special Interrogatory 34 is granted.

SANCTIONS:

The Court finds that Plaintiff is entitled to an award of sanctions due to Debow’s failure to provide a proper response to 4 out of the 5 special interrogatories at issue. CCP 2030.300(d). However, the amount of sanctions is reduced because Plaintiff was not entirely successful on the motion. Therefore, sanctions are imposed on Debow and her attorneys Bonne, Bridges, Mueller, O’Keefe & Nichols in the amount of $1,260.00 calculated at 4 hours to prepare the motion, review the opposition, prepare the reply and appear at the hearing multiplied by $300/hour + $60 filing fee.

Dept. F47

Date: 4/14/23 (originally calendared for 4/13/23)

Case #22STCV18944

MOTION TO COMPEL FURTHER RESPONSES

(Form Interrogatories, Set 1)

Motion filed on 1/13/23.

MOVING PARTY: Plaintiff Trinity Kennard

RESPONDING PARTY: Defendant County of Los Angeles

NOTICE: ok

RELIEF REQUESTED: An order compelling Defendant County of Los Angeles (County) to further respond to Plaintiff’s Form Interrogatories, Set 1, No. 12.6. Additionally, Plaintiff requests sanctions against the County and its attorneys Bonne, Bridges, Mueller, O’Keefe & Nichols in the amount of $1,260.

RULING: The motion is granted. Further responses are due and sanctions are payable within 30 days.

This action for medical battery and negligence arises out of the alleged partial sterilization of Plaintiff Trinity Kennard (Plaintiff) during a C-section performed by Defendant Eliza Debow, M.D. (Debow) on 9/8/21 at Olive View – UCLA Medical Center which is alleged to be owned and operated by Defendant County of Los Angeles (County). Plaintiff alleges that the County and its employees, including Debow, the attending doctor, committed a medical battery when without consent, authorization, or permission, they surgically removed Plaintiff’s right fallopian tube.

On 9/16/22, Plaintiff served the County with Form Interrogatories, Set 1. (Winokur Decl., Ex.1). On 11/17/22, Defendant served responses. (Id., Ex.2). Plaintiff responded with only objection to Form Interrogatory 12.6. Id. Plaintiff’s meet and confer efforts failed to resolve the issues presented by this motion. (Id., Ex.3-6). Therefore, pursuant to the extension granted by the County, on 1/13/23, Plaintiff filed and served the instant motion seeking an order compelling the County to further respond to Plaintiff’s Form Interrogatories, Set 1, No. 12.6. (Id., Ex.4). Additionally, Plaintiff requests sanctions against the County and its attorneys Bonne, Bridges, Mueller, O’Keefe & Nichols in the amount of $1,260. The County has opposed the motion and requests $1,000.00 in sanctions against Plaintiff and her counsel of record. Plaintiff has filed a reply to the opposition.

Form Interrogatory 12.6 asks:

“Was a report made by any PERSON concerning the INCIDENT? If so, state:

(a) the name, title, identification number, and employer of the PERSON who made the report;

(b) the date and type of report made;

(d) the name, ADDRESS, and telephone number of each PERSON who has the original or a copy of the report.”

The County responded:

“Objection. Vague, ambiguous, and overbroad. Plaintiffs’ discovery request is irrelevant to the subject matter of this lawsuit, and the information sought is not reasonably calculated to lead to the discovery of admissible evidence. Code of Civ. Proc, § 2017.010. As phrased, the request seeks information which is protected from discovery under the attorney-client privilege and/or the attorney work-product doctrine. Therefore, this request exceeds the permissible scope of discovery and is not reasonably calculated to lead to the discovery of admissible and/or relevant evidence. May seek documents protected by Evidence Code § 1157. As phrased may seek information protected by Code of Civil Procedure § 2034 et seq.”

The County’s objections are without merit. The interrogatory is clear and not overbroad. The question seeks information relevant to this action (i.e., reports about the incident which is the subject of the action). The existence of a document which contains privileged information is not privileged information. Hernandez (2003) 112 CA4th 285, 293; Best Product, Inc. (2004) 119 CA4th 1181, 1190. Therefore, the subject interrogatory seeks appropriate information regarding the existence of reports made about the incident. As phrased, the response does not even definitively state that reports exist; therefore, the County has failed to meet it burden of establishing preliminary facts which show a privilege applies. See Lopez (2016) 246 CA4th 566, 596.

The County seems to conflate the production of privileged documents with identifying whether such documents exist. Plaintiff’s meet and confer letter specifically stated that she was not seeking privileged reports and requested a privilege log regarding responsive documents the County claims are privileged. (See Winokur Decl., Ex.3). Even if a document request (which this is not) seeks privilege information, a party cannot refuse to provide any substantive responsive based on privilege. Rather, the responding party must provide sufficient factual information for other parties to evaluate the merits of the privilege claim. See CCP 2031.240(c). The information sought in Form Interrogatory 12.6 is similar that which must be provided in a privilege log in response to a request for production of documents. Again, the fact that a privileged document/report exists is not privileged information. Hernandez, supra. The authority relied on by the County in the opposition does not refute the foregoing and actually supports Plaintiff’s position. Therefore, the County must provide a further substantive response to Form Interrogatory 12.6.

The Court finds that Plaintiff is entitled to an award of sanctions due to the County’s failure to provide a proper response to the discovery request at issue. CCP 2030.300(d). Therefore, sanctions are imposed on the County and its attorneys Bonne, Bridges, Mueller, O’Keefe & Nichols in the amount of $1,260.00 calculated at 4 hours to prepare the motion, review the opposition, prepare the reply and appear at the hearing multiplied by $300/hour + $60 filing fee. (See Winokur Decl.).

Dept. F47

Date: 4/14/23

Case #22STCV18944

MOTION TO COMPEL FURTHER RESPONSES

(Demand for Production, Set 1)

Motion filed on 1/13/23.

MOVING PARTY: Plaintiff Trinity Kennard

RESPONDING PARTY: Defendant County of Los Angeles

NOTICE: ok

RELIEF REQUESTED: An order compelling Defendant County of Los Angeles (County) to further respond to Plaintiff’s Demand for Production, Set 1, Nos. 9 and 10. Additionally, Plaintiff requests sanctions against the County and its attorneys Bonne, Bridges, Mueller, O’Keefe & Nichols in the amount of $1,260.

RULING: The motion is granted. Further responses are due and sanctions are payable within 30 days.

This action for medical battery and negligence arises out of the alleged partial sterilization of Plaintiff Trinity Kennard (Plaintiff) during a C-section performed by Defendant Eliza Debow, M.D. (Debow) on 9/8/21 at Olive View – UCLA Medical Center which is alleged to be owned and operated by Defendant County of Los Angeles (County). Plaintiff alleges that the County and its employees, including Debow, the attending doctor, committed a medical battery when without consent, authorization, or permission, they surgically removed Plaintiff’s right fallopian tube.

On 9/16/22, Plaintiff served the County with Demand for Production, Set 1. (Winokur Decl., Ex.1). On 11/17/22, Defendant served responses. (Id., Ex.2). Plaintiff responded with only objection to Demands 9 and 10. Id. Plaintiff’s meet and confer efforts failed to resolve the issues presented by this motion. (Id., Ex.3-6). Therefore, pursuant to the extension granted by the County, on 1/13/23, Plaintiff filed and served the instant motion seeking an order compelling the County to further respond to Plaintiff’s Demand for Production, Set 1, Nos. 9 and 10. (Id., Ex.4). Additionally, Plaintiff requests sanctions against the County and its attorneys Bonne, Bridges, Mueller, O’Keefe & Nichols in the amount of $1,260. The County has opposed the motion and requests $500.00 in sanctions against Plaintiff and her counsel of record. Plaintiff has filed a reply to the opposition.

A propounding party of a document demand may move to compel a further response, if the propounding party deems: (1) a statement of compliance with the demand is incomplete; (2) a representation of inability to comply is inadequate, incomplete, or evasive and/or (3) an objection in the response is without merit or too general. See CCP 2031.310(a). Such a motion must set forth specific facts showing good cause for the discovery and must be accompanied by a meet and confer declaration. CCP 2031.310(b).

Demand 9 seeks:

“A copy of each notification to a state agency regarding this INCIDENT.”

Demand 10 seeks:

“A copy of the report that was filed pursuant to Health & Safety Code Section 1279.1 concerning this INCIDENT.”

As to both demands at issue, the County responded:

“Objection. Vague, ambiguous and overbroad. This Request seeks information which is not relevant to the subject matter of this litigation. This Request seeks documents which are protected by the attorney work-product doctrine and attorney client privilege. California Code of Civil Procedure, section 2018.010 et seq., therefore, it exceeds the permissible scope of discovery and is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. As phrased, this Request seeks information which may be protected from disclosure by California Evidence Code, section 1157.”

“For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement . . . . Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. These rules are applied liberally in favor of discovery, and (contrary to popular belief), fishing expeditions are permissible in some cases.” Gonzalez (1995) 33 CA4th 1539, 1546 (citations and internal quotation marks omitted).

Contrary to the County’s assertions, the demands are clear, are not overbroad and seek documents which are relevant to this action as the demands seek specific notifications and/or reports about the incident which is the subject of this action. Since the documents (if they exist) were sent to outside agencies, it does not appear that they could not be covered by the attorney work-product, attorney-client and/or Evidence Code 1157 privileges. With regard to Demand 9, good cause exists for the County to produce such responsive documents, if they exist, because Plaintiff does not know which state agencies the County may have informed and such documents would provide evidence of what occurred or what led to the removal of Plaintiff’s right fallopian tube. With regard to Demand 10, Health & Safety Code 1279.1 concerns reporting of adverse events to the California Department of Public Health. A report filed pursuant to Health & Safety Code 1279.1, if it exists, would also provide relevant evidence as to what actually occurred. See Health & Safety Code 1279.1(b)(1)(A) (defines an adverse event as a surgery to the wrong body part inconsistent with documented consent).

The opposition focuses on the objection made pursuant to Evidence Code 1157. (See Opposition, p.3:15-p.8:3). The response to Demands 9 and 10 does not even definitively state that responsive documents are being withheld based on such objection. Rather, it states that the demands “seek[s] information which may be protected from disclosure by California Evidence Code, section 1157.” (emphasis added).

The County then vaguely argues that “the documents and/or information underlying these reports contain internal reports regarding the incident” which “encompasses reports made at the direction of attorneys and/or in anticipation of litigation. (See Opposition, p.8:4-6). Again, the County has failed to even state whether or not responsive documents exist. The existence of a document which contains privileged information is not privileged information. Hernandez (2003) 112 CA4th 285, 293; Best Product, Inc. (2004) 119 CA4th 1181, 1190. Additionally, the County has failed to meet its burden of establishing preliminary facts which show a privilege applies. See Lopez (2016) 246 CA4th 566, 596.

CCP 2031.240 provides:

“(a) If only part of an item or category of item in a demand for inspection, copying, testing, or sampling is objectionable, the response shall contain a statement of compliance, or a representation of inability to comply with respect to the remainder of that item or category.

(b) If the responding party objects to the demand for inspection, copying, testing, or sampling of an item or category of item, the response shall do both of the following:

(1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made.

(2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.

(c)(1) 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.

(2) It is the intent of the Legislature to codify the concept of a privilege log as that term is used in California case law. Nothing in this subdivision shall be construed to constitute a substantive change in case law.”

As noted above, at this point, it is not clear whether documents responsive to the demands at issue exist. If the County contends there are no responsive documents, it must state so in a verified response and explain why. See CCP 2031.230. If responsive documents exist and the County is refusing to produce same, the County must comply with CCP 2031.240 (i.e., produce unobjectionable portions, indicate the specific responsive documents and which objection applies, provide a privilege log with regard to documents being withheld based on privilege). See Santa Rosa Memorial Hospital (1985) 174 CA3d 711, 724.

The authority relied on by the County in the opposition does not refute the foregoing and actually supports Plaintiff’s position. Therefore, the County must provide further responses to Demands 9 and 10.

The Court finds that Plaintiff is entitled to an award of sanctions due to the County’s failure to provide a proper response to the discovery requests at issue. CCP 2031.310(h). Therefore, sanctions are imposed on the County and its attorneys Bonne, Bridges, Mueller, O’Keefe & Nichols in the amount of $1,260.00 calculated at 4 hours to prepare the motion, review the opposition, prepare the reply and appear at the hearing multiplied by $300/hour + $60 filing fee. (See Winokur Decl.).