TENTATIVE RULING

Calendar: 9

Date: 3/10/2023

Case No: BC 691050 Trial Date: June 26, 2023 

Case Name: Steger v. CSJ Providence St. Joseph Medical Center, et al.

MOTION TO COMPEL FURTHER RESPONSES TO DOCUMENT DEMANDS, RESPONSES TO QUESTIONS AT DEPOSITION, and PRODUCTION OF DOCUMENTS REQUESTED AT DEPOSITION

Moving Party: Plaintiff Jason Steger    

Responding Party: Defendant Olympus Corporation of Americas       

RELIEF REQUESTED:

Order compelling defendant Olympus Corporation of Americas to produce documents improperly designated as privileged and withheld by defendant, to order the deposition witness to testify concerning the purported privileged topics, and to produce documents requested at deposition. 

MONETARY SANCTION:

 None sought 

FACTUAL BACKGROUND:

Plaintiff Jason Steger alleges that in October of 2016, plaintiff was admitted to defendant CSJ Providence St. Joseph Medical Center with abdominal pain, and that defendants, various medical providers, negligently performed a colonoscopy procedure on plaintiff which perforated his colon in multiple areas.  Plaintiff alleges that after the procedure, his pain worsened and he went into septic shock.  Plaintiff alleges that he ultimately underwent a total colectomy with ileostomy and other procedures, and his entire colon was removed. 

 

On September 6, 2019, the court heard a motion for summary judgment brought by defendant Providence St. Joseph Medical Center, which was granted on the ground that in opposition to the motion, plaintiff had failed to submit expert medical testimony to raise a triable issue of material fact.  The court denied a motion for new trial on October 25, 2019, and on January 17, 2020, heard a motion for relief under CCP § 473 (b), which was denied. 

The file shows that on February 4, 2020 plaintiff filed a Notice of Appeal, giving notice plaintiff is appealing the court’s orders of September 6, 2019, October 25, 2019, and January 17, 2020.

On July 6, 2020, plaintiff filed an Amendment to Complaint, substituting moving defendant Olympus America, Inc. as the true name of the defendant designated in the complaint as Doe 1.   

The operative complaint alleges that  defendant Olympus America sells, markets and services medical products, including endoscopes such as the specific endoscopes involved in the subject incident, that the endoscopes were defective, that the Olympus defendants performed inadequate evaluation and testing of the scopes, including failing to properly determine the scope’s reprocessing protocol adequately disinfected the device for safe subsequent use in multiple endoscopic patients, and fraudulently marketed the scopes, as a result of which plaintiff suffered injuries. 

The file shows that on November 15, 2021, the court of appeal filed its Remittitur in this matter, affirming the trial court judgment in favor of defendant CSJ Providence St. Joseph Medical Center based on the granting of the Hospital’s motion for summary judgment. 

This motion was originally heard on December 2, 2022.  The matter was continued.   The minute order indicated that the motion was actually three motions brought as one motion and was not accompanied by a separate statement, as required under CRC Rule 3.1345.  The minute order states that the court “continues this matter with plaintiff ordered to reserve three separate hearing dates, and pay the requisite additional filing fees.”  The minute order further states, “If plaintiff chooses to continue the matter and refile the motions as three separate motions, each of the three motions must be accompanied by a separate statement which fully complies with the requirements of CRC Rule 3.1345 (c).” 

Moving party evidently continued the hearing under the same reservation number as previously used to January 20, 2023, and filed and served on December 27, 2022, a Separate Statement and Plaintiff’s Evidence in Support of Separate Statement.  No separate motion was filed.  

On January 20, 2023, the court issued a tentative ruling via posting on LACourt.org website.  The matter was called for hearing and argued, and the court adopted its tentative ruling and ordered the matter “CONTINUED (final time).”  

The minute order specifies:

“If plaintiff chooses to continue the matter and refile the motion, which appears to pertain only to written Requests for Production of Documents, any continued motion must be supported by a separate motion, memorandum, separate statement, and any other supporting documents, to be filed before the hearing date on notice as required by code. The separate statement must fully comply with the requirements of CRC Rule 3.1345 and include all responses and further/amended responses to each request, and information concerning any privilege log/logs served and the documents sought in connection with such privilege claims.”

No further moving papers have been filed in connection with the motions. 

Defendant Olympus America has filed a Second Renewed Opposition to the Motion to Compel Production of Documents, confirming that no further noticed motion or separate statement have been filed or served.   

ANALYSIS:

Procedural

Plaintiff has failed to file a separate motion as required by the court’s previous minute order, making it difficult to determine what discovery plaintiff intends to pursue at this hearing.   

The opposition argues that plaintiff has violated the court’s direct orders, twice, as plaintiff has failed to file separate motions, making it nearly impossible for defendant to understand which issues are actually being raised and to fully respond to them. 

The court now denies the motion for the failure of plaintiff to comply with this court’s December 2, 2022 order and January 20, 2023 order requiring that a motion be refiled if plaintiff seeks by continuance to have a motion determined on its merits.   

Incomplete separate statement

As previously noted by the court, and again pointed out in the opposition, the separate statement which has been filed, and upon which plaintiff evidently relies to pursue certain document requests, is not complete.  The separate statement sets forth several Requests in Dispute, including Requests Nos. 1, 3, 4, 5, 6 and 7.   The separate statement then sets forth the Response to each request, but does not set forth the responses included in the Amended Responses to Plaintiff’s Request for Production of Documents served on September 2, 2022.  [See Hoffman Decl., para. 12, Ex. F].    

A review of the Amended Responses and the Separate Statement shows that this is accurate.  For example, the amended response to Request No. 1 includes a sentence indicating that a search has been made of Dr. Ross Segan’s emails, and that Olympus will produce non-privileged emails located during that search. [Ex. F p.5:7-9].  This response is not included in the separate statement, making it impossible for the court from the separate statement to understand the current status of the discovery provided.  [See Separate Statement, p. 5:22].  

As noted above, the court’s December 2, 2022 minute order stated, “If plaintiff chooses to continue the matter and refile the motions as three separate motions, each of the three motions must be accompanied by a separate statement which fully complies with the requirements of CRC Rule 3.1345(c).” 

The court’s January 20, 2023 minute order again stated that “any continued motion must be supported by a separate motion, memorandum, separate statement, and any other supporting documents, to be filed before the hearing date on notice as required by code.”

The court specified, “The separate statement must fully comply with the requirements of CRC Rule 3.1345 and include all responses and further/amended responses to each request, and information concerning any privilege log/logs served and the documents sought in connection with such privilege claims.”

 

CRC Rule 3.1345(c) provides that a separate statement is a “separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue.  This separate statement, “must include” for each discovery request to which a further response is requested, “(1) The text of the request, interrogatory, question or inspection demand” in addition to “(2) The text of each response, answer or objection, and any further responses or answers, ...”  and “(3) A statement of the factual and legal reasons for compelling further responses, answers, or production as to each matter in dispute.”   The separate statement must also include, “(4) If necessary, the text of all definitions, instructions and other matters required to understand each discovery requests and the responses to it,” and “(6) If the pleadings, other documents in the file, or other items of discovery are relevant to the motion, the party relying on them must summarize each relevant document.”  (Emphasis added).  

The subdivision further states that “The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response.” 

Here, there are other matters required to be included, the text of the amended responses, in order for the court to determine the full responses and  whether they are sufficient.  As noted above, the separate statement must be full and complete so that the court is not required to, for example, track down and review the amended responses to each request.  

In addition, even if the court were so inclined, the court cannot itself remedy the problem by reviewing the amended responses as to each request, as  the combined motion previously filed as well as the newly filed separate statement indicate that plaintiff is seeking documents evidently previously identified on a privilege log.  [See Motion, pp. 4-6].  The separate statement argues, for example:

“In addition, the privilege log is insufficient that may or may not relate to this request, is insufficient. The purpose of the privilege log in discovery proceedings is to provide specific factual description of documents in aid of substantiating a claim of privilege in connection with a request for document production, and is intended to permit a judicial evaluation of the claim of privilege. Best Products, Inc. v. Superior Court (2004) 119 CA4th 1181. The Court is requested to overrule all of these objections and order all responsive documents be produced.”

[Separate Statement, p. 6:20-26, italics in the original]. 

Without some designation of which items on the privilege log plaintiff deems responsive, and provision of the text of the privilege log or summary of its contents in the separate statement, the court cannot make the required determination if the objections based on attorney-client privilege and work product are appropriate or supported.   The privilege log and entries would constitute “other items of discovery” which “are relevant to the motion,” under CRC Rule 3.1345(c) such that “the party relying on them,” plaintiff, “must summarize each relevant document.”  

The separate statement does not “fully comply” with CRC Rule 3.1345(c), as previously ordered by the court.  The portion of the previous motion plaintiff evidently intends to pursue with the filing of the separate statement cannot be considered by the court under these circumstances. 

As noted in the court’s two previous minute orders, the motion may be denied outright on this ground. 

In People ex rel. Harris v. Sarpas (2014) 225 Cal.App.4th 1539, the court of appeal held:

“The trial court denied the second motions to compel because Defendants had not shown a reasonable and good faith attempt at meeting and conferring and because the motions failed to comply with the applicable rules regarding separate statements. We find no abuse of discretion in the trial court's rulings.”

People, at 1554

Defendant in opposition again relies on Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, in which the court of appeal considered a challenge to a trial court’s order denying a motion to compel discovery, which the trial court had denied on both substantive and procedural grounds. The court of appeal held, “we conclude that the procedural basis cited by the trial court was a sufficient basis for the exercise of discretion to deny the motion to compel.”  Mills, at 892.   The court of appeal accordingly did not discuss the substantive ground addressed by the trial court.  Mills, at 892, n. 23.  In Mills, a separate statement had been submitted, but did not set forth the full responses to each of the discovery requests at issue, instead grouping together several requests, stating responses “in relevant part” and truncating some responses. The court of appeal also noted that the statement provided statements of reasons for compelling further responses which were confusing because it was not indicated which request or requests the reasons related to.  Mills, at 893.   The court of appeal rejected an argument that the full responses had been available to the court as the responses were attached to the motion, holding that the rule expressly forbids this practice by requiring the statement to be “full and complete,” and expressly not permitting material to be incorporated into the separate statement by reference.  Mills, at 893, citing former Rule 335 and current Rule 3.1020(c). 

The court of appeal considered former Rule 335, which has not been significantly modified in these respects in the current rule, and concluded:

“We conclude that because Plaintiffs did not comply with the requirements of former rule 335, the trial court was well within its discretion to deny the motion to compel discovery on that basis. (Cf. Neary v. Regents of University of California (1986) 185 Cal.App.3d 1136, 1145 [230 Cal. Rptr. 281] [describing trial court's denial of motions to compel discovery because of a nonconforming separate statement].)”

Mills, at 893.

Here, again, while a separate statement has been filed, it is defective, and fails to comply with the rule despite the court’s previous order that a fully compliant separate statement be filed, and the court’s previous ruling finding that the separate statement submitted was not satisfactory, and ordering that a new complete separate statement was required to be filed.   

Again, as was previously the case, the situation is one in which the court itself cannot meaningfully evaluate the various discovery requests, and the outstanding responses thereto, including the follow up privilege logs, without a thorough separate statement.  

Plaintiff has been permitted two opportunities to address this issue, and the court previously indicated that this would be the final opportunity.  Plaintiff has failed to comply with the court’s previous orders, and the motion now is denied.  

RULING:

Motion to Compel Production of Documents Designated as Privileged, Compel Responses to Questions at Deposition, and to Compel Production of Documents Requested at Deposition is DENIED. 

No further moving or supporting papers have been filed by moving party in connection with the motion. The Court has received and reviewed the Second Renewed Opposition papers.  

The motion fails to comply with this Court’s December 2, 2022 order, and this Court’s January 20, 2023 order requiring that if plaintiff intended to pursue the motion further, plaintiff refile the combined motion as three separate motions.  There is no separate motion filed or refiled here. 

  

The motion is also denied on the additional ground that plaintiff has failed to comply with the Court’s order requiring the filing of a separate statement fully complying with CRC Rule 3.1345 (c).  The separate statement on file is incomplete, does not comply with the Court’s orders, and no amended separate statement complying with the Court’s January 20, 2023 order has been filed or served.  See People ex rel. Harris v. Sarpas (2014) 225 Cal.App.4th 1539, 1554; Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 892-893.

 GIVEN THE CORONAVIRUS CRISIS, AND TO ADHERE TO HEALTH GUIDANCE THAT DICTATES SAFETY MEASURES, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

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