TENTATIVE RULING

Calendar: 9

Date: 4/21/2023

Case No: BC 691050 Trial Date: None Set  

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

MOTIONS TO COMPEL FURTHER RESPONSES TO DOCUMENT DEMANDS, RESPONSES TO QUESTIONS AT DEPOSITION, and PRODUCTION OF DOCUMENTS REQUESTED AT DEPOSITION (2)

Moving Party: Plaintiff Jason Steger    

Responding Party: Defendant James Kao, M.D.

Defendant John Kasher, M.D.        

RELIEF REQUESTED:

Order compelling defendant James Kao, M.D. to answer questions from deposition and produce documents requested at deposition. 

Order compelling defendant James Kao, M.D. to answer questions from deposition and 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 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 (the Hospital) based on the granting of the Hospital’s motion for summary judgment. 

These motions were originally heard as a single motion 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 or motions were 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.”

Plaintiff has now filed two separate motions with separate reservation identification numbers, and two separate statements.   

ANALYSIS:

Plaintiff has now filed two motions to compel, one directed to defendant Dr. Kao, and one directed to defendant Dr. Kasher.  The motions are very similar.  The motions argue briefly that certain documents requested in meet and confer discussions, and evidently in the deposition notices, should be produced, and each defendant instructed to provide testimony on the topics at issue. 

The separate statements appear to request further responses to documents requested in the deposition notices, Requests Nos. 1, 2, 3, 4, 6 and 7. 

Defendants in opposition to the motion indicate that in the course of informal discovery negotiations and meet and confer session, the parties have resolved all but one of the issues initially presented by plaintiff in his moving papers.  Defendants indicate that the only remaining discovery request for purposes of judicial determination is the following, as to each defendant:

“Production of any contractual agreement for employment as between Defendant JOHN A. KASHER, M.D. and Lakeside Community Healthcare.”

“Production of any contractual agreement for employment as between Defendant JAMES KAO, M.D. and Lakeside Community Healthcare.”

[Oppositions, p. 2]. 

The oppositions also include a declaration of counsel for the responding party stating that the parties have agreed “that as pertinent to Plaintiff’s demand for additional testimony and production, the ONLY remaining issues pertained to the production by Defendant of his ‘contract’ with Lakeside Community Healthcare.”  [Tomlinson Decls., para. 3].  The declarations attach meet and confer correspondence dated March 23, 2023, in which counsel for the responding defendants states: 

“Based upon our discussion and agreement, you agreed to withdraw the request for any other documents or responses and the only item left to discuss are the contracts.”  

[Oppositions, Tomlinson Decls., Ex. A]. 

The oppositions also each attach documents which appear to be further responses to the discovery at issue in this case, which were served on March 6, 2023, the same date the motions were filed.  [Tomlinson Decl., paras. 4, Exs. B].  These further responses, which are not addressed in the moving memoranda or separate statements, appear to render the motions moot, requiring the parties to further meet and confer concerning the further responses and file a new motion with respect to any issues unresolved by those further responses.  

However, the court, in the interest of judicial economy, will accept the representations in the oppositions of defendants that the motions are continuing to be pursued by plaintiff and resisted by defendants as to the production of employment contracts with Lakeside Community Healthcare, and considers the motions on their merits only on this discovery request as to each defendant.   

As noted above, the opposition papers frame the outstanding discovery requests as requests for production by each defendant of his employment contract with Lakeside Community Healthcare.

The moving papers in the separate statement, however, do not appear to seek such a document.  The closest requests appear to be Requests No. 6, which request:

“Produce the contract YOU or Lakeside Community Healthcare had with CSJ Providence St. Joseph Medical Center, including amendments, terminations, modifications, addendums, or attachments, at any time from 2010 to present date.”

[Separate Statements, Requests No. 6].

The most recent (March 6, 2023) further responses to these requests appear to be responses to Production Nos. 5, 6 and 7, which are all the same, stating:

“The objections made at deposition stand. Without waiving these objections, Dr. Kasher responds: I am not authorized to produce this document as it is private, privileged, contains trade secrets and proprietary information and contains confidential information as well as private financial information and details. I am not the custodian of this document. Also, this document has nothing to do with my care of plaintiff.” 

[Tomlinson Decl. paras. 4, Exs. B, Further Responses to Production Nos. 5, 6, 7].

As an initial matter, the requests do not appear to seek on their face the contracts between responding defendants and Lakeside Community Healthcare, but the contracts between the responding defendants or Lakeside Community Healthcare and the Hospital.  The motion may be denied on the ground the documents being withheld, the employment agreements between defendants and Lakeside Community Healthcare, have not been expressly and directly requested in the subject discovery. 

However, it appears that through meet and confer the parties now agree that these documents are responsive to some aspect of discovery, are being withheld, and that plaintiff believes they should be produced.

With respect to documents requested in a deposition notice, CCP § 2025.450 (a) provides, in pertinent part:

“(a) If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party..., without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.”

It appears that here the deponents, who are parties to the action, were served with deposition notices, and failed to produce for inspection documents the parties through meet and confer negotiations have agreed are responsive to the requests in deposition notices.   

  Under CCP § 2025.450 (b):

“(b) A motion under subdivision (a) shall comply with both of the following:

(1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”

The burden is on the moving party to show both relevance to the subject matter and specific facts justifying discovery.   Glenfed Develop. Corp. v. Superior Court (1997, 2nd Dist.) 53 Cal.App.4th 1113, 1117.   Once good cause is established by the moving party, the burden then shifts to the responding party to justify any objections made to document disclosure.   See Hartbrodt v. Burke (1996, 2nd Dist.) 42 Cal.App.4th 168, 172-174.

Good cause is shown when a moving party provides a fact-specific showing of relevance.  Kirkland v. Superior Court (2002, 2nd Dist.) 95 Cal.App.4th 92, 98. 

The moving memoranda indicate in connection with the employment contract at issue that defendants have previously taken the position that they are independent contractors of the other parties, and that plaintiff is entitled to employment contracts to test this position.  There is no declaration or documentary evidence submitted with the moving papers which are pointed to or which would appear to support the argument that defendants have taken the position they are independent contractors of the other parties.  It appears from a quick review of the file, and particularly the court of appeal opinion in connection with the Hospital’s motion for summary adjudication, that the Hospital was taking the position that the physicians were independent contractors as to the Hospital.  [Opinion, 08/16/2021, p. 2, etc].  However, it is not clear that the physicians themselves have ever taken this position, as this was not an argument included in their own motion for summary judgment, which was based on an argument that plaintiff would be unable to establish that the physician defendants breached the applicable standard of care.  [Opinion, at 2, n. 2]. 

The oppositions argue that this lawsuit is for the alleged professional negligence of, amongst others, the responding defendants, and that at the time of the medical care in question, Dr. Kao and Dr. Kasher were employees of  Lakeside Community Healthcare, who is not a party in this case.  They indicate that they have throughout this lawsuit produced discovery responses and testified in two depositions confirming they are employees of Lakeside Community Healthcare, as that there was a confidential employment contract outlining the terms and financial agreement of the employment which was maintained by the employer.  Defendants argue that there is nothing in these employment agreements which have anything to do with the level of care provided by defendants to plaintiff.  The oppositions argue that plaintiff accordingly has failed to meet any initial burden on a motion to compel production of those documents, as no good cause for their production has been established by any factual showing whatsoever.    

It appears that plaintiff has failed to establish good cause for the production of the subject employment agreements, as there is no factual showing that the responding defendants are in fact taking the position that they were independent contractors, particularly not with respect to their relationship with their then employer Lakeside Community Healthcare.  The court has seen no evidence or suggestion in the file that responding defendants are taking the position that they are independent contractors and so relieved of liability to plaintiff in this matter, and it appears that the only party which would be asserting or benefit from such an argument, the Hospital, is no longer a party to this matter due to the affirmance of summary judgment in its favor. That summary judgment was not based on any showing of independent contractor status, as the court did not reach the ostensible agency argument made by plaintiff in connection with that motion, and the court of appeal has determined there was no error.  There does not appear to be any argument that responding parties were independent contractors with respect to Lakeside Community Healthcare, and plaintiff does not appear to be pursuing the production of agreements between defendants and the Hospital or Lakeside Community Healthcare and the Hospital. 

Under the circumstances, and particularly in light of the fact that it is questionable that the subject employment contracts were in fact formally requested in the subject discovery, the court finds that plaintiff has failed to meet its initial burden of establishing good cause for the production of the subject documents, that is, of submitting specific facts justifying discovery, a fact-specific showing of relevance.  

Had good cause been established, the oppositions point out that the motions would essentially be moot in light of the responses served since the motions were filed which assert not only objections that the documents include confidential, privileged and proprietary information, but that the documents are not maintained by or are currently in the custody of defendants.  

The court will hear argument concerning whether the motion will be denied outright, or deemed moot in its entirety in light of the recent further responses, or whether the motion should be denied without prejudice to further discovery with respect to the employment relationship between responding defendants and Lakeside Community Healthcare if responding defendants should in the future raise any defense or argument in this action based on their relationships with that entity.   

RULING:

Motion to Compel Responses to Questions at Deposition of James Kao, M.D. and Production of Documents Requested at Deposition is DENIED. 

The Court has considered the motion only as to the document which the opposition indicates has been identified through meet and confer after the motion was filed as the only remaining document at issue, that is:

“Production of any contractual agreement for employment as between Defendant JAMES KAO, M.D. and Lakeside Community Healthcare.”

The Court finds that plaintiff’s motion fails to meet plaintiff’s initial burden of establishing good cause for the production of the subject document, that is, plaintiff has failed to submit specific facts justifying discovery, or a fact-specific showing of relevance.  

Motion to Compel Responses to Questions at Deposition of John Kasher, M.D. and Production of Documents Requested at Deposition is DENIED. 

The Court has considered the motion only as to the document which the opposition indicates has been identified through meet and confer after the motion was filed as the only remaining document at issue, that is:

“Production of any contractual agreement for employment as between Defendant JOHN KASHER, M.D. and Lakeside Community Healthcare.”

The Court finds that plaintiff’s motion fails to meet plaintiff’s initial burden of establishing good cause for the production of the subject document, that is, plaintiff has failed to submit specific facts justifying discovery, or a fact-specific showing of relevance.  

 DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE 

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