Judge Salvatore Sirna, Case 22PSCV02033 2023-03-09 Tentative Ruling

Judge: Salvatore Sirna, Case: 22PSCV02033, Date: 2023-03-09 Tentative Ruling

Case Number: 22PSCV02033 Hearing Date: March 9, 2023 Dept: G

Plaintiff Brent Allen Rupnow’s Motion to Compel Answers to Special Interrogatories, Set One

Respondent: Defendant Sarah Lee Kendall

TENTATIVE RULING

Plaintiff Brent Allen Rupnow’s Motion to Compel Answers to Special Interrogatories, Set One is GRANTED IN PART as to Nos. 6, 8, and 12, and DENIED IN PART as to Nos. 2, 4, 5, 7, 9, 10, 11, 13, 14, 14 (erroneously numbered), 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, and 25.

Defendant is ordered to serve further and complete code-compliant responses without objection on Plaintiff within twenty (20) days of the issuance of this order.

BACKGROUND

This is an action for medical malpractice. On September 20, 2021, Plaintiff Brent Allen Rupnow’s twelve-year-old daughter began receiving professional therapy from Sarah Lee Kendall (Kendall or Defendant), a licensed therapist who worked for Crossroads Family Therapy LLC (Crossroads). After May 13, 2022, Kendall left Crossroads and began working for Abundance Therapy Center, Inc. (Abundance) while still providing therapy to Plaintiff’s daughter. Plaintiff alleges medical malpractice on the grounds that the daughter’s therapy resulted in the daughter becoming alienated from Plaintiff.

On November 23, 2022, Plaintiff filed a complaint against Kendall, Karen H. Allen, Crossroads, Abundance, and Does 1-10 (collectively, Defendants), alleging a single cause of action for professional healthcare malpractice. On February 9, 2023, the court sustained a demurrer to Plaintiff’s Complaint.

On February 6, 2023, Plaintiff filed the present motion.

On February 27, 2023, Plaintiff filed a First Amended Complaint (FAC) against the same Defendants, alleging the following causes of action: (1) negligence, (2) negligence per se, (3) negligent hiring, supervision, and retention, and (4) intentional infliction of emotional distress.

A hearing on Plaintiff’s discovery motion is set for March 9, 2023. Additional hearings on discovery motions are set for March 23, March 30, April 5, and April 6. A hearing on a demurrer is also set for April 12 and a case management conference is set for April 26.

ANALYSIS

Plaintiff moves to compel Defendant to provide additional responses to Plaintiff’s special interrogatories, set one.

Legal Standard

A party may file a motion compelling further answers to interrogatories if it deems the responses are inadequate, incomplete, or evasive, or an objection in the responses is without merit or too general. (Code Civ. Proc., § 2030.300.) The motion shall be accompanied with a meet and confer declaration. (Code Civ. Proc., § 2030.300, subd. (b).) Each answer in the response must be “as complete and straightforward as the information reasonably available to the responding party permits,” (Code Civ. Proc., § 2030.220, subd. (a)) and “[i]f an interrogatory cannot be answered completely, it shall be answered to the extent possible.” (Code Civ. Proc., § 2030.220, subd. (b).) Pursuant to Code of Civil Procedure section 2030.300, subdivision (d), “[t]he court shall impose a monetary sanction under Chapter 7 (commencing with¿Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

Discussion

On December 26, 2022, Plaintiff served Defendant with Special Interrogatories, Set One via mail. (Rupnow Decl., ¶ 2.) On January 26, 2023, Defendant’s counsel served Defendant’s responses on Plaintiff. (Rupnow Decl., ¶ 4.) Plaintiff alleges Defendant provided evasive and incomplete answers along with unmeritorious objections. (Rupnow Decl., ¶ 5.) In response, Plaintiff emailed Defendant’s counsel a letter on January 28 that addressed Plaintiff’s issues with Defendant’s responses. (Rupnow Decl., ¶ 6-7.)

Special Interrogatory No. 2

Plaintiff argues Defendant’s response is incomplete, evasive, and vague. The court finds it is not as Defendant merely replied with how competence is determined pursuant to Business and Professions Code section 4982, subdivision (s). Thus, the court DENIES Plaintiff’s motion as to this interrogatory.

Special Interrogatory No. 4

Defendant objects to this interrogatory on the grounds of psychotherapist privilege. Plaintiff contends this information is not privileged as Plaintiff is the daughter’s father with legal custody. The court disagrees as a similar argument was already rejected by the Court of Appeal in In Re Daniel C.H. (1990) 220 Cal.App.3d 814, 827-828 (Daniel C.H.). Furthermore, because Plaintiff is not the daughter’s legal representative in this action, Plaintiff cannot waive the privilege. (Cf. In Re Cole C. (2009) 174 Cal.App.4th 900, 910-911 (Cole C.) [holding dependent minor’s guardian ad litem held the psychotherapist privilege].) Thus, the court DENIES Plaintiff’s motion as to this interrogatory.

Special Interrogatory No. 5

Defendant objects to this interrogatory on the grounds of psychotherapist privilege. Plaintiff maintains this information is not privileged as Plaintiff is the daughter’s father with legal custody. The court disagrees as a similar argument was already rejected by the Court of Appeal in Daniel C.H., supra, 220 Cal.App.3d at p. 827-828. Furthermore, because Plaintiff is not the daughter’s legal representative in this action, Plaintiff cannot waive the privilege. (Cf. Cole C., supra, 174 Cal.App.4th at p. 910-911 [holding dependent minor’s guardian ad litem held the psychotherapist privilege].) Thus, the court DENIES Plaintiff’s motion as to this interrogatory.

Special Interrogatory No. 6

Plaintiff argues Defendant’s response is evasive and incomplete. The court OVERRULES Defendant’s objections, except for the objection that goes to propounding party’s request that documents be attached, and GRANTS Plaintiff’s motion as to this interrogatory.

Special Interrogatory No. 7

Plaintiff contends Defendant’s response is evasive and incomplete. The court SUSTAINS Defendant’s objection on the grounds that the interrogatory is conjunctive or disjunctive in violation of Code of Civil Procedure section 2030.060, subdivision (f) and DENIES Plaintiff’s motion as to this interrogatory.

Special Interrogatory No. 8

Plaintiff maintains Defendant’s response is evasive and incomplete. The court OVERRULES Defendant’s objections, except for the objection that goes to propounding party’s request that documents be attached, and GRANTS Plaintiff’s motion as to this interrogatory.

Special Interrogatory No. 9

Plaintiff argues Defendant’s response is evasive and incomplete. Defendant objects to this interrogatory on the grounds of psychotherapist privilege. The court disagrees with Plaintiff and finds psychotherapist privilege applicable here. (Daniel C.H., supra, 220 Cal.App.3d at p. 827-828.) Furthermore, because Plaintiff is not the daughter’s legal representative in this action, Plaintiff cannot waive the privilege. (Cf. Cole C., supra, 174 Cal.App.4th at p. 910-911 [holding dependent minor’s guardian ad litem held the psychotherapist privilege].) Thus, the court DENIES Plaintiff’s motion as to this interrogatory.

Special Interrogatory No. 10

Plaintiff contends Defendant’s response and CV is incomplete and evasive. The court disagrees as Defendant’s CV is responsive to Plaintiff’s request. Thus, the court DENIES Plaintiff’s motion as to this interrogatory.

Special Interrogatory No. 11

Plaintiff maintains Defendant’s response and CV is incomplete and evasive. The court disagrees as Defendant’s CV is responsive to Plaintiff’s request. Thus, the court DENIES Plaintiff’s motion as to this interrogatory.

Special Interrogatory No. 12

Plaintiff argues Defendant’s response is evasive and incomplete. The court OVERRULES Defendant’s objections and GRANTS Plaintiff’s motion as to this interrogatory.

Special Interrogatory No. 13

Plaintiff contends Defendant’s response is complete because Defendant provided a response from the DSM-5 manual. The court disagrees as Plaintiff asked for Defendant to state how a therapist makes a diagnosis under DSM-5. Thus, the court DENIES Plaintiff’s motion as to this interrogatory.

Special Interrogatory No. 14

Plaintiff argues Defendant’s response is evasive and incomplete. The court SUSTAINS Defendant’s objections on the grounds that this special interrogatory is oppressive, harassing, burdensome, vague, and seeks opinion without establishing foundation. Thus, the court DENIES Plaintiff’s motion as to this interrogatory.

Special Interrogatory No. 14 (erroneously numbered)

Special Interrogatory No. 15

Plaintiff contends Defendant’s response is evasive and incomplete. The court SUSTAINS Defendant’s objections on the grounds that this special interrogatory is oppressive, harassing, burdensome, vague, and seeks opinion without establishing foundation. Thus, the court DENIES Plaintiff’s motion as to this interrogatory.

Special Interrogatory No. 16

Plaintiff maintains Defendant’s response is evasive and incomplete. The court SUSTAINS Defendant’s objections on the grounds that this special interrogatory is oppressive, burdensome, vague, and seeks opinion without establishing foundation. Thus, the court DENIES Plaintiff’s motion as to this interrogatory.

Special Interrogatory No. 17

Plaintiff argues Defendant’s response is evasive and incomplete. The court SUSTAINS Defendant’s objections on the grounds that this special interrogatory is oppressive, burdensome, vague, and seeks opinion without establishing foundation. Thus, the court DENIES Plaintiff’s motion as to this interrogatory.

Special Interrogatory No. 18

Plaintiff argues Defendant’s response is evasive and incomplete. The court SUSTAINS Defendant’s objections on the grounds that this special interrogatory is oppressive, burdensome, vague, and seeks opinion without establishing foundation. Thus, the court DENIES Plaintiff’s motion as to this interrogatory.

Special Interrogatory No. 19

Plaintiff contends Defendant’s response is evasive and incomplete. The court SUSTAINS Defendant’s objections on the grounds that this special interrogatory is oppressive, burdensome, vague, and seeks opinion without establishing foundation. Thus, the court DENIES Plaintiff’s motion as to this interrogatory.

Special Interrogatory No. 20

Plaintiff maintains Defendant’s response is evasive and incomplete. The court SUSTAINS Defendant’s objections on the grounds that this special interrogatory is conjunctive or disjunctive, oppressive, burdensome, vague, and seeks opinion without establishing foundation. Thus, the court DENIES Plaintiff’s motion as to this interrogatory.

Special Interrogatory No. 21

Plaintiff argues Defendant’s response is evasive and incomplete. The court SUSTAINS Defendant’s objections on the grounds that this special interrogatory is oppressive, burdensome, vague, and seeks opinion without establishing foundation. Thus, the court DENIES Plaintiff’s motion as to this interrogatory.

Special Interrogatory No. 22

Plaintiff contends Defendant’s response is evasive and incomplete. The court SUSTAINS Defendant’s objections on the grounds that this special interrogatory is oppressive, burdensome, vague, and seeks opinion without establishing foundation. Thus, the court DENIES Plaintiff’s motion as to this interrogatory.

Special Interrogatory No. 23

Special Interrogatory No. 24

Plaintiff argues Defendant’s response is evasive and incomplete. The court SUSTAINS Defendant’s objections on the grounds that this special interrogatory is oppressive, burdensome, vague, and seeks opinion without establishing foundation. Thus, the court DENIES Plaintiff’s motion as to this interrogatory.

Special Interrogatory No. 25

Defendant objects to this interrogatory on the grounds of psychotherapist privilege. Plaintiff contends this information is not privileged as Plaintiff is the daughter’s father with legal custody. The court disagrees as a similar argument was already rejected by the Court of Appeal in Daniel C.H., supra, 220 Cal.App.3d at p. 827-828. Furthermore, because Plaintiff is not the daughter’s legal representative in this action, Plaintiff cannot waive the privilege. (Cf. Cole C., supra, 174 Cal.App.4th at p. 910-911 [holding dependent minor’s guardian ad litem held the psychotherapist privilege].) Thus, the court DENIES Plaintiff’s motion as to this interrogatory.

Sanctions

Lastly, Plaintiff requests an unspecified award of sanctions. Because the court finds Defendant was substantially justified in opposing Plaintiff’s motion to compel further, the court declines to award sanctions. (Code Civ. Proc., § 2030.300, subd. (d).)

CONCLUSION

Based on the foregoing, Plaintiff’s motion to compel further responses to Special Interrogatories, Set One is GRANTED IN PART as to Nos. 6, 8, and 12, and DENIED IN PART as to Nos. 2, 4, 5, 7, 9, 10, 11, 13, 14, 14 (erroneously numbered), 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, and 25. Defendant is ordered to serve further and complete code-compliant responses without objection on Plaintiff within twenty (20) days of the issuance of this order.