Judge: Sandy N. Leal, Case: 2022-01241218, Date: 2023-08-10 Tentative Ruling

Motion to Compel Response to Requests for Admissions

Plaintiff, David L. Gay’s Motion to Compel Further Responses to Request for Admissions, Set One, is GRANTED in part.

The Court denies Defendant MemorialCare Surgical Center at Orange Coast’s (MemorialCare) Request for Judicial Notice in Support of Opposition as unnecessary to the court’s ruling.

Code Civ. Proc. § 2033.290 provides in part: “(a) On receipt of a response to requests for admissions, the party requesting admissions may move for an order compelling a further response if that party deems that either or both of the following apply: ¶ (1) An answer to a particular request is evasive or incomplete. ¶ (2) An objection to a particular request is without merit or too general.”

Timeliness

A motion to compel further responses to requests for admissions must be filed “within 45 days of the service of the verified response, or any supplemental verified response, or any specific later date to which the requesting party and the responding party have agreed in writing.” (Code Civ. Proc. § 2033.290(c).)

Here, MemorialCare served its initial responses to Plaintiff’s Request for Production, Set One by email on 3-28-23. 45 days after 3-28-23 is 5-12-23. The motion was served on 5-4-23 and is timely.

Meet and Confer Efforts

A motion to compel further responses to requests for admission “shall be accompanied by a meet and confer declaration under Section 2016.040 (Code Civ. Proc. § 2033.290 (b)(1).) “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc. § 2016.040.)

Here, Plaintiff’s counsel Adam Dolce attests as follows regarding meet and confer: “Bookmarked hereto as Exhibit 3 is a true and accurate copy of: A meet and-confer letter issued to MemorialCare’s attorneys-of-record on April 7, 2023.” (Dolce Decl., ¶ 5(c).) The meet and confer letter includes a discussion of why Plaintiff finds MemorialCare’s responses to requests 12, 14, 15, 16, 17, 21, 22, 23 and 24 deficient. MemorialCare responded to this meet and confer letter on 4-14-23 and served supplemental responses on 4-28-23. (Dolce Decl. ¶¶ 5(d), (e).)

The Dolce Declaration and Exhibits 3 and 4 demonstrates that the parties have met and conferred as required by Code of Civil Procedure section 2033.290(b)(1).

Merits

Plaintiff David L. Gay moves to compel a further response to Request for Admissions, Set One numbers 12, 14, 15, 16, 17, 21, 22, 23 and 24 from Defendant MemorialCare.

No. 12: “Admit, immediately following a colonoscopy, if a patient is vocally distressed regarding abdominal pain, a physician/medical facility should not discharge that patient until additional tests are performed to determine the basis of those complaints. [“immediately following a colonoscopy” consists of the time between the end of that procedure and when a patient is escorted out of the facility]”

MemorialCare’s response states the following objections: ambiguous, overbroad, seeks legal and/or expert opinion, speculation, attorney-client and/or work product privilege, Evidence Code section 1157, Health and Safety Code section 1370, not reasonable calculated to lead to the discovery of admissible evidence, premature, burdensome and harassing, assumes facts not in evidence. (Separate Statement in Support of Opposition, 2:13-15.) Subject to objections, MemorialCare’s response states: “deny based on lack of information or belief. The ambiguity of this request precludes any further response.” (Id. at 2:26-27.)

Plaintiff contends that all of MemorialCare’s objections are frivolous and without merit, and that the response does not comply with Code of Civil Procedure section 2033.220(c) in coming to its eventual response of denial. (Separate Statement, 3:3-8.)

Code of Civil Procedure section 2033.220(c) states: “[i]f a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter.”

MemorialCare contends that a further response is not required because its responses to form interrogatories and special interrogatories gave factual reasons why it could not provide a more detailed response. (Separate Statement in Support of Opposition, 3:12-6:19.) For example, MemorialCare argues that a further response is not required because “[i]t is undisputed that Defendant Surgical Center does not employ physicians, and itself provides only nursing and non-physician care.”

MemorialCare’s Opposition appears to be making factual arguments that are not applicable to the standard for whether a response to request for admission is sufficient. Although MemorialCare may lack information to respond completely and fully, MemorialCare has cited no legal authority which states that a request for admission is only proper when the parties have fully completed discovery in this case. Because MemorialCare’s response states that it is unable to respond, MemorialCare was required to comply with Code of Civil Procedure section 2033.220(c). As MemorialCare’s response to Request number 12 does not comply with Code of Civil Procedure section 2033.220(c), the Court finds that its response is insufficient.

Further, MemorialCare’s objections are without merit because the Opposition fails to sufficiently substantiate them. MemorialCare appears to argue that responding to this request will require them to rush through their preparation of the case and obtain a full expert opinion on Plaintiff’s claims. However, this is not the case, as this request on its face asks MemorialCare to admit generally whether a “medical facility” should not discharge a “patient” if they have “vocal complaints” after a colonscopy. The request does not ask MemorialCare to admit any ultimate question of liability as to Plaintiff.

Therefore, the motion should be granted as to this request.

No. 14: “Admit it is more likely than not that Gay experienced a splenic injury during the colonoscopy Dr. Nguyen performed on him.”

MemorialCare states the same objections as to request number 12. Subject to objections, MemorialCare’s response states: ““[r]esponding Party is aware records of subsequent treating healthcare providers of Mr. Gay reference a suspected injury to the spleen or splenic artery, but Responding Party otherwise itself has no direct knowledge, and thus denies this request based on lack of information or belief.” (Separate Statement in Support of Opposition, 6:25-7:14.)

The Court should find that this response does not comply with Code of Civil Procedure section 2033.220(c) for the same reasons as to request number 12. Therefore, the motion is granted as to this request.

No. 15: “Admit, but for Gay’s splenic injury, he likely would not have otherwise experienced those hospitalizations and injuries set forth in the Second Amended Complaint at ¶¶ 40 through 69.”

MemorialCare’s response to this request is substantially identical to its response to request number 14. The Court therefore grants the motion as to this request for the same reasons as to request number 14.

No. 16: “Admit a physician holding themselves out as a specialist in a particular field of medicine should be board-certified in that same field.”

MemorialCare states the same objection as its response to request number 15. Subject to objections, MemorialCare’s response states: “Deny based on lack of information or belief. The ambiguity of this request precludes any further response.” (Separate Statement in Support of Opposition, 17:9-10.)

This response also fails to comply with Code of Civil Procedure section 2033.220(c). Therefore, the Court grants the motion as to request number 16 for the same reasons as to request number 12.

No. 17: “Admit a reasonably prudent patient would consider board certification of a treating physician an important component in their medical decisions.”

MemorialCare’s response to this request is identical to its response to request number 16. The motion should be granted for the same reasons as to request number 16.

No. 21: Admit during the relevant time-period that Gay was a consumer as defined by Civil Code § 1761(d).

No. 22: Admit during the relevant time-period that you were a person as defined by Civil Code § 1761(c).

No. 23: Admit during the relevant time-period that the services you provided to Gay constituted services as defined by Civil Code § 1761(b).

No. 24: Admit during the relevant time-period that the service you provided to Gay constituted transactions as defined by Civil Code § 1761(e).

MemorialCare’s response to each of requests 21-24 was identical to its response to requests 16 and 17. (Separate Statement in Support of Motion, 26:20-27:5.) The Court therefore grants the motion as to requests 21-24 for the same reasons as to request number 16.

Monetary Sanctions

Plaintiff moves for an award of sanctions against MemorialCare and its counsel on the grounds that its failure to fully respond to these requests is a misuse of the discovery process and that MemorialCare did not act with substantial justification. (Motion, 7:23-8:17.) MemorialCare contends that it should not be sanctioned because it provided responses in good faith and provided explanations for why it could not respond further in its response to form interrogatories and special interrogatories, which Plaintiff allegedly failed to acknowledge. (Opposition, 17:26-18:10.)

Code of Civil Procedure section 2033.290(d) provides: “(d) The 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 further response, 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.”

Based on the above discussion regarding MemorialCare’s arguments for not responding to Plaintiff’s requests, the Court finds that MemorialCare did not act with substantial justification such that imposing sanctions would be unjust.

Plaintiff’s counsel attests that he requests sanctions of $3,232.70 against MemorialCare and its counsel, jointly and severally. (Dolce Decl. ¶ 14.) This amount compromises of 7.20 hours to prepare the motion, 2.50 hours to review the opposition, prepare a reply, and prepare for and attend the hearing, at $325 per hour. (Dolce Decl. ¶¶ 10-12.) This also includes $71 in filing fees and $9.20 to file a reply. (Dolce Decl. ¶ 13.)

As there was no reply filed, the Court will reduce the amount requested by the $9.20 reply filing fee. The Court will also reduce the amount requested to review the opposition and prepare a reply by half, or $406.25, as Plaintiff did not prepare a reply. Therefore, the Court GRANTS Plaintiff’s request for monetary sanctions in part in the amount of $2,817.25, against MemorialCare and its counsel, jointly and severally, as the Court finds the other amounts requested are reasonable.

Based on the foregoing, Plaintiff’s Motion to Compel Further Responses to Request for Admissions, Set One is GRANTED. Defendant MemorialCare is to serve verified, supplemental responses and pay monetary sanctions of $2,817.25 within 30 days of notice of the court’s ruling.

Plaintiff is to give notice.