Judge Teresa A. Beaudet, Case Number: 22STCV06517, Date: 2023-08-10 Tentative Ruling

Plaintiffs Devin Estime, a minor, by and through his Guardian Ad Litem, Arti Bhimani, Michel Estime, and Arti Bhimani filed this action on February 22, 2022 against a number of defendants. On May 26, 2022, Plaintiff Devin Estime, a minor, by and through his Guardian Ad Litem, Arti Bhimani (“Plaintiff”) filed the operative First Amended Complaint (“FAC”) against defendants Southern California Permanente Medical Group (“SCPMG”) and Enrique Earle Emel, M.D. (“Emel”) (jointly, “Defendants”). The FAC alleges causes of action for (1) negligence, and (2) unfair business practices.

In the FAC, Plaintiff alleges that “DEFENDANTS failed to adhere to standard protocols for the diagnosis and treatment of [Plaintiff’s] scoliosis, thereby forcing [Plaintiff] to take the drastic measure of undergoing immediate and very painful spinal surgery. As a result of DEFENDANTS’ negligence, [Plaintiff] endured pain and suffering and must contend with lifelong complications concerning his spine. DEFENDANTS’ failure to diagnose [Plaintiff] is due to its unlawful and unfair business practice that rewards doctors that do not refer patients to specialist and for additional extensive tests, such as x-rays, MRIs, and CT-Scans.” (FAC, ¶ 1.)

Plaintiff now moves “for an order granting Plaintiff leave to amend his First Amended Complaint to include a prayer for punitive and exemplary damages and allegations in support thereof against Defendants Southern California Permanente Medical Group and Enrique Earle Emel, M.D…” Defendants oppose.

A motion to amend a pleading before trial must include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments. (¿¿Cal. Rules of Court, rule 3.1324, subd. (a).)¿¿ The motion must also state what allegations are proposed to be deleted or added, by page, paragraph, and line number. (¿Cal. Rules of Court, rule 3.1324, subd¿. (a).) Finally, “¿[a] separate declaration must accompany the motion and must specify: (1)¿The effect of the amendment; (2)¿Why the amendment is necessary and proper; (3)¿When the facts giving rise to the amended allegations were discovered; and (4)¿The reasons why the request for amendment was not made earlier.¿” (Cal. Rules of Court, Rule 3.1324, subd. (b).)

In addition, pursuant to Code of Civil Procedure section 425.13, subdivision (a), “[i]n any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code. The court shall not grant a motion allowing the filing of an amended pleading that includes a claim for punitive damages if the motion for such an order is not filed within two years after the complaint or initial pleading is filed or not less than nine months before the date the matter is first set for trial, whichever is earlier.”

Plaintiff’s counsel attaches as Exhibit A to his declaration a copy of Plaintiff’s proposed Second Amended Complaint (“SAC”). (Ganesan Decl., ¶ 3, Ex. A.) In addition, Plaintiff’s counsel provides a copy of the redlined version of Plaintiff’s proposed SAC, showing the changes made to the FAC. (Ganesan Decl., ¶ 4, Ex. B.) In the proposed SAC, Plaintiff seeks to add additional factual allegations and a prayer for punitive damages. (Ganesan Decl., ¶ 4, Ex. B.) Plaintiff argues that “[t]his case is subject to punitive damages because Dr. Emel actively concealed Devin’s diagnosis of scoliosis from Devin and his mother, Arti Bhimani, and misled them as to the cause of the concern they raised about Devin’s hunched posture at his March 8, 2021 wellness visit.” (Mot. at p. 1:5-8.)

As an initial matter, Defendants assert that the instant motion is untimely. As set forth above, Code of Civil Procedure section 425.13, subdivision (a) provides that “[t]he court shall not grant a motion allowing the filing of an amended pleading that includes a claim for punitive damages if the motion for such an order is not filed within two years after the complaint or initial pleading is filed or not less than nine months before the date the matter is first set for trial, whichever is earlier.”

The initial Complaint in this action was filed on February 22, 2022. The instant motion was filed less than two years later, on October 24, 2023. Defendants state that this matter was initially set for trial on August 22, 2023. (Bradford Decl., ¶ 4.) The Court notes that on May 9, 2023, a Case Management Conference was held in this matter. The Court’s May 9, 2023 minute order provides, inter alia, that “Jury Trial is scheduled for 08/22/23 at 08:30 AM in Department 50 at Stanley Mosk Courthouse.” Defendants assert that because “[t]he matter was initially set for trial on August 22, 2023,” “[t]his made the deadline for the motion November 22, 2022.” (Opp’n at p. 9:2-3.) As set forth above, Plaintiff filed the instant motion after this date, on October 24, 2023.

Plaintiff asserts that the motion is timely. In the motion, Plaintiff cites to Goodstein v. Superior Court (1996) 42 Cal.App.4th 1635, 1638, where the Court of Appeal found that “[t]his case presents an example of a plaintiff who may not, due to circumstances beyond her control, be able to comply with the nine-month time limitation set out in section 425.13. As a result, it may be necessary in the interest of fairness and justice for the court to exercise its discretion to relieve the plaintiff from an impossible or impracticable time limitation. While we hold that a trial court does retain the discretionary flexibility to make such an order, we cannot determine from the record whether this case actually presents sufficient facts to warrant such an exercise of discretion.” The Goodstein Court found as follows:

“If in fact a plaintiff, by virtue of the quick trial setting practices of ‘fast track’ courts, is placed in a position where she cannot reasonably comply with the narrow time limits set out in section 425.13, then surely the court must retain the inherent power and authority to make an appropriate order to avoid injustice or unfairness. Given the rationale of Looney and the recognition of Brown that a plaintiff cannot be allowed to suffer unfairly due to matters beyond his or her control, we have no trouble holding that the trial court has the power to make such orders as will reasonably avoid such a result, while at the same time remaining faithful to the underlying purposes of section 425.13

In the context of the factual circumstances presented by this case, we believe Pittman must be able to show, in order to be entitled to such relief, that (1) she was unaware of the facts or evidence necessary to make a proper motion under section 425.13 more than nine months prior to the first assigned trial date, (2) she made diligent, reasonable and good faith efforts to discover the necessary facts or evidence to support such a motion more than nine months prior to the first assigned trial date, (3) after assignment of the trial date she made reasonable, diligent and good faith efforts to complete the necessary discovery, (4) she filed her motion under section 425.13 as soon as reasonably practicable after completing such discovery (but in no event more than two years after the filing of her initial complaint) and (5) Goodstein will suffer no surprise or prejudice by reason of any shortened time period and will be given every reasonable opportunity to complete all necessary discovery in order to prepare to meet Pittman’s punitive damage allegations.”
((Id. at p. 1645.)

Plaintiff asserts that he has met the foregoing factors. Plaintiff’s counsel states that “Plaintiff filed his original complaint against [Defendants] in this case on February 22, 2022…In addition to the current claims of Negligence and Violations of Business & Professions Code Section 17200, the original complaint asserted a claim for Gross Negligence and a prayer for punitive damages against Defendants.” (Ganesan Decl., ¶ 5.) “The Defendants were served with the original complaint on April 6, 2022. Thereafter, Thomas Bradford, Defendants’ counsel, sent [Plaintiff’s counsel] a ‘meet and confer’ email stating, among other things, that Plaintiff’s punitive damages claim was barred under California Civil Code Section 425.13.” (Ganesan Decl., ¶ 6.)

Plaintiff’s counsel states that “[a]fter reading the statute, I realized that Plaintiff’s allegations of active concealment needed to be substantiated by evidence and testimony, including Dr. Emel’s testimony. Accordingly, on May 26, 2022, Plaintiff filed its FAC, dropping the Gross Negligence claim and the prayer for punitive damages.” (Ganesan Decl., ¶ 7.) Plaintiff’s counsel states that “[o]n August 11, 2022, Plaintiff served Requests of Production of Documents, Request for Admissions, Special Interrogatories, and Form Interrogatories on each of the Defendants. Among the Requests for Production was Plaintiff’s electronic medical records, including all metadata. After several extension requests, on October 5, 2022, Defendants served their discovery responses, and produced Plaintiff’s medical records in pdf format.” (Ganesan Decl., ¶ 8.)

Plaintiff’s counsel further states that on October 19, 2023, he took Emel’s deposition. (Ganesan Decl., ¶ 20.) Plaintiff’s counsel states that “[n]o discovery that SCPMG produced or provided before Dr. Emel’s deposition on October 19, 2023 revealed (1) Dr. Emel’s knowledge of the importance of early detection and treatment of scoliosis; (2) Dr. Emel’s knowledge that scoliosis cannot be caused by hunching over when using a cell phone, or treated by holding up a cell-phone; (3) how after-visit summaries are directly connected with the diagnoses entered by a physician in a medical chart; and (4) Dr. Emel’s inability to recall whether he told Plaintiff and Ms. Bhimani about Plaintiff’s scoliosis diagnosis.” (Ganesan Decl., ¶ 12.)

Plaintiff’s counsel further asserts that “Plaintiff did not take Dr. Emel’s deposition earlier than October 19, 2023 due to several factors. First, although the parties met and conferred and then sought an IDC with the Court in October 2022 concerning Defendants refusal to provide documents and information in response to Plaintiff’s discovery requests, the earliest available date with Department 32 for an IDC was March 17, 2023, 5 months later. Further, on the eve before the IDC, the case was transferred to the current department, and the IDC rescheduled for June 27, 2023, two months before the then-trial date.” (Ganesan Decl., ¶ 13.) Plaintiff’s counsel also states that “Mr. Bradford made it clear to me that he will only allow Dr. Emel to sit for a deposition one time, to be completed in seven hours. This meant that Plaintiff would need to have all the documents in hand that he would want to inquire of Dr. Emel, or else face the additional cost of filing a motion to compel a second deposition of Dr. Emel. This forced Plaintiff into a position where he needed to wait to receive all the requested documents in his possession before taking Dr. Emel’s deposition.” (Ganesan Decl., ¶ 15.)

Plaintiff’s counsel further states in his declaration that “[o]nce Plaintiff learned on August 28 that Defendants will not meet their discovery obligations despite the IDC, a week later I noticed the deposition for Dr. Emel for September 13. Mr. Bradford’s office informed me one business day before the deposition that Dr. Emel would only be available on October 10 or 19. I agreed to October 19, since I would only be returning from vacation on October 16. The deposition took place on that date and Plaintiff’s Motion for Leave to Amend was filed five (5) days later.” (Ganesan Decl., ¶ 16.)

In the opposition, Defendants assert that “Plaintiff’s justifications as to why the motion was not timely filed lacks merit.” (Opp’n at p. 9:6.) Defendants’ counsel states that “[o]n October 5, 2022, SCPMG served its responses to Plaintiff’s first set of Request for Production of Documents and produced as Exhibit A Plaintiff’s medical records from SCPMG.” (Bradford Decl., ¶ 6.) Defendants assert that “Plaintiffs motion heavily relies on the medical records to establish possible concealment, and the records were available for over a year, thus the records could not justify the untimely filing.” (Opp’n at p. 9:22-23.)

In addition, Defendants assert that “Plaintiff argues that Dr. Emel’s deposition could not have been noticed sooner because of the discovery disputes. However, Plaintiff’s Motion to Compel further discovery responses against both Defendants is set to be heard on November 3, 2023, and Dr. Emel’s deposition was taken on October 19, 2023, whilst the discovery disputes were pending…Therefore, there is no logic to the proposition that Plaintiff was waiting for the discovery disputes to be resolved before he could notice the deposition of Dr. Emel.” (Opp’n at p. 10:5-9.)

In the reply, Plaintiff counters that “Defendants do not deny that Thomas Bradford, Defendants’ counsel, informed Sridavi Ganesan, Plaintiff’s counsel, that he would not allow Dr. Emel to sit for his deposition more than once, which would require Plaintiff to expend attorney fees to move to compel his deposition if Defendants subsequently produced documents/further discovery responses. Therefore, Plaintiff was forced to wait until at least after the IDC to see if Defendants would produce the documents and serve supplemental responses before scheduling Dr. Emel’s deposition to inquire with him about those documents.” (Reply at p. 8:13-19.) In his declaration in support of the motion, Plaintiff’s counsel states that “after the June 27 IDC, and despite repeated follow-up emails to Mr. Bradford, Mr. Bradford only informed me from August 22 to 28, 2023 – 2 months after the IDC – that Plaintiff will not supplement their responses or provide any further production that Plaintiff wanted before taking Dr. Emel’s deposition, such as Dr. Emel’s personnel files and SCPMG’s guidelines for when diagnostic tests such as X-Rays or MRIs are recommended.” (Ganesan Decl., ¶ 13.) Plaintiff’s counsel states that “[o]nce Plaintiff learned on August 28 that Defendants will not meet their discovery obligations despite the IDC, a week later I noticed the deposition for Dr. Emel for September 13. Mr. Bradford’s office informed me one business day before the deposition that Dr. Emel would only be available on October 10 or 19. I agreed to October 19, since I would only be returning from vacation on October 16. The deposition took place on that date and Plaintiff’s Motion for Leave to Amend was filed five (5) days later.” (Ganesan Decl., ¶ 16.)

In the opposition, Defendants also assert that they were “not on notice of the claim for punitive damages.” (Opp’n at p. 10:18.) But Defendants acknowledge that Plaintiff’s initial Complaint included a claim for punitive damages. (Opp’n at p. 10:19-21.) In addition, as set forth above, Plaintiff’s counsel states that “[t]he Defendants were served with the original complaint on April 6, 2022. Thereafter, Thomas Bradford, Defendants’ counsel, sent [Plaintiff’s counsel] a ‘meet and confer’ email stating, among other things, that Plaintiff’s punitive damages claim was barred under California Civil Code Section 425.13.” (Ganesan Decl., ¶ 6.)

Plaintiff’s counsel also states that “[o]n March 2, 2023, I caused Plaintiff’s IDC statement to be filed with the Court. In that statement, I expressed Plaintiff’s intent to file a motion for punitive damages.” (See Ganesan Decl., ¶ 9, Ex. F, p. 2, “Plaintiff intends to bring a motion to amend complaint to include a prayer for punitive damages.”) In the opposition, Defendants assert that “Plaintiff also claims that Defendants were on notice because Plaintiff’s Informal Discovery Conference statement referenced the potential claim for punitive damages…However, adding a sentence alluding to potentially bringing forth a prayer for punitive damages is insufficient and does not provide sufficient notice to Defendants.” (Opp’n at pp. 10:27-11:2.) But Defendants do not cite any legal authority in support of this proposition or explain why they were not aware of Plaintiff’s potential claim for punitive damages as a result of Plaintiff’s IDC Statement.

Defendants also argue that they will be prejudiced if Plaintiffs motion is granted. Defendants assert that “Plaintiff filed the motion untimely despite having access to the medical records that formed the basis for this motion. Moreover, Plaintiff could have deposed Dr. Emel at any time but did not do so until October 19, 2023. Lastly, Plaintiff claims that the delay is caused by ongoing discovery disputes, whilst knowing that these disputes are still pending. This is an inexcusable delay and will prejudice the Defendant, thus the motion should be denied.” (Opp’n at p. 14:28-5:4.) But as noted by Plaintiff, Defendants do not explain how they would purportedly be prejudiced if the motion is granted.

Plaintiff asserts that he presents sufficient evidence warranting the imposition of punitive damages against Defendants. As discussed, “[t]he court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code.” ((Code Civ. Proc., § 425.13, subd. (a).)

Civil Code section 3294, subdivision (a) provides that “[i]n an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”

As used in Civil Code section 3294, “malice” means “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1).) In addition, as used in Civil Code section 3294, “oppression” means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code, § 3294, subd. (c)(2).)

Plaintiff asserts that “[t]his Motion is being brought on the grounds that during the course of discovery, Plaintiff – Defendants’ medical patient – learned that Defendants acted with conscious disregard of Plaintiff’s safety and well-being, amounting to malice and oppression as defined in Civil Code section 3294.” (Mot. at p. 1:15-17.)

“Petitioners, in effect, argue that section 425.13 is unconstitutional because the substantial probability of success standard which it imposes upon them requires the demonstration of a winning case. While that may be one reasonable construction of the statutory language, it is not the only one. Section 425.13 may also be reasonably construed to require only that a plaintiff demonstrate the existence of sufficient evidence to establish a prima facie case for punitive damages, having in mind the higher clear and convincing standard of proof. In discharge of our obligation to adopt that construction which is consistent rather than inconsistent with constitutionality, we believe the latter interpretation is the proper one.

We therefore conclude that, in the words of the Hung court, it is only necessary that plaintiff provide ‘a sufficient prima facie showing of facts to sustain a favorable decision if the evidence submitted by the [plaintiff] is credited.’ ( Hung v. Wang, supra, 8 Cal.App.4th at p. 931.) The trial court is not required to make any factual determination or to become involved in any weighing process beyond that necessarily involved in deciding whether a prima facie case for punitive damages exists. Once the court concludes that such a case can be presented at trial it must permit the proposed amended pleading to be filed. If it concludes that no such case exists, then it properly rejects the proposed pleading amendment. In making this judgment, the trial court’s consideration of the defendant’s opposing affidavits does not permit a weighing of them against the plaintiff’s supporting evidence, but only a determination that they do or do not, as a matter of law, defeat that evidence.” (Emphasis omitted.)

In the motion, Plaintiff first asserts that Emel “actively concealed the diagnosis of lumbar scoliosis from Plaintiff and his mother.” (Mot. at p. 9:13-14.) Plaintiff’s counsel attaches as “Exhibit E” to his declaration “copies of relevant pages from the Medical Records produced by Defendants.” (Ganesan Decl., ¶ 8, Ex. E.) Plaintiff’s Exhibit E references as “Diagnosis #9” “SCOLIOSIS” next to “Yes,” the date “03/08/2021,” and the time “1326.” (Ganesan Decl., ¶ 8, Ex. E, p. 159.) In addition, under the term “ASSESSMENT,” on Plaintiff’s Exhibit E, several items are listed, including “LUMBAR SCOLIOSIS - appears mild [EE.5M].” (Ganesan Decl., ¶ 8, Ex. E, p. 164.)

Plaintiff’s guardian ad litem, Arti L. Bhimani, states in her supporting declaration that “[o]n March 8, 2021, I accompanied my son, Devin, to an annual wellness visit with pediatrician Dr. Enrique Earle Emel (‘Dr. Emel’).” (Bhimani Decl., ¶ 2.) Ms. Bhimani states that “[a]t no point in time did Dr. Emel ever inform me during the March 8, 2021 visit or anytime prior to July 14, 2021 that Devin suffered from lumbar scoliosis, or any form of scoliosis.” (Bhimani Decl., ¶ 8.) Ms. Bhimani contends in her declaration that “Dr. Emel actively misled me about Devin’s diagnosis. Not only did Dr. Emel not inform me or Devin that Devin had scoliosis, Dr. Emel filled out Devin’s Preparticipation Physical Evaluation, which was required for Devin to participate in sports, and indicated within the evaluation that Devin’s Back was ‘NORMAL’. This was in addition to telling us that the posture issues I raised were due to Devin’s cell phone use.” (Bhimani Decl., ¶ 9.) Plaintiff’s counsel also states that “a review of the Medical Records do not show that Dr. Emel ever contacted Plaintiff or his parents to inform them of his diagnosis of Plaintiff’s scoliosis between March 8, 2021 and July 14, 2021.” (Ganesan Decl., ¶ 18.)

Plaintiff also asserts that “Dr. Emel failed to tell Devin’s father, Michel Estime, on July 14, 2021 when Devin’s father raised a concern about Devin’s back that Devin had previously been diagnosed with scoliosis. Instead, he told Devin’s father that he needed to ‘rule out’ scoliosis, in an effort to conceal the fact that he had in fact diagnosed Devin with scoliosis four months prior.” (Mot. at p. 2:15-18.) Plaintiff notes that the subject medical records show that on July 14, 2021, Plaintiff’s father sent a message to Emel stating, “I recently looked at Devin’s back and am concerned about whether he has scoliosis and whether we need to do anything to try to correct it as he is growing. Wondering if you looked at this at his last physical or whether I should make another appointment for him concerning it.” (Ganesan Decl., ¶ 8, Ex. E, p. 253.) Plaintiff notes that the medical records contain notes dated July 19, 2021, providing, inter alia, “PERSON W FEARED COMPLAINT, NO DIAGNOSIS MADE Note: rule out[EE.1T] Scoliosis[EE.1M].” (Ganesan Decl., ¶ 8, Ex. E, p. 262.)[1]

In addition, Plaintiff asserts that “the concealment is evident from the fact that Dr. Emel delayed entering ‘scoliosis’ amongst the ‘DIAGNOSIS’ and ‘ASSESSMENT’ entries until after Plaintiff and Ms. Bhimani left the March 8, 2021 appointment.” (Mot. at p. 10:10-12.) Ms. Bhimani states that “Devin’s entire wellness appointment took a little less than one hour. My appointment time was 11:00 a.m., and we left the appointment around 12:00 p.m.” (Ganesan Decl., ¶ 7.)

As set forth above, Plaintiff’s Exhibit E references as “Diagnosis #9” “SCOLIOSIS” next to “Yes,” the date “03/08/2021,” and the time “1326.” (Ganesan Decl., ¶ 8, Ex. E, p. 159.) In addition, under the term “ASSESSMENT,” on Plaintiff’s Exhibit E, several items are listed, including “LUMBAR SCOLIOSIS - appears mild [EE.5M].” (Ganesan Decl., ¶ 8, Ex. E, p. 164.) Plaintiff asserts that the “Attribution Key” found on page 165 of the medical records show that the “LUMBAR SCOLIOSIS” entry was made at about 1:23 p.m. (Mot. at p. 4:15-16.) The “Attribution Key” references “EE.5 - Emel, Erique Earle (M.D.), M.D. on 3/8/2021 1:23 PM.” (Ganesan Decl., ¶ 8, Ex. E, p. 165.)

Plaintiff asserts that the other diagnoses and assessments were “made at or around the time of Plaintiff’s appointment, between 11am and noon.” (Mot. at p. 4:18-19, citing Ganesan Decl., ¶ 8, Ex. E, pp. 159, 164, 165.) Certain other diagnoses listed on pages 158-159 of Plaintiff’s Exhibit E appear to be made between the times of “1158” and “1213.” (Ganesan Decl., ¶ 8, Ex. E, pp. 158-159.) In addition, the other items listed under the “Attribution Key” on page 165 of Exhibit E lists times between “11:25 AM” and “12:12 PM” before the above-referenced entry for “EE.5” at “1:23 PM.” (Id. at p. 165.)

In the opposition, Defendants assert that “Plaintiff failed to prove the theory of active concealment.” (Opp’n at p. 12:1.) Defendants assert that “Dr. Emel testified that in general, he strives to finish the medical records during the appointment; however, sometimes he finishes the note after the patient leaves.” (Opp’n at p. 12:12-13.) Defendants cite the following testimony from Emel’s deposition: “Q…Is it your practice to update the patient’s medical record close to the time -- close in time to the patient’s actual visit? A. What do you mean ‘update’? Q. Enter information on the patient’s medical records. A. You mean document on the medical record? Q. Correct. A. Usually it’s the same day. Q. Do you do it in real time? A. Yes. Q. Meaning while the patient’s there, are you also entering information in the medical records? A. Yes.” (Bradford Decl., ¶ 15, Ex. I (Emel Depo.) at p. 126:1-17.) Defendants also cite the following testimony from Emel’s deposition: “Q. Okay. So is there any circumstance when you have information that you’re inputting into the medical record, but you do it not at the time when the patient’s there but after the patient has left? A. You mean do I write in the chart after the patient has left? Q Yes. A. Yes. Q. What are those circumstances when you would do that? A. It varies clinically.” (Id. at p. 127:14-25.)

Defendants also cite the following testimony from Emel’s deposition: “Q. Okay. Do you recall whether you informed Devin and his mother of your assessment? A. Q. I don’t recall. Q. Do you recall whether you provided any information or an after-care summary about the condition that you had assessed? A. I don’t recall, but that’s my general practice.” (Bradford Decl., ¶ 15, Ex. I (Emel Depo.) at p. 135:7-15.) Defendants thus do not appear to dispute Ms. Bhimani’s statement that “[a]t no point in time did Dr. Emel ever inform me during the March 8, 2021 visit or anytime prior to July 14, 2021 that Devin suffered from lumbar scoliosis, or any form of scoliosis.” (Bhimani Decl., ¶ 8.)

Plaintiff also asserts in the motion that “Dr. Emel acted with wanton disregard for Devin’s health and safety because he knew that early detection and treatment of scoliosis was important to prevent the progression of a scoliosis curve, and despite that knowledge, actively hid from Devin and his family Devin’s diagnosis, thereby depriving Devin of more conservative treatment options that would have been available to Devin at that time.” (Mot. at p. 12:13-17.)

Plaintiff cites to the following testimony from Emel’s deposition: “Q. Okay. But otherwise your testimony is that early detection and treatment in an adolescent is important to prevent it from getting worse? A. It is important to observe it, yes. Q. To prevent it from getting worse? A. As far as it getting worse, it depends on the type of person. It depends on their particular condition whether it’s going to get worse or not. Not all scoliosis get worse.” (Ganesan Decl., ¶ 20, Ex. J (Emel Depo.) at p. 94:12-21.)

In addition, as set forth above, under the term “ASSESSMENT,” on Plaintiff’s Exhibit E, several items are listed, including “LUMBAR SCOLIOSIS - appears mild [EE.5M].” (Ganesan Decl., ¶ 8, Ex. E, p. 164.) Plaintiff asserts that “Mr. Emel told Plaintiff and Ms. Bhimani that Devin’s posture issue that was raised as a concern by Ms. Bhimani was caused by Devin hunching over when using his cell phone, even though he knew that scoliosis cannot be caused that way, and cannot be corrected by holding up one’s phone.” (Mot. at pp. 11:27-12:3.)

In her declaration, Ms. Bhimani states, “[a]fter examining Devin, Dr. Emel told me that Devin’s ‘hunch’ was likely due to his bending over to view his cellphone…” (Bhimani Decl., ¶ 5.) Plaintiff also cites to Emel’s responses to Plaintiff’s Request for Admissions, Set One. (Ganesan Decl., ¶ 19, Ex. I.) Plaintiff’s Request No. 13 states, “Admit that YOU told PLAINTIFF’s mother on March 8, 2021 that the concerns she raised with respect to PLAINTIFF’s posture were due to his cell phone usage.” (Ganesan Decl., ¶ 19, Ex. I, p. 5.) Emel’s response to Request No. 13 states that “Admit that in addition to advising PLAINTIFF’s mother that PLAINTIFF had mild scoliosis, she was advised that PLAINTIFF’S cell phone usage can impact posture.” (Ibid.) Plaintiff also cites to the following testimony from Emel’s deposition: “Q. Based on your training, can idiopathic adolescent scoliosis be caused by hunching when one is using their phone? A. Not that I’m aware of. Q. Okay. Based on your training and medical school education, can idiopathic adolescent scoliosis be treated by holding up one’s phone when using it? A. Not that I’m aware of.” (Ganesan Decl., ¶ 20, Ex. J (Emel Depo.) at p. 106:1-9.)

Plaintiff also asserts that “despite knowing that early detection is necessary to treat scoliosis, rather than inform Plaintiff to monitor Devin’s curve and if it worsens, Dr. Emel only provided ‘reassurance’ and told Plaintiff to return after two years for his wellness visit.” (Mot. at p. 12:4-6.) In Plaintiff’s Exhibit E, under “LUMBAR SCOLIOSIS - appears mild[EE.5M],” the document states “Plan: -reassurance.[EE.5T].” (Ganesan Decl., ¶ 8, Ex. E, p. 164.) Exhibit E also states “Return to clinic for check-up in 2 year(s).” (Id. at p. 165.)

Plaintiff submits the Declaration of Dr. Zacharia Reda, a medical doctor that is board certified in pediatrics, critical care, and hospital medicine. (Reda Decl., ¶ 1.) Dr. Reda states that “[t]he medical records make clear that Dr. Emel was aware that Devin was suffering from lumbar scoliosis and yet the medical records do not provide any evidence that Dr. Emel did anything to assess the degree of Devin’s curvature or address Devin’s scoliosis - not even informing the patient of the diagnosis or observed curvature. There is no justification that can be provided for failing to inform the patient of a diagnosis known by the doctor, particularly where, as here, the diagnosis concerns an issue specifically raised by the patient’s parent during the wellness visit. Here, contrary to Dr. Emel’s obligation to provide the patient with known information about a diagnosis, Dr. Emel appears to have misinformed Devin and his mother that the cause of Devin’s ‘hunch’ was the use of his cell phone in a misguided attempt to reassure Devin and his mother that there was no cause for concern.” (Reda Decl., ¶ 11.)

Dr. Reda also states that “[a] pediatrician that notices a curvature of the spine during an annual visit of an adolescent should at the very least inform the patient of the curvature and seek to monitor the progression of the curve. Informing the patient to return in two years is not consistent with the recommended course of treatment.” (Reda Decl., ¶ 13.) In addition, Dr. Reda states that “[a] pediatrician that notices a curve in adolescents should take steps to address the curve given that an adolescent’s growth spurt could exacerbate the curve, and that may lead to adverse health consequences and deformity if left untreated. There are treatment options that are available for scoliosis that has not yet reached the surgical range, including physical therapy and bracing, that can be explored. A pediatrician can refer a patient to a specialist who can provide treatment options for scoliosis to prevent or slow down the progression of an adolescent’s curve during their prime growth period.” (Reda Decl., ¶ 14.)

In the opposition, Defendants cite the following testimony from Emel’s deposition: “Q. Yes. So for lumbar scoliosis you think that it’s appropriate for the next time that the patient to come in would be in two years? A. No. What you’re showing there is just for a general physical exam.” (Bradford Decl., ¶ 15, Ex. I (Emel Depo.) at p. 187:13-18.) Defendants assert that there is not “clear and convincing evidence that Dr. Emel acted with wanton disregard for the well-being of Plaintiff, at most it is a standard of care violation.” (Opp’n at p. 13:25-27.)

However, based on a consideration of the foregoing, the Court finds that Plaintiff “has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code.” ((Code Civ. Proc., § 425.13, subd. (a).)

Based on the foregoing, Plaintiff’s motion for leave to amend is granted. The Court orders Plaintiff to file and serve the proposed Second Amended Complaint within 3 days of the date of this Order.¿

[1]Plaintiff asserts that “[t]here is no reason for why he would tell Devin’s father that he needs to rule out ‘scoliosis’ as a diagnosis, if he had already diagnosed Devin with scoliosis on March 8, 2021. In reality, the only reasonable explanation is that Dr. Emel had never told Devin or anyone in his family that Devin had scoliosis and, therefore, did not tell Devin’s father that he had previously diagnosed Devin with scoliosis – the very thing that Devin’s father expressed concern about.” (Reply at p. 4:21-25.)

Superior Court of California

County of Los Angeles

Department 50

In the FAC, Plaintiff alleges that he “entrusted DEFENDANTS to care for him. DEFENDANTS failed its duty to [Plaintiff]. DEFENDANTS failed to adhere to standard protocols for the diagnosis and treatment of [Plaintiff’s] scoliosis, thereby forcing [Plaintiff] to take the drastic measure of undergoing immediate and very painful spinal surgery. As a result of DEFENDANTS’ negligence, [Plaintiff] endured pain and suffering and must contend with lifelong complications concerning his spine. DEFENDANTS’ failure to diagnose [Plaintiff] is due to its unlawful and unfair business practice that rewards doctors that do not refer patients to specialist and for additional extensive tests, such as x-rays, MRIs, and CT-Scans.” (FAC, ¶ 1.)

Plaintiff now moves for an order compelling SCPMG to serve further responses and produce documents responsive to Plaintiff’s Requests for Production of Documents, Set One, Nos. 2, 19, 20, 21, 41, and 42, and for an order compelling SCPMG to comply with its response to Request for Production No. 6 and its response to Amended Request for Production No. 39. SCPMG opposes.

Plaintiff also moves for an order compelling Emel to produce all documents responsive to Plaintiff’s Requests for Production of Documents, Set One, Numbers 18 and 19, and to produce complete responses to Plaintiff’s Special Interrogatories, Set One, Numbers 28 and 31. Emel opposes.

The Court denies Plaintiff’s request for judicial notice file in support of Plaintiff’s reply to SCPMG’s opposition to Plaintiff’s motion to compel. The Court notes that “¿[t]he general rule of motion practice…is that new evidence is not permitted with reply papers.¿” (¿Jay v. Mahaffey¿(2013) 218 Cal.App.4th 1522, 1537¿.)

Code of Civil Procedure section 2031.310, subdivision (a) permits a propounding party to move for an order compelling a further response to a demand for inspection if the propounding party deems that a statement of compliance is incomplete, a representation of inability to comply is inadequate, incomplete, or evasive, or an objection is without merit or too general. ((Id., § 2031.310, subd. (a).) A motion to compel further responses to a demand for inspection must set forth specific facts showing good cause for the discovery sought and must be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2031.310, subd. (b).)

If the court finds that a party has unsuccessfully made or opposed such a motion, the court “shall impose a monetary sanction . . . 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.” (Code Civ. Proc., § 2031.310, subd. (h).)

In addition, pursuant to Code of Civil Procedure section 2031.320, subdivision (a), “[i]f a party filing a response to a demand for inspection, copying, testing, or sampling under Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280 thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance.” Under Code of Civil Procedure section 2031.320, subdivision (b), “[e]xcept as provided in subdivision (d), the court shall impose a monetary sanction…against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand, 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.”

On August 11, 2022, Plaintiff served Requests for Production of Documents, Set One, on SCPMG. (Ganesan Decl., ¶ 3, Ex. A.) On October 5, 2022, SCPMG served its Responses to Plaintiff’s Requests for Production, Set One. (Ganesan Decl., ¶ 6, Ex. C.) On August 31, 2023, SCPMG served its Supplemental Responses to Plaintiff’s Requests for Production, Set One. (Ganesan Decl., ¶ 10, Ex. G.)

Plaintiff’s counsel states that “[o]n July 11, 2023, [he] sent an email to Thomas Bradford, counsel for SCPMG, providing the Amended Request for Production of Documents, No. 39, pursuant to the agreement that was made between counsel and the Court at the informal discovery conference (‘IDC’) held on June 27 and 28, 2023.” (Ganesan Decl., ¶ 8, Ex. E.) On August 17, 2023, SCPMG served its Response to Plaintiff’s Amended Request for Production Number 39. (Ganesan Decl., ¶ 9, Ex. F.)

Plaintiff’s counsel states that “[o]n June 27 and 28, 2023, Mr. Bradford and I participated in an IDC with the Court regarding Defendants’ insufficient responses to Plaintiff’s discovery.” (Ganesan Decl., ¶ 23.) The Court’s June 28, 2023 minute order provides, inter alia, that “[t]he parties participated in an Informal Discovery Conference re: the issues set forth in their IDC Statements. The parties agreed to further discuss the issues and approaches identified at the IDC in a telephone conference on June 29, 2023 at 2:00p.m. which will be initiated by Mr. Braddford. [sic] The parties will agree to any hearing extensions for motions regarding unresolved issues, if any.”

Plaintiff’s counsel states that “on August 16 and 22, 2022, Mr. Bradford began to inform me of what responses Defendants will and will not supplement. Among the documents Defendants refused to produce were those sought by Requests for Production Nos. 2, 19, 20, 21, 41, and 42…The parties…conferred further via email through August 28, 2023.” (Ganesan Decl., ¶ 26.) Plaintiff’s counsel further states that “SCPMG has stated that is [sic] will produce documents responsive to Amended Requests for Production No. 39, but to date has not done so.” (Ganesan Decl., ¶ 19.)

As set forth above, Plaintiff moves “for an order compelling [SCPMG] to serve further responses and produce documents responsive to Plaintiff’s Requests for Production of Documents, Set One, Nos. 2, 19, 20, 21, 41, and 42, and for an order compelling SCPMG to comply with its response to Request for Production No. 6 and its response to Amended Request for Production No. 39.”

Plaintiff’s Request No. 2 seeks “All DOCUMENTS which YOU identified in YOUR answers to PLAINTIFF’s Special Interrogatories, Set One.” (Ganesan Decl., ¶ 3, Ex. A.) In its response to Request No. 2, SCPMG states, “[s]ubject to and without waiving said objections, patient records coming two formats. The most recent records are maintained in the Kaiser Permanente HealthConnect electronic medical record. A complete copy of the PLAINTIFF’S medical records are herein sent electronically (Exhibit A). Prior to the implementation of the Kaiser Permanente HealthConnect, medical records were maintained in paper charts. Copies of the paper medical records may be obtained at the compounding parties expense from Ronson Photocopy Inc. (909) 594-5995, or through the propounding parties own copy service. Defendant objects to the production of Dr. Emel’s personnel and payroll records on privacy grounds and Dr. Emel’s objection to the production of same.” (Ganesan Decl., ¶ 6, Ex. C.)

Plaintiff’s Request No. 41 seeks “All DOCUMENTS that REFLECT position(s) held by EMEL for each year EMEL worked for YOU, including as a PRIMARY CARE PROVIDER and as one of YOUR shareholders.” (Ganesan Decl., ¶ 3, Ex. A.) Plaintiff’s Request No. 42 seeks “All DOCUMENTS that REFLECT any compensation EMEL received from YOU for each year EMEL worked for YOU, including but not limited to any income, bonuses, dividends, shareholder income, and payment for satisfying FINANCIAL INCENTIVEs, but excluding reimbursement of expenses.” (Ibid.) In its responses to Requests No. 41 and 42, SCPMG states, inter alia, “[o]bjection as vague, ambiguous, overbroad, burdensome, harassing, not reasonably calculated to lead to the discovery of admissible evidence, and violative of EMEL’s privacy rights.” (Ganesan Decl., ¶ 6, Ex. C.)

In the motion, Plaintiff asserts that “[a] party’s confidentiality is not a valid objection—the proper procedure is to address privacy concerns is a protective order.” (Mot. at p. 7:13-14.) In support of this assertion, Plaintiff cites to Columbia Broadcasting System, Inc. v. Superior Court of Los Angeles County (1968) 263 Cal.App.2d 12, 23, where the Court of Appeal noted that “Defendants further object to this interrogatory on the ground that it calls for ‘confidential information.’ We know of no case holding that this is a proper ground for objection to an otherwise proper interrogatory. Assuming that the information called for by this interrogatory is of a confidential nature which defendants do not want to have included in a public record, they presumably could have applied for a protective order under section 2019, subdivision (b) of the Code of Civil Procedure. No such application was made.”

But SCPMG objected to Requests Nos. 2, 41, and 42 on, inter alia, privacy grounds, not on the grounds of “confidentiality.” In the opposition, SCPMG asserts that “Dr. Emel has a right to privacy as it relates to his compensation and personnel file.” (Opp’n at p. 13:7-8.)

SCPMG cites to Valley Bank of Nev. v. Superior Court (1975) 15 Cal.3d 652, 656, where the California Supreme Court noted that “[a] constitutional amendment adopted in 1974 elevated the right of privacy to an ‘inalienable right’ expressly protected by force of constitutional mandate. ((Cal. Const., art. I, § 1.) Although the amendment is new and its scope as yet is neither carefully defined nor analyzed by the courts, we may safely assume that the right of privacy extends to one’s confidential financial affairs as well as to the details of one’s personal life.” Emel further cites to Alch v. Superior Court (2008) 165 Cal. App. 4th 1412, 1423-1424, where the Court of Appeal noted that “if the three criteria for invasion of a privacy interest exist—a legally protected privacy interest, a reasonable expectation of privacy under the particular circumstances, and a serious invasion of the interest—then the privacy interest must be measured against other competing or countervailing interests in a balancing test.” (Internal quotations omitted.)

SCPMG asserts that “Plaintiff failed to demonstrate a compelling need for this information…” (Opp’n at p. 11:18-19.) SCPMG asserts that “it remains unclear how Dr. Emel’s compensation will help establish the Unfair Business Practices claims against SCPMG. On the other hand, Dr. Emel has a right to privacy as it relates to his compensation and personnel file.” (Opp’n at p. 13:6-8.) In the motion, Plaintiff argues that “the information sought is relevant in that would make it more or less likely that Plaintiff can establish his allegations that Dr. Emel received incentives or other benefits/rewards from SCPMG for delaying diagnostic testing and avoiding referring his patients to specialists.” (Mot. at p. 7:26-8:1.)

The Court notes that in the second cause of action for unfair business practices, Plaintiff alleges that “KAISER has a policy of financially rewarding its doctors who avoid ordering expensive tests such as MRIs, X-rays, and CT scans…or treatment options such as extensive physical therapy sessions…and who avoid referrals to specialists…when treating member patients (‘the Policy).” (FAC, ¶ 47.) Plaintiff alleges that “EMEL as a doctor at KAISER, was persuaded by the Policy to avoid informing [Plaintiff] and ARTI that he noticed [Plaintiff] showing signs of lumbar scoliosis on March 8, 2021, because he knew that based on her vigilant interest in her son’s health, ARTI would have demanded an X-Ray at least to verify that diagnosis and that at a minimum physical therapy treatment may be recommended. If EMEL ordered the X-Ray, recommended physical therapy, or referred [Plaintiff] to a specialist, his financial reward under the Policy would have been diminished.” (FAC, ¶ 50.)

But Plaintiff’s discovery requests at issue do not specifically seek information regarding any financial rewards Emel purportedly received under the alleged Policy. Rather, as set forth above, Plaintiff’s Request No. 41 seeks “All DOCUMENTS that REFLECT position(s) held by EMEL for each year EMEL worked for YOU, including as a PRIMARY CARE PROVIDER and as one of YOUR shareholders.” (Ganesan Decl., ¶ 3, Ex. A.) In addition, Plaintiff’s Request No. 42 broadly seeks “All DOCUMENTS that REFLECT any compensation EMEL received from YOU for each year EMEL worked for YOU, including but not limited to any income, bonuses, dividends, shareholder income, and payment for satisfying FINANCIAL INCENTIVEs, but excluding reimbursement of expenses.” (Ibid., emphasis added.)

The Court thus finds that there is merit to SCPMG’s objections on the basis of overbreadth, relevance, and privacy. Thus, the Court denies Plaintiff’s motion for an order compelling further responses to Requests Nos. 2, 41, and 42.

Plaintiff’s Request No. 19 seeks “[a]ll DOCUMENTS sufficient to show the number of MINORS diagnosed with scoliosis by doctors employed by YOU between January 1, 2015 and the present.” (Ganesan Decl., ¶ 3, Ex. A.) In its response to Request No. 19, SCPMG states that “Defendant objects to this request as vague, ambiguous, overbroad, and not reasonably calculated to lead to the discovery of admissible evidence. It is burdensome and harassing. Finally, it violates the privacy rights of third-party patients not subject to this litigation.” (See Ganesan Decl., ¶ 10, Ex. G.) In its supplemental response to Plaintiff’s Request No. 19, SCPMG states, “[t]he above objections are incorporated by reference. Defendant will not be providing supplemental response. As a courtesy and to substantiate the objections, the plaintiff is advised that in the year 2021 alone its physicians diagnosed 2,031 patients with scoliosis. The RFP seeks nearly 8 years of documents. Therefore, Defendant stands by its prior objections.” (Ibid.)

Plaintiff’s Request No. 20 seeks “[a]ll DOCUMENTS sufficient to show the number of MINORS diagnosed with scoliosis by doctors employed by YOU that were provided with a REFERRAL to see a SPECIALIST between January 1, 2015 and the present.” (Ganesan Decl., ¶ 3, Ex. A.) In its response to Request No. 20, SCPMG states, “Defendant objects to this request as vague, ambiguous, overbroad, and not reasonably calculated to lead to the discovery of admissible evidence. It is burdensome and harassing. Finally, it violates the privacy rights of third-party patients not subject to this litigation.” (Ganesan Decl., ¶ 10, Ex. G.) In its supplemental response to Plaintiff’s Request No. 20, SCPMG states, “[t]he above objections are incorporated by reference. Defendant will not be providing supplemental response. As a courtesy and to substantiate the objections, the plaintiff is advised that in the year 2021 alone its physicians diagnosed 2,031 patients with scoliosis. The RFP seeks nearly 8 years of documents. Therefore, Defendant stands by its prior objections.” (Ibid.)

Plaintiff’s Request No. 21 seeks “[a]ll DOCUMENTS sufficient to show the number of MINORS diagnosed with scoliosis by doctors employed by YOU for whom the doctors ordered x-ray of their spines between January 1, 2015 and the present.” In its response to Plaintiff’s Request No. 21, SCPMG states, “Defendant objects to this request as vague, ambiguous, overbroad, and not reasonably calculated to lead to the discovery of admissible evidence. It is burdensome and harassing. Finally, it violates the privacy rights of third-party patients not subject to this litigation.” (Ganesan Decl., ¶ 10, Ex. G.) In its supplemental response to Plaintiff’s Request No. 21, SCPMG states, “[t]he above objections are incorporated by reference. Defendant will not be providing supplemental response. As a courtesy and to substantiate the objections, the plaintiff is advised that in the year 2021 alone its physicians diagnosed 2,031 patients with scoliosis. The RFP seeks nearly 8 years of documents. Therefore, Defendant stands by its prior objections.” (Ibid)

Plaintiff’s counsel indicates that “[w]ith respect to Requests No. 19, 20, 21, [SCPMG’s counsel] said the only way to respond to these requests is to review each patient’s records, which would be a HIPPA violation. The parties continued conferred further via email through August 28, 2023.” (Ganesan Decl., ¶ 26.)

In the motion, Plaintiff argues that “SCPMG’s burden and the HIPPA objections ignores the fact that the documents requested can be obtained and produced simply by means of computer searches, without any review of individual patient files.” (Mot. at p. 10:15-18.) Plaintiff submits the declaration of Lee Neubecker, the “President and CEO of Enigma Forensics, Inc.” (Neubecker Decl., ¶ 3.) Mr. Neubecker states in his declaration that “Defendant has the ability to produce the documents requested in Plaintiff’s Requests for Production of Documents, Set One, Nos. 19 through 21 by performing computer searches in its EPIC medical records database, without review of individual patient records.” (Neubecker Decl., ¶ 12.) Mr. Neubecker further states that “[t]o produce the documents requested in Plaintiff’s Requests for Production of Documents, Set One, Nos. 19, Defendant can produce a report from its EPIC medical records database that lists all patients where ‘scoliosis’ was referenced in the patient’s Diagnosis section on or after 1/1/2015 (e.g. ‘Diagnosis: SCOLIOSIS Noted on: 03/08/2021 Chronic: Yes’).” (Neubecker Decl., ¶ 13.) Mr. Neubecker further asserts that “[i]n order to produce the documents requested in Requests 20 and 21, Defendant can include in the aforementioned report” certain specified fields. (Neubecker Decl., ¶ 14.)

In the opposition, Plaintiff submits the declaration of Nitin Dhamija, M.D. CPPS, CPHQ, who is employed by SCPMG and has “oversight of Kaiser Permanente’s Electronic Health Record (HealthConnect®) for 2 Southern California and Georgia Regions.” (Bradford Decl., ¶ 23, Ex. W; Dhamija Decl., ¶¶ 5-6.) In his declaration, Dr. Dhamija states that “[a]s a preliminary matter, when it comes to non-party data, there is no way to determine why certain tests/imaging studies have been ordered and specialty referrals made relative to a particular diagnosis without accessing each individual patient chart which SCPMG cannot do without the express written consent and authorization of each minor’s parent or guardian. Otherwise, this would be a clear violation of HIPAA.” (Dhamija Decl., ¶ 8.)[1] SCPMG cites to 45 C.F.R. § 164.508, which provides, inter alia, “[a]uthorization required: General rule. Except as otherwise permitted or required by this subchapter, a covered entity may not use or disclose protected health information without an authorization that is valid under this section. When a covered entity obtains or receives a valid authorization for its use or disclosure of protected health information, such use or disclosure must be consistent with such authorization.” (45 C.F.R. § 164.508, subd. (a)(1).)

Dr. Dhamija further states that “[a]lthough SCPMG is able to determine inclusion of a particular illness/diagnosis for each patient within a cohort of patient charts, it is not possible to confirm whether any particular test/imaging study was ordered for a particular purpose and if a specialty referral was made without an independent medical review by a qualified medical provider to verify accuracy and completion of the data. Even if this were not the case, a simple numerical assessment is meaningless. The medical reviewer would need to analyze the clinical correlation, if any, between the diagnosis, imaging study, and specialty referral which can only be done by an individual chart review for each patient...” (Dhamija Decl., ¶ 9.) SCPMG asserts that “[t]his would be a burdensome task for SCPMG, as it would require obtaining consent from thousands of patients, and then, it would require SCPMG to devote an exorbitant number of administrative, informatics, and medical professional staff to complete the task.” (Opp’n at p. 17:16-18.)

In the reply, Plaintiff argues that “SCPMG’s assertion of burden, that it would be required to review thousands of individual patients’ records, does not apply because the database queries requested do not require individual patient record review. Similarly, querying SCPMG’s EMR database does not reveal any patient-identifying information that would violate other patients’ confidentiality or would require HIPAA consent.” (Reply at p. 7:20-24.) But as discussed, SCPMG submits evidence that “when it comes to non-party data, there is no way to determine why certain tests/imaging studies have been ordered and specialty referrals made relative to a particular diagnosis without accessing each individual patient chart which SCPMG cannot do without the express written consent and authorization of each minor’s parent or guardian.” (Dhamija Decl., ¶ 8.)

Based on a consideration of the arguments and evidence presented by the parties, the Court finds that there is merit to SCPMG’s objections on the basis of overbreadth and privacy. Thus, the Court denies Plaintiff’s motion as to Requests Nos. 19, 20, and 21.

Plaintiff’s Request No. 6 seeks “PLAINTIFF’S MEDICAL RECORDS in electronic form, including all metadata.” (Ganesan Decl., ¶ 3, Ex. A.) SCPMG’s Response to Request No. 6 provides, “[s]ubject to and without waiving said objections, patient records coming [sic] two formats. The most recent records are maintained in the Kaiser Permanente HealthConnect electronic medical record. A complete copy of the PLAINTIFF'S medical records are herein sent electronically (Exhibit A). Prior to the implementation of the Kaiser Permanente HealthConnect, medical records were maintained in paper charts. Copies of the paper medical records may be obtained at the compounding parties expense from Ronson Photocopy Inc. (909) 594- 5995, or through the propounding parties own copy service.” (Ganesan Decl., ¶ 6, Ex. C.)

Plaintiff’s counsel states that “[o]n October 5, 2022, SCPMG produced Plaintiff’s Medical Records in pdf format. I immediately wrote to Mr. Bradford reminding him that all metadata was requested in electronic form, and requested for the audit trail related to the Medical Records.” (Ganesan Decl., ¶ 12.) Plaintiff’s counsel indicates that “[o]n October 11, 2022, Mr. Bradford forwarded me an audit trail, again in pdf format,” and that “[o]n December 16, 2022, Mr. Bradford forwarded me a revised Audit Trail, again in pdf format.” (Ganesan Decl., ¶¶ 13, 15.) Plaintiff’s counsel further states that “on January 11, 2023, Mr. Bradford’s associate, Jeanie Raphelt, emailed me a read-only version of a document purporting to be an audit trail, but this time in excel format. I reminded…Ms. Raphelt that we were still awaiting the medical records with the full metadata. Ms. Raphelt wrote to me stating ‘Per Kaiser, you have been provided the metadata through the audit trail and there is no other format in which the medical records can be produced.’” (Ganesan Decl., ¶ 16.)

Plaintiff’s expert, Mr. Neubecker, asserts that “[t]he medical records of Devin Estime produced by Defendant in this matter are incomplete because they are missing: a. data from some date ranges; b. certain file types; and c. some of the associated metadata that exists in Defendant’s medical records database.” (Neubecker Decl., ¶ 6; see also Neubecker Decl., ¶ 7.)

As an initial matter, SCPMG’s counsel states that “[o]n June 27, 2023, and June 28, 2023, this Court held an Informal Discovery Conference with regard to SCPMG’s and Defendant, Dr. Erique Earle Emel’s, discovery responses. Plaintiff never raised an issue with Defendants’ responses to her request for medical records or meta-data with the Court as part of her Informal Discovery Conference (IDC).” (Bradford Decl., ¶ 12, Exs. M-N.) In the reply, Plaintiff acknowledges that “[a]lthough SCPMG is technically correct that the incomplete audit trail regarding Plaintiff’s medical records was not discussed at the parties’ Informal Discovery Conference (‘IDC’), that was only because Plaintiff only learned of the incompleteness subsequent to the IDC.” (Reply at p. 4, fn. 1.) Thus, pursuant to the Court’s power to “amend and control its process and orders so as to make them conform to law and justice” (Code Civ. Proc., § 128(a)(8)), the Court finds that a further IDC on this issue is necessary.

Plaintiff’s Amended Request No. 39 seeks “[a]ll DOCUMENTS reflecting any guidelines, instructions, and/or policies enacted by YOU between January 1, 2015 and the present as to when and/or under what circumstance(s) diagnostic tests including, but not limited to, X-rays, MRIs, and CT-Scans, may be ordered by YOUR PRIMARY CARE PROVIDERS for YOUR members[.]” (Ganesan Decl., ¶ 8, Ex. E.) SCPMG’s response to Amended Request No. 39 states, “Defendant will comply with this request and will produce documents it can identify and locate that are responsive to this request. Discovery is ongoing and Defendant reserves the right to supplement the response.” (Ganesan Decl., ¶ 9, Ex. F.) Plaintiff’s counsel states that “SCPMG has stated that is will produce documents responsive to Amended Requests for Production No. 39, but to date has not done so.” (Ganesan Decl., ¶ 19.)

In the opposition, SCPMG asserts that “SCPMG has no guidelines for its doctors as to when they can order diagnostic tests and/or refer patients to specialists.” (Opp’n at p. 20:13-14.) SCPMG refers to the “Declaration of Blaine Yanabu in support of Defendants’ Motion for Summary Judgment/Summary Adjudication.” (Bradford Decl., ¶ 22, Ex. V.) Mr. Yanabu, “a Managing Director of SCPMG Internal Audit,” states that “Southern California Permanente Medical Group does not have a policy of monetary compensation for doctors based on the number, or lack thereof, of tests ordered, referrals made, or treatments prescribed.” (Yanabu Decl., ¶¶ 2, 11.)

But as set forth above, Plaintiff’s Amended Request No. 39 seeks “[a]ll DOCUMENTS reflecting any guidelines, instructions, and/or policies enacted by YOU between January 1, 2015 and the present as to when and/or under what circumstance(s) diagnostic tests including, but not limited to, X-rays, MRIs, and CT-Scans, may be ordered by YOUR PRIMARY CARE PROVIDERS for YOUR members[.]” (Ganesan Decl., ¶ 8, Ex. E.) SCPMG’s response to Amended Request No. 39 states, “Defendant will comply with this request and will produce documents it can identify and locate that are responsive to this request. Discovery is ongoing and Defendant reserves the right to supplement the response.” (Ganesan Decl., ¶ 9, Ex. F.) SCPMG does not appear to provide evidence demonstrating that it did so.

As set forth above, pursuant to Code of Civil Procedure section 2031.320, subdivision (a), “[i]f a party filing a response to a demand for inspection, copying, testing, or sampling…thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance.” Based on the foregoing, the Court grants Plaintiff’s motion as to Amended Request No. 39.

Lastly, Plaintiff asserts that “[t]he Court should impose monetary sanctions on SCPMG for its unjustified refusal to produce responsive documents.” (Mot. at p. 14:1-2.) The Court finds that the parties both acted with substantial justification in presenting their positions and thus declines to award monetary sanctions.

As set forth above, Code of Civil Procedure section 2031.310, subdivision (a) permits a propounding party to move for an order compelling a further response to a demand for inspection if the propounding party deems that a statement of compliance is incomplete, a representation of inability to comply is inadequate, incomplete, or evasive, or an objection is without merit or too general. (Code Civ. Proc., § 2031.310, subd. (a).) A motion to compel further responses to a demand for inspection must set forth specific facts showing good cause for the discovery sought and must be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2031.310, subd. (b).)

In his declaration in support of the motion, Plaintiff’s counsel states that “[o]n August 11, 2022, my office served Requests for Production of Documents, Set One, on Dr. Emel,” and that “[a]lso on August 11, 2022, my office served Special Interrogatories, Set One, on Dr. Emel…” (Ganesan Decl., ¶¶ 3-4, Exs. A-B.) Plaintiff’s counsel states that on October 5, 2022, Emel served his Responses to Plaintiff’s Requests for Production, Set One as well as his Responses to Plaintiff’s Special Interrogatories, Set One. (Ganesan Decl., ¶¶ 6-7, Exs. C-D.)

Plaintiff’s counsel states that “[o]n June 27 and 28, 2023, Mr. Bradford and I participated in an IDC with the Court regarding Defendants’ insufficient responses to Plaintiff’s discovery. At the IDC, Mr. Bradford agreed that he would consult with his clients and obtain additional documents and information, and depending on his findings, supplement Defendants’ responses accordingly.” (Ganesan Decl., ¶ 13.) Plaintiff’s counsel states that “on August 22, 2023, Mr. Bradford informed me what responses Defendants will and will not supplement. Among the documents/information Defendants refused to supplement/produce were those sought by Requests for Production Nos. 18 and 19, and Special Interrogatories, Nos. 28 and 31. The parties…conferred further via email on August 22 through August 28, 2023. Despite this extensive conferral, Defendants continued to refuse to produce any further documents.” (Ganesan Decl., ¶ 15.)

As set forth above, Plaintiff moves “for an order compelling [Emel] to produce all documents responsive to Plaintiff’s Requests for Production of Documents, Set One, Numbers 18 and 19, and to produce complete responses to Plaintiff’s Special Interrogatories, Set One, Numbers 28 and 31.”

Plaintiff’s Request No. 18 seeks “All DOCUMENTS that REFLECT YOUR position at KAISER for each year YOU worked at KAISER, including as a PRIMARY CARE PROVIDER and as a shareholder at KAISER.” (Ganesan Decl., ¶ 3, Ex. A.) Emel’s response to Request No. 18 provides, inter alia, that “Defendant objects to this request as irrelevant and unlikely to lead to the discovery of admissible evidence, overbroad in time and scope, burdensome and harassing, vague and ambiguous as to ‘REFLECT YOUR position,’ ‘worked at KAISER,’ and ‘shareholder at KAISER’ so as to render the request unintelligible. Respondent further objects to this request as violating his privacy rights without a compelling need.” (Ganesan Decl. ¶ 6, Ex. C.)

Plaintiff’s Request No. 19 seeks “All DOCUMENTS that REFLECT any compensation YOU received from KAISER for each year YOU worked at KAISER, including but not limited to any income, bonuses, dividends, shareholder income, and payment for satisfying FINANCIAL INCENTIVEs, but excluding reimbursement of expenses.” (Ganesan Decl., ¶ 3, Ex. A.) Emel’s response to Request No. 19 provides, inter alia, that “Respondent objects to this request as irrelevant and unlikely to lead to the discovery of admissible evidence, overbroad in time and scope, burdensome and harassing, vague and ambiguous as to ‘REFLECT YOUR position,’ ‘worked at KAISER,’ and ‘shareholder at KAISER’ so as to render the request unintelligible. Respondent further objects to this request as violating his privacy rights without a compelling need.” (Ganesan Decl. ¶ 6, Ex. C.)

Plaintiff’s Special Interrogatory No. 28 provides, “IDENTIFY every position YOU have held at KAISER and the base salary YOU received from KAISER for each position.” (Ganesan Decl., ¶ 4, Ex. B.) Emel’s response to Special Interrogatory No. 28 provides, “Physician. Defendant objects to this the disclosure of base salary as being in violation of his privacy rights.”

(Ganesan Decl., ¶ 7, Ex. D.) Plaintiff’s Special Interrogatory No. 31 provides, “For each year YOU worked at KAISER, IDENTIFY all amounts YOU received from KAISER excluding reimbursement of expenses.” (Ganesan Decl., ¶ 4, Ex. B.) Emel’s response to Special Interrogatory No. 31 provides, “Objection as violative of Defendant’s right [sic] privacy.” (Ganesan Decl., ¶ 7, Ex. D.)

Plaintiff asserts that the information sought in Request Nos. 18 is relevant, as it would “make it more or less likely that Plaintiff can establish his allegations that Defendant incentivized its doctors to delay diagnostic testing for scoliosis and referring its patients to specialists to treat this condition, and that Defendant Emel was so incentivized. As a shareholder Defendant received dividends from the profits earned by SCPMG. Lower costs from minimal diagnostic testing and retention of only a handful of specialists equates to higher profits to be shared amongst SCPMG’s members.” (Plaintiff’s Separate Statement at pp. 2:20-25.) Plaintiff similarly argues that the information sought in Request No. 19 is relevant because it would “make it more or less likely that Plaintiff can establish his allegations that Defendant SCPMG incentivized its doctors to delay diagnostic testing for scoliosis and referring its patients to specialists to treat this condition, and that Defendant Emel was so incentivized.” (Id. at p. 3:25-27.)

Plaintiff also argues that Emel’s privacy objections are without merit. Plaintiff again argues that “[a] party’s confidentiality is not a valid objection—the proper procedure to address privacy concerns is a protective order,” citing to Columbia Broadcasting System, Inc. v. Superior Court of Los Angeles County, supra, 263 Cal.App.2d 12. But SCPMG’s objected to Requests Nos. 18 and 19 and Special Interrogatories Nos. 28 and 31 on, inter alia, privacy grounds, not on the grounds of “confidentiality.”

In the opposition, Emel asserts that his personnel file is subject to his right to privacy. As discussed above, Emel cites to Valley Bank of Nev. v. Superior Court, supra, 15 Cal.3d at page 656, where the California Supreme Court noted that “[a] constitutional amendment adopted in 1974 elevated the right of privacy to an ‘inalienable right’ expressly protected by force of constitutional mandate. ((Cal. Const., art. I, § 1.) Although the amendment is new and its scope as yet is neither carefully defined nor analyzed by the courts, we may safely assume that the right of privacy extends to one’s confidential financial affairs as well as to the details of one’s personal life.” Emel further cites to Alch v. Superior Court, supra, 165 Cal. App. 4th at pages 1423-1424, where the Court of Appeal noted that “if the three criteria for invasion of a privacy interest exist—a legally protected privacy interest, a reasonable expectation of privacy under the particular circumstances, and a serious invasion of the interest—then the privacy interest must be measured against other competing or countervailing interests in a balancing test.” (Internal quotations omitted.)

Emel argues that “Plaintiff bears the burden to identify and articulate a compelling interest to justify these requests and justify infringement into Dr. Emel’s right to privacy when it comes to his compensation. Plaintiff has failed to justify a compelling need for Dr. Emel’s payroll information. Certainly, this information is irrelevant to Plaintiff’s claim of Medical Malpractice for alleged misdiagnoses of scoliosis in March 2021.” (Opp’n at pp. 6:28-7:3.)[2]

Emel also argues that his “payroll information is irrelevant to the claim for Unfair Business Practices as alleged against SCPMG. It is unclear how Dr. Emel’s payroll information will help prove that SCPMG incentivizes its doctors not to order diagnostic testing and/or refer its members to specialists.” (Opp’n at p. 5:18-21.). In the reply, Plaintiff argues that “Dr. Emel’s personnel and payroll records would show whether Dr. Emel had received promotions, commendations, bonuses, or other employer action that could be related to his conduct in diagnosing (or not) those conditions.” (Reply at p. 3:14-16.)

But Plaintiff does not specifically seek this information here. Rather, Plaintiff broadly seeks “All DOCUMENTS that REFLECT YOUR position at KAISER for each year YOU worked at KAISER, including as a PRIMARY CARE PROVIDER and as a shareholder at KAISER,” as well as “All DOCUMENTS that REFLECT any compensation YOU received from KAISER for each year YOU worked at KAISER, including but not limited to any income, bonuses, dividends, shareholder income, and payment for satisfying FINANCIAL INCENTIVEs, but excluding reimbursement of expenses.” (See Requests Nos. 18 and 19.) In addition, Plaintiff broadly requests that Emel “IDENTIFY every position YOU have held at KAISER and the base salary YOU received from KAISER for each position,” and that

“[f]or each year YOU worked at KAISER, IDENTIFY all amounts YOU received from KAISER excluding reimbursement of expenses.” (See Special Interrogatories Nos. 28 and 31.)

As set forth above, Plaintiff alleges that “KAISER has a policy of financially rewarding its doctors who avoid ordering expensive tests such as MRIs, X-rays, and CT scans…or treatment options such as extensive physical therapy sessions…and who avoid referrals to specialists…when treating member patients (“the Policy).” (FAC, ¶ 50.) Plaintiff’s subject requests and special interrogatories do not specifically seek information concerning any alleged financial reward obtained by Emel under the alleged Policy. As noted by Emel, “[t]he party seeking discovery must show a particularized need for the confidential information sought. The broad ‘relevancy to the subject matter’ standard is not enough here. The court must be convinced that the information is directly relevant to a cause of action or defense, i.e., that it is essential to determining the truth of the matters in dispute. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023) ¶ 8:320, citing Britt v. Sup.Ct. (San Diego Unified Port Dist.) (1978) 20 C3d 844, 859-862, 143 CR 695, 704-706; Harris v. Sup.Ct. (Smets) (1992) 3 CA4th 661, 665, 4 CR2d 564, 567 (citing text) (disapproved on other grounds by Williams v. Sup.Ct. (Marshalls of CA, LLC) (2017) 3 C5th 531, 557, 220 CR3d 472, 494 & fn. 8).” (Emphasis omitted.)

Based on the foregoing, the Court finds that there is merit to Emel’s objections to Requests Nos. 18 and 19 and Special Interrogatories Nos. 28 and 31 on the basis of overbreadth, relevance, and privacy. Thus, the Court denies the motion to compel further responses to these requests.

Based on the foregoing, Plaintiff’s motion to compel as to SCPMG is granted in part and denied in part. The Court grants Plaintiff’s motion for an order compelling SCPMG to comply with its response to Plaintiff’s Amended Request for Production No. 39. The parties are ordered to further meet and confer regarding the issues discussed regarding Request No. 6; if unsuccessful, the parties must participate in a new IDC and the deadline for moving to compel as to Request No. 6 on the issue discussed is continued to 45 days after completion of the IDC. Plaintiff’s motion is otherwise denied. In addition, Plaintiff’s request for sanctions is denied.

In addition, based on the foregoing, the Court denies Plaintiff’s motion to compel Emel to produce all documents responsive to Plaintiff’s Requests for Production of Documents, Set One, Numbers 18 and 19, and to produce complete responses to Plaintiff’s Special Interrogatories, Set One, Numbers 28 and 31. Plaintiff’s request for sanctions is denied.

[1]SCPMG notes that HIPPA refers to the “Health Insurance Portability and Accountability Act.”

[2]In the negligence cause of action, Plaintiff alleges, inter alia, that “EMEL did not properly diagnose [Plaintiff’s] curve on March 8, 2021,” and that “[Plaintiff] was harmed as a result of DEFENDANTS’ failure to adhere to the standards and protocol for the diagnosis and treatment of [Plaintiff’s] scoliosis.” (FAC, ¶¶ 37, 41.)

DEVIN ESTIME, et al., Plaintiffs, vs. KAISER FOUNDATION HEALTH PLAN, INC., et al., Defendants.	Case No.:	22STCV06517
	Hearing Date:	January 26, 2024
	Hearing Time:	10:00 a.m.
	[TENTATIVE] ORDER RE: PLAINTIFF’S MOTION FOR LEAVE TO AMEND FIRST AMENDED COMPLAINT

DEVIN ESTIME, et al., Plaintiffs, vs. KAISER FOUNDATION HEALTH PLAN, INC., et al., Defendants.	Case No.:	22STCV06517
	Hearing Date:	January 26, 2024
	Hearing Time:	10:00 a.m.
	[TENTATIVE] ORDER RE: PLAINTIFF’S MOTION TO COMPEL FURTHER REPONSES AND COMPLIANCE REGARDING DEFENDANT SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’S RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS; REQUEST FOR MONETARY SANCTIONS IN THE AMOUNT OF $18,796.25; PLAINTIFF’S MOTION TO COMPEL DEFENDANT ENRIQUE EARLE EMEL, M.D.’S FURTHER DISCOVERY RESPONSES; REQUEST FOR MONETARY SANCTIONS IN THE AMOUNT OF $7,846