This case was last updated from Los Angeles County Superior Courts on 06/14/2020 at 23:53:40 (UTC).

EDITH ANNE PETRUCCI ET AL VS 7 ELEVEN DISTRIBUTION COMPANY

Case Summary

On 02/26/2018 EDITH ANNE PETRUCCI filed an Other - Environment lawsuit against 7 ELEVEN DISTRIBUTION COMPANY. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are BARBARA A. MEIERS, GREGORY W. ALARCON, DEBRE K. WEINTRAUB, RUPERT A. BYRDSONG, KENNETH R. FREEMAN and ELAINE LU. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5450

  • Filing Date:

    02/26/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other - Environment

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

BARBARA A. MEIERS

GREGORY W. ALARCON

DEBRE K. WEINTRAUB

RUPERT A. BYRDSONG

KENNETH R. FREEMAN

ELAINE LU

 

Party Details

Plaintiffs and Petitioners

PETRUCCI EDITH ANNE

PETRUCCI ROBERT

Defendants and Respondents

COSTCO WHOLESALE CORP

FONTEM US INC

COSMIC FOG VAPORS LLC

BLUE LABEL ELIXIR INC

ALMOND CORPORATION

7-ELEVEN DISTRIBUTION COMPANY

CUTTWOOD LLC

UNIQUE VAPORS

PEICK LOUIS

SMOKELESS IMAGE LLC

VAPING BIRDY LLC

VAPEWILD LLC

THE VAPE LODGE LLC

SGL GLOBAL INC.

VGOD INC.

NJOY ENDS

NJOY INC.

LOST ART LIQUIDS LLC

3 More Parties Available

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

METZGER RAPHAEL ESQ.

Defendant and Respondent Attorneys

MORRISON & FOERSTER LLP

MANNING & KASS ELLROD RAMIREZ TRESTER

BARKER DAVID E. ESQ.

HOWELL RICHARD K. ESQ.

CALL & JENSEN

ARNOLD & PORTER KAYE SCHOLER LLP

TURKEN JAMES H. ESQ.

SPIEWAK S. ADAM

PISANO GEORGE A.

PATEL JAYESH ESQ.

ARNOLD KERI

BORNCAMP THOMAS

HOWELL RICHARD KEITH

MASHNEY STEPHEN B

TURKEN JAMES HENRY

PISANO GEORGE ANTHONY

MCCORMICK SEAN

SEO EDWARD W

CHRISTENSEN BROCK B

8 More Attorneys Available

 

Court Documents

Notice - NOTICE OF RESCHEDULED HRG ON PLTFS' MTN TO QUASH

4/21/2020: Notice - NOTICE OF RESCHEDULED HRG ON PLTFS' MTN TO QUASH

Memorandum of Points & Authorities

7/16/2019: Memorandum of Points & Authorities

Notice Re: Continuance of Hearing and Order

7/25/2019: Notice Re: Continuance of Hearing and Order

Motion to Compel - MOTION TO COMPEL FURTHER RESPONSES TO NU MARK LLC'S SPECIAL INTERROGATORIES AND REQUESTS FOR PRODUCTION

7/29/2019: Motion to Compel - MOTION TO COMPEL FURTHER RESPONSES TO NU MARK LLC'S SPECIAL INTERROGATORIES AND REQUESTS FOR PRODUCTION

PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR A CASE MANAGEMENT ORDER FOR JOINT LAW AND MOTION PROCEEDINGS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT; DECLARATION OF SCOTT P. BRUST

7/18/2018: PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR A CASE MANAGEMENT ORDER FOR JOINT LAW AND MOTION PROCEEDINGS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT; DECLARATION OF SCOTT P. BRUST

VAPING BIRDY LLC'S, ANSWER TO UNVERIFIED COMPLAINT

7/30/2018: VAPING BIRDY LLC'S, ANSWER TO UNVERIFIED COMPLAINT

PLAINTIFFS' SUPPLEMENTAL NOTICE OF LODGING DISCOVERY REQUESTS IN SUPPORT OF MOTION FOR PROTECTIVE ORDER AND CASE MANAGEMENT ORDER REQUIRING JOINT DISCOVERY

8/14/2018: PLAINTIFFS' SUPPLEMENTAL NOTICE OF LODGING DISCOVERY REQUESTS IN SUPPORT OF MOTION FOR PROTECTIVE ORDER AND CASE MANAGEMENT ORDER REQUIRING JOINT DISCOVERY

Memorandum of Points & Authorities -

10/3/2018: Memorandum of Points & Authorities -

Memorandum of Points & Authorities -

10/3/2018: Memorandum of Points & Authorities -

Reply -

10/10/2018: Reply -

Certificate of Mailing for - Certificate of Mailing for [Notice of Case Reassignment and Order for Plaintiff to Give Notice]

1/23/2019: Certificate of Mailing for - Certificate of Mailing for [Notice of Case Reassignment and Order for Plaintiff to Give Notice]

Demurrer - with Motion to Strike (CCP 430.10)

2/28/2019: Demurrer - with Motion to Strike (CCP 430.10)

Declaration - DECLARATION OF HASSAN ELRAKABAWY RE: APPLICATION FOR GOOD FAITH SETTLEMET

5/6/2019: Declaration - DECLARATION OF HASSAN ELRAKABAWY RE: APPLICATION FOR GOOD FAITH SETTLEMET

Case Management Statement

6/18/2019: Case Management Statement

PROOF OF SERVICE FOR: 1. DEFENDANT NU MARK LLC'S NOTICE OF MOTION TO STRIKE AND MOTION TO STRIKE; MEMORANDUM OF POINTS AND AUTHORITIES; ETC

4/24/2018: PROOF OF SERVICE FOR: 1. DEFENDANT NU MARK LLC'S NOTICE OF MOTION TO STRIKE AND MOTION TO STRIKE; MEMORANDUM OF POINTS AND AUTHORITIES; ETC

DEFENDANT FONTEM US, INC.'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS' COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION OF FAWN A. SCHANZ IN SUPPORT THEREOF

4/23/2018: DEFENDANT FONTEM US, INC.'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS' COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION OF FAWN A. SCHANZ IN SUPPORT THEREOF

PROOF OF SERVICE OF SUMMONS

3/27/2018: PROOF OF SERVICE OF SUMMONS

PROOF OF SERVICE OF SUMMONS

3/12/2018: PROOF OF SERVICE OF SUMMONS

589 More Documents Available

 

Docket Entries

  • 02/01/2021
  • Hearing02/01/2021 at 09:30 AM in Department 26 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 01/06/2021
  • Hearing01/06/2021 at 08:30 AM in Department 26 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Quash OR LIMIT SUBPOENAS FOR PRODUCTION OF BUSINESS RECORDS;

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  • 01/05/2021
  • Hearing01/05/2021 at 09:00 AM in Department 26 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 11/25/2020
  • Hearing11/25/2020 at 08:30 AM in Department 26 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Sanctions

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  • 11/13/2020
  • Hearing11/13/2020 at 08:30 AM in Department 26 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Summary Judgment

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  • 10/22/2020
  • Hearing10/22/2020 at 08:30 AM in Department 26 at 111 North Hill Street, Los Angeles, CA 90012; Status Conference

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  • 09/29/2020
  • Hearing09/29/2020 at 08:30 AM in Department 26 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Compel Further Discovery Responses

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  • 06/22/2020
  • Hearing06/22/2020 at 11:00 AM in Department 26 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Compel Further Deposition Testimony

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  • 06/22/2020
  • Hearing06/22/2020 at 11:00 AM in Department 26 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Compel Further Discovery Responses

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  • 06/22/2020
  • Hearing06/22/2020 at 11:00 AM in Department 26 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Compel Further Discovery Responses

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905 More Docket Entries
  • 02/26/2018
  • DocketComplaint; Filed by Edith Anne Petrucci (Plaintiff); Robert Petrucci (Plaintiff)

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  • 02/26/2018
  • DocketSummons; Filed by Edith Anne Petrucci (Plaintiff); Robert Petrucci (Plaintiff)

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  • 02/26/2018
  • DocketReceipt; Filed by Edith Anne Petrucci (Plaintiff); Robert Petrucci (Plaintiff)

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  • 02/26/2018
  • DocketStatement of Damages (Personal Injury or Wrongful Death); Filed by Edith Anne Petrucci (Plaintiff); Robert Petrucci (Plaintiff)

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  • 02/26/2018
  • DocketCIVIL DEPOSIT

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  • 02/26/2018
  • DocketCOMPLAINT FOR TOXIC INJURIES ASSERTING CAUSES OF ACTION

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  • 02/26/2018
  • DocketPLAINTIFFS' STATEMENT OF DAMAGES

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  • 02/26/2018
  • DocketSUMMONS

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  • 02/26/2018
  • DocketPLAINTIFFS' NOTICE OF POSTING JURY FEES

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  • 02/26/2018
  • DocketNotice; Filed by Edith Anne Petrucci (Plaintiff); Robert Petrucci (Plaintiff)

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Complaint Information

ARNOLD & PORTER KAYE SCHOLER LLP

Sean Morris (No. 200368) sean.morris@arnoldporter.com

Sean A. McCormick (No. 295711) . FILED sean.mccormick@arnoldporter.com M%?" ‘or Court of Califorp) 777 South Figueroa Street, Forty-Fourth Floor -0tV of Los Angefes Los Angeles, California 90017-5844 APR 9

Telephone: 213.243.4000 2420 18

Facsimile: 213.243.4199 DI K. oy, LASEUVe ulicer/lerk of G Ry T« of Court

RK LLC %

Attorneys for Defendant NU MA 'TeTts Robimers » Deputy

SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF LOS ANGELES

EDITH ANNE PETRUCCI and ROBERT Case No.: BC695450

PETRUCCI, PROOF OF SERVICE FOR: Plaintiffs, 1. DEFENDANT NU MARK LLC’S V. NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; 7-ELEVEN DISTRIBUTION COMPANY, et MEMORANDUM OF POINTS AND al., AUTHORITIES; Defendants. 2. DECLARATION OF SEAN A.

MCCORMICK IN SUPPORT OF NU MARK LLC’S DEMURRER TO COMPLAINT

3. [PROPOSED] ORDER GRANTING

DEFENDANT NU MARK LLC’S DEMURRER TO COMPLAINT

Date: June 18, 2018 Time: 9:30 a.m. Judge: Hon. Barbara A. Meiers Dept.: 12 Res. ID: 180420308075

Complaint Filed: February 26, 2018

PROOF OF SERVICE

Tentative Rulings

Case Number: BC695450    Hearing Date: December 02, 2020    Dept: 26

IN ORDER TO IMPLEMENT PHYSICAL DISTANCING AND UNTIL FURTHER NOTICE, THE COURT STRONGLY ENCOURAGES ALL COUNSEL AND ALL PARTIES TO APPEAR REMOTELY FOR NON-TRIAL AND NON-EVIDENTIARY MATTERS, INCLUDING THIS MOTION.

Superior Court of California

County of Los Angeles

Department 26

Edith anne petrucci and ROBERT PETRUCCI,

Plaintiffs,

v.

7-ELEVEN DISTRIBUTION COMPANY, et al.,

Defendants.

Case No.: BC695450

Hearing Date: December 2, 2020

[TENTATIVE] order RE:

APPLICATION FOR AN ORDER PERMITTING david menichetti AS COUNSEL PRO HAC VICE

David Menichetti (“Menichetti”) applies as counsel pro hac vice for Defendants Nu Mark LLC and 7-Eleven Distribution Company. The application is unopposed.

Under CRC Rule 9.40, attorneys licensed and in good standing in other states may, upon the California court’s approval, appear as counsel pro hac vice in a pending case if an active member of the state bar is associated as attorney of record. (CRC 9.40(a).) Menichetti is an active member, in good standing, of the District of Colombia and the State Bar of Florida, and the U.S. District Courts for the Middle District of Georgia, the Middle District of Florida, and the Southern District of Florida. (Menichetti Decl. ¶ 3.) Menichetti is also an inactive member, in good standing of the State Bar of Georgia. (Id. ¶ 3.) In addition, Menichetti states that he is not a resident of California and is a resident of Virginia with an office in the District of Colombia. (Id. ¶ 2.) Menichetti states that he has not previously submitted a pro hac vice application in California within the last two years. (Id. ¶ 4.) Thus, Counsel satisfies the eligibility requirements of CRC 9.40(a).

Menichetti’s application successfully addresses all six content requirements outlined in CRC 9.40(d). Specifically, Menichetti provides in his application: (1) his residence and office address (Menichetti Decl. ¶ 2); (2) the courts to which Counsel has been admitted to practice and the dates of admission (Id. ¶ 3); (3) that he is a member in good standing in those courts (Ibid); (4) that he is not currently suspended or disbarred in any court (Ibid); (5) he has not filed an application to appear as counsel pro hac vice in this state in the preceding two years (Id. ¶ 4); and (6) the name, address, and telephone number of active members, Sean Morris and Vanessa C. Adriance, of the State Bar of California who are current counsel of record for Defendants Nu Mark LLC and 7-Eleven Distribution Company (Id. ¶ 5).

Further, Menichetti provides the declaration of attorney Vanessa C. Adriance, demonstrating that Menichetti meets the requirement of CRC 9.40(c)(1). That rule provides: “a person desiring to appear as counsel pro hac vice in a superior court must file with the court a verified application together with proof of service . . . of a copy of the application and of the notice on all parties who have appeared in the cause and on the State Bar of California at its San Francisco office.” (Adriance Decl. ¶ 2, Ex. A.)

CONCLUSION AND ORDER

The application of David Menichetti to appear as counsel pro hac vice for Defendants Nu Mark LLC and 7-Eleven Distribution Company is GRANTED.

The moving parties are ordered to provide notice of this order and file a proof of service of such.

DATED: December 2, 2020 ___________________________

Elaine Lu

Judge of the Superior Court

Case Number: BC695450    Hearing Date: October 22, 2020    Dept: 26

IN ORDER TO IMPLEMENT PHYSICAL DISTANCING AND UNTIL FURTHER NOTICE, THE COURT STRONGLY ENCOURAGES ALL COUNSEL AND ALL PARTIES TO APPEAR REMOTELY FOR NON-TRIAL AND NON-EVIDENTIARY MATTERS, INCLUDING THIS MOTION.

Superior Court of California

County of Los Angeles

Department 26

Edith anne petrucci and ROBERT PETRUCCI,

Plaintiffs,

v.

7-ELEVEN DISTRIBUTION COMPANY, et al.,

Defendants.

Case No.: BC695450

Hearing Date: October 22, 2020

[TENTATIVE] order RE:

plaintiffs’ Motion to quash subpoenas by defendant nu mark, llc

Background

On February 26, 2018, plaintiffs Edith Anne Petrucci (“Edith”) and Robert Petrucci (collectively “Plaintiffs”) commenced this action against approximately seventeen companies including defendants Nu Mark LLC and 7-Eleven Distribution Company (collectively “Defendants”) and one individual for damages to Edith Anne Petrucci arising out of the use of e-cigarettes and e-vaporizers. On February 1, 2019, Plaintiffs filed the operative Second Amended Complaint.

On April 8, 2020, Defendants served deposition subpoenas for production of business records to: West Gastroenterology Medical Group; Tri-Valley Urology Medical Group; Valley OBGYN Medical Group; Rancho Physical Therapy, Inc.; Vision Service Plan; Duke University Health System; Bioreference Laboratories; Specialized University Pathologists, PathMD; Duke University Health System (Pathology Department); Thomas Memorial Hospital (Pathology Department); and Specialized University Pathologists, PathMD (Pathology Samples).

(Motion pp.5:19-6:10; See also Brust Decl. Exs. A-E.) These subpoenas seek medical records that pertain to Plaintiff Edith.

On May 15, 2019, Plaintiffs filed the instant motion to quash these eleven subpoenas. The court initially set the instant motion for hearing on January 6, 2021. (Minute Order 5/19/20.) On July 2, 2020, Nu Mark filed an opposition.

On July 13, 2020, the court granted Nu Mark’s ex parte application to advance the hearing date for this motion to November 16, 2020 at 8:30 am. On July 24, 2020, the parties filed a joint statement. The hearing was then advanced again to September 24, 2020. (Minute Order 8/26/20.) On August 31, 2020, Defendant Nu Mark filed proof of service of notice of the September 24, 2020 hearing date.

On August 19, 2020, Plaintiffs filed a reply. At the September 24, 2020 hearing for this motion, the court continued the hearing to October 22, 2020, to allow for filing of supplemental evidence as to the foundation for Defendants’ assertion that there is a link between Gastroesophageal Reflux Disease and bronchiolitis obliterans organizing pneumonia. On September 28, 2020, Nu Mark filed supplemental evidence to support the foundation as to the link between Gastroesophageal Reflux Disease and bronchiolitis obliterans organizing pneumonia. On October 9, 2020, Plaintiffs filed a supplemental declaration stating that they withdraw the portion of their Motion to Quash that concerns the subpoena to West Gastroenterology Medical Group.

Legal Standard

Where the witness whose deposition is sought is not a party, a subpoena must be served to compel his or her attendance, testimony, or production of documents. (CCP § 2020.010(b).) A deposition subpoena may request (1) only the attendance and testimony of a deponent, (2) only the production of business records for copying, or (3) the attendance and testimony, as well as the production of business records. (CCP § 2020.020.) The court, upon motion or the court’s own motion, “may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.” (CCP § 1987.1(a).)

In addition, the court may make any other orders as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” (CCP § 1987.1(a).) “A deposition subpoena that commands only the production of business records for copying shall designate the business records to be produced either by specifically describing each individual item or by reasonably particularizing each category of item . . .” (CCP § 2020.410(a).)

Pursuant to Code of Civil Procedure section 2017.010:

“Unless otherwise limited by order of the court…any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.”

Discussion

The parties’ joint statement indicates that the parties’ meet and confer efforts have resolved the vast majority of disputes concerning Defendants’ subpoenas to these third parties. The Court will address only the remaining three subpoenas and contentions at issue.

Subpoenas to West Gastroenterology Medical Group, Tri-Valley Urology Medical Group, Rancho Physical Therapy

Plaintiffs contends that each of these three subpoenas are overbroad and request information that is not relevant to Plantiffs’ claims. In opposition, Defendants contend that these subpoenas seek relevant information or information likely to lead to relevant information.

Defendants’ subpoenas request the following from each of these third parties:

Copies of all medical, physician, and surgeon records; copies, NOT originals, of all x-rays, CT scans, MRI films, photographs, and any other nuclear medicine, radiological, or radiation therapy films; pathology materials, slides, and tissues; physicals and histories; laboratory reports; operating room records, discharge summaries, progress notes, patient intake forms, consultations, prescriptions, nurses' notes; birth certificate and other vital statistic records; communicable disease testing and treatment records; correspondence; psychiatric, prescription, and medication records, orders for medications; therapists' notes and social worker's records; insurance records; consent for treatment; statements of account, itemized bills, invoices and any other papers relating to any examination, diagnosis, treatment, periods of hospitalization or stays of confinement, or documents containing information regarding amendment of protected health information (PHI) in the medical records. Copies of all active or archived bills, itemized statements of account for any inpatient, outpatient, emergency room, departmental or clinic treatment; insurance claims forms (including any submitted HCF As or UB92s ); treatment pre-certifications; correspondence; and third party billing statements and Copies of all prescription profile, medication, payment, and any other records; prescription slips; medication orders; insurance claims forms; and correspondence pertaining to Edith Anne Petrucci;

(Brust Decl. Exs. A, B, D.)

“[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (CCP § 2017.010.) “[A]n implicit waiver of a party's constitutional rights encompasses only discovery directly relevant to the plaintiff's claim and essential to the fair resolution of the lawsuit.” (Vinson v. Superior Court (1987) 43 Cal. 3d 833, 842.) However, discovery should not be denied if the information sought has any relevance to the subject matter. “These rules are applied liberally in favor of discovery, and (contrary to popular belief), fishing expeditions are permissible in some cases.” (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546 [internal citation omitted].) Therefore, even if [discovery requests] are found to be “burdensome and oppressive,” the Court should not simply sustain the objection and thereby excuse any answer. Rather, the Court should limit the question to a reasonable scope. (Borse v. Superior Court (Southern Pac. Co.) (1970) 7 Cal. App. 3d 286, 289.)

Defendants contend that the information sought is relevant as Plaintiff Edith has a history of being diagnosed with and treated for Gastroesophageal Reflux Disease, which is a known risk factor for the alleged harm of bronchiolitis obliterans organizing pneumonia. Plaintiffs do not dispute this but contend that the court’s previous order limited discovery into other health conditions beyond pulmonary and cardiovascular conditions, of Plaintiff Edith to all drugs, medications, and treatments in the last twenty years. The parties have stipulated to temporally limit this subpoena to the last 20 years. (Joint Statement p.2:8-11.)

In the December 24, 2019 order on Defendant Fontem US, Inc,’s motion to compel further responses to special interrogatories, the court did limit discovery into other health conditions beyond pulmonary and cardiovascular conditions. Specifically, “ as discussed at the hearing, because medications and treatments may lead to complications many years after initial exposure, Plaintiff must also identify all drugs, medications, and treatments that she has taken in the last twenty years.” (Order, 12/24/19 at p.6:5-7.)

Based on theories of relevance presented at the time, the court’s December 24, 2019 order limited discovery beyond pulmonary and cardiovascular conditions to medications. However, that limitation was never intended to preclude any party from advancing additional theories of relevance for discovery into additional areas. Here, Defendants have articulated the relevance of medical records concerning Plaintiff Edith’s history of and treatment for Gastroesphageal Reflux Disease as a known risk factor for bronchiolitis obliterans organizing pneumonia. The information of these medical records is directly relevant to whether there are other potential causes of the injuries that Plaintiffs attribute to Defendants. Defendants have also articulated the relevance of records relating to any condition that would limit Plaintiff Edith’s physical activity as such evidence may demonstrate that Plaintiff’s Edith had a preexisting condition that limited her ability to participate in the activities that she now claims she has lost as a result of her use of Defendants’ vaping products; such evidence is directly relevant to damages. Moreover, Plaintiffs have withdrawn the motion to quash as to West Gastroenterology Medical Group.

Therefore, Plaintiffs’ motion to quash the subpoena is DENIED. Each of the three subpoenas at issue is modified and limited to require production of: any records relating to patient health histories and reports relating to cardiovascular conditions, pulmonary conditions, use of tobacco and e-vapor products, and any conditions that would limit Edith Petrucci’s physical activity; all drugs, medications, and treatments[1] taken by Plaintiff Edith within the last twenty years; and any records as to Gastroesophageal Reflux Disease for the past twenty years.

Conclusion and ORDER

Based on the foregoing, Plaintiffs’ motion to quash subpoenas issued by Defendant Nu Mark LLC and 7-Eleven Distribution Company is DENIED as MOOT as to the subpoenas directed at Valley OBGYN Medical Group; Vision Service Plan; Duke University Health System; Bioreference Laboratories; Specialized University Pathologists, PathMD; Duke University Health System (Pathology Department); Thomas Memorial Hospital (Pathology Department); and Specialized University Pathologists, PathMD (Pathology Samples).

The subpoenas to West Gastroenterology Medical Group, Tri-Valley Urology Medical Group, Rancho Physical Therapy are modified and limited to require production of: any records relating to patient health histories and reports relating to cardiovascular conditions, pulmonary conditions, use of tobacco and e-vapor products, and any conditions that would limit Edith Petrucci’s physical activity; all drugs, medications, and treatments taken by Plaintiff Edith within the last twenty years; and any records as to Gastroesophageal Reflux Disease for the past twenty years.

Moving Party to provide notice.

DATED: October 22, 2020 ___________________________

Elaine Lu

Judge of the Superior Court


[1] The court notes that the term treatment is not limited to just medication but any treatments ordered by medical professionals. (E.g. chemo therapy.)

Case Number: BC695450    Hearing Date: September 25, 2020    Dept: 26

IN ORDER TO IMPLEMENT PHYSICAL DISTANCING AND UNTIL FURTHER NOTICE, THE COURT STRONGLY ENCOURAGES ALL COUNSEL AND ALL PARTIES TO APPEAR REMOTELY FOR NON-TRIAL AND NON-EVIDENTIARY MATTERS, INCLUDING THIS MOTION.

Superior Court of California

County of Los Angeles

Department 26

Edith anne petrucci and ROBERT PETRUCCI,

Plaintiffs,

v.

7-ELEVEN DISTRIBUTION COMPANY, et al.,

Defendants.

Case No.: BC695450

Hearing Date: September 25, 2020

[TENTATIVE] order RE:

APPLICATION FOR AN ORDER PERMITTING caitlin martini mika AS COUNSEL PRO HAC VICE

Caitlin Martini Mika (“Mika”) applies as counsel pro hac vice for Defendants Nu Mark LLC and 7-Eleven Distribution Company. Her application is unopposed.

Under CRC Rule 9.40, attorneys licensed and in good standing in other states may, upon the California court’s approval, appear as counsel pro hac vice in a pending case if an active member of the state bar is associated as attorney of record. (CRC 9.40(a).) Mika is a member, in good standing, of the State Bar of Illinois and the U.S. District Court for the Northern District of Illinois. (Mika Decl. ¶ 3.) In addition, Mika states that she is a resident of Illinois. (Id. ¶ 2.) Mika states that she has not previously applied to be a pro hac vice application in California. (Id. ¶ 4.) Thus, Mika satisfies the eligibility requirements of CRC 9.40(a).

Mika’s application successfully addresses all six content requirements outlined in CRC 9.40(d). Specifically, she provides in his application: (1) her residence and office address (Mika Decl. ¶ 2); (2) the courts to which she has been admitted to practice and the dates of admission (Id. ¶ 3); (3) that she is a member in good standing in those courts (Ibid.); (4) that she is not currently suspended or disbarred in any court (Ibid.); (5) she has not filed an application to appear as counsel pro hac vice in this state in the preceding two years (Id. ¶ 4); and (6) the name, address, and telephone number of the active members, Sean Morris and Vanessa C. Adriance, of the State Bar of California who are current counsel of record for Defendant Nu Mark LLC and 7-Eleven Distribution Company. (Id. ¶ 5.)

Furthermore, Mika provides the declaration of attorney Vanessa C. Adriance, demonstrating that Mika meets the requirement of CRC 9.40(c)(1). That rule provides: “a person desiring to appear as counsel pro hac vice in a superior court must file with the court a verified application together with proof of service . . . of a copy of the application and of the notice on all parties who have appeared in the cause and on the State Bar of California at its San Francisco office.” (Adriance Decl. ¶ 2, Ex. A.) (See also Proof of Service of Defendant Nu Mark LLC and 7-Eleven Distribution Company’s Notice of Application for Pro Hac Vice.) Adriance states that the $50 fee was paid to the California State Bar and includes a copy of the receipt of payment. (Adriance Decl., ¶ 2, Ex. A.)

CONCLUSION AND ORDER

The application of Caitlin Martini Mika to appear as counsel pro hac vice for defendants Nu Mark LLC and 7-Eleven Distribution Company, LP is GRANTED.

The moving parties are ordered to provide notice of this order and file a proof of service of such.

DATED: September 25, 2020 ___________________________

Elaine Lu

Judge of the Superior Court

Case Number: BC695450    Hearing Date: September 24, 2020    Dept: 26

IN ORDER TO IMPLEMENT PHYSICAL DISTANCING AND UNTIL FURTHER NOTICE, THE COURT STRONGLY ENCOURAGES ALL COUNSEL AND ALL PARTIES TO APPEAR REMOTELY FOR NON-TRIAL AND NON-EVIDENTIARY MATTERS, INCLUDING THIS MOTION.

Superior Court of California

County of Los Angeles

Department 26

Edith anne petrucci and ROBERT PETRUCCI,

Plaintiffs,

v.

7-ELEVEN DISTRIBUTION COMPANY, et al.,

Defendants.

Case No.: BC695450

Hearing Date: September 24, 2020

[TENTATIVE] order RE:

plaintiffs’ Motion to quash subpoenas by defendant nu mark, llc

Background

On February 26, 2018, plaintiffs Edith Anne Petrucci (“Edith”) and Robert Petrucci (collectively “Plaintiffs”) commenced this action against approximately seventeen companies including defendants Nu Mark LLC and 7-Eleven Distribution Company (collectively “Defendants”), and one individual for damages to Edith Anne Petrucci arising out of the use of e-cigarettes and e-vaporizers. On February 1, 2019, Plaintiffs filed the operative Second Amended Complaint.

On April 8, 2020, Defendants served deposition subpoenas for production of business record to: West Gastroenterology Medical Group; Tri-Valley Urology Medical Group; Valley OBGYN Medical Group; Rancho Physical Therapy, Inc.; Vision Service Plan; Duke University Health System; Bioreference Laboratories; Specialized University Pathologists, PathMD; Duke University Health System (Pathology Department); Thomas Memorial Hospital (Pathology Department); and Specialized University Pathologists, PathMD (Pathology Samples).

(Motion pp.5:19-6:10; See also Brust Decl. Exs. A-E.) These subpoenas seek medical records that pertain to Plaintiff Edith.

On May 15, 2019, Plaintiffs filed the instant motion to quash these eleven subpoenas. The court initially set the instant motion for hearing on January 6, 2021. (Minute Order 5/19/20.) On July 2, 2020, Nu Mark filed an opposition.

On July 13, 2020, the court granted Nu Mark’s ex parte application to advance the hearing date for this motion to November 16, 2020 at 8:30am. On July 24, 2020, the parties filed a joint statement. The hearing was then advanced again to September 24, 2020. (Minute Order 8/26/20.) On August 31, 2020, Defendant Nu Mark filed proof of service of notice of the September 24, 2020 hearing date.

On August 19, 2020, Plaintiff filed a reply.

Legal Standard

Where the witness whose deposition is sought is not a party, a subpoena must be served to compel his or her attendance, testimony, or production of documents. (CCP § 2020.010(b).) A deposition subpoena may request (1) only the attendance and testimony of a deponent, (2) only the production of business records for copying, or (3) the attendance and testimony, as well as the production of business records. (CCP § 2020.020.) The court, upon motion or the court’s own motion, “may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.” (CCP § 1987.1(a).)

In addition, the court may make any other orders as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” (CCP § 1987.1(a).) “A deposition subpoena that commands only the production of business records for copying shall designate the business records to be produced either by specifically describing each individual item or by reasonably particularizing each category of item . . .” (CCP § 2020.410(a).)

Pursuant to Code of Civil Procedure section 2017.010:

“Unless otherwise limited by order of the court…any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.”

Discussion

The parties’ joint statement indicates that the parties’ meet and confer efforts have resolved the vast majority of disputes concerning Defendants’ subpoenas to these third parties. The Court will address only the remaining three subpoenas and contentions at issue.

Subpoena to West Gastroenterology Medical Group, Tri-Valley Urology Medical Group, Rancho Physical Therapy

Plaintiffs contends that each of these three subpoenas are overbroad and request information that is not relevant to Plantiffs’ claims. In opposition, Defendants contend that these subpoenas seek relevant information or information likely to lead to relevant information.

Defendants’ subpoenas request the following from each of these third parties:

Copies of all medical, physician, and surgeon records; copies, NOT originals, of all x-rays, CT scans, MRI films, photographs, and any other nuclear medicine, radiological, or radiation therapy films; pathology materials, slides, and tissues; physicals and histories; laboratory reports; operating room records, discharge summaries, progress notes, patient intake forms, consultations, prescriptions, nurses' notes; birth certificate and other vital statistic records; communicable disease testing and treatment records; correspondence; psychiatric, prescription, and medication records, orders for medications; therapists' notes and social worker's records; insurance records; consent for treatment; statements of account, itemized bills, invoices and any other papers relating to any examination, diagnosis, treatment, periods of hospitalization or stays of confinement, or documents containing information regarding amendment of protected health information (PHI) in the medical records. Copies of all active or archived bills, itemized statements of account for any inpatient, outpatient, emergency room, departmental or clinic treatment; insurance claims forms (including any submitted HCF As or UB92s ); treatment pre-certifications; correspondence; and third party billing statements and Copies of all prescription profile, medication, payment, and any other records; prescription slips; medication orders; insurance claims forms; and correspondence pertaining to Edith Anne Petrucci;

(Brust Decl. Exs. A, B, D.)

“[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (CCP § 2017.010.) “[A]n implicit waiver of a party's constitutional rights encompasses only discovery directly relevant to the plaintiff's claim and essential to the fair resolution of the lawsuit.” (Vinson v. Superior Court (1987) 43 Cal. 3d 833, 842.) However, discovery should not be denied if the information sought has any relevance to the subject matter. “These rules are applied liberally in favor of discovery, and (contrary to popular belief), fishing expeditions are permissible in some cases.” (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546 [internal citation omitted].) Therefore, even if [discovery requests] are found to be “burdensome and oppressive,” the Court should not simply sustain the objection and thereby excuse any answer. Rather, the Court should limit the question to a reasonable scope. (Borse v. Superior Court (Southern Pac. Co.) (1970) 7 Cal. App. 3d 286, 289.)

Defendants contend that the information sought is relevant as Plaintiff Edith has a history of being diagnosed with and treated for Gastroesophageal Reflux Disease, which is a known risk factor for the alleged harm of bronchiolitis obliterans organizing pneumonia. Plaintiffs do not dispute this but contend that the court’s previous order limited discovery into other health conditions beyond pulmonary and cardiovascular conditions, of Plaintiff Edith to all drugs, medications, and treatments in the last twenty years. The parties have stipulated to temporally limit this subpoena to the last 20 years. (Joint Statement p.2:8-11.)

In the December 24, 2019 order on Defendant Fontem US, Inc,’s motion to compel further responses to special interrogatories, the court did limit discovery into other health conditions beyond pulmonary and cardiovascular conditions. Specifically, “ as discussed at the hearing, because medications and treatments may lead to complications many years after initial exposure, Plaintiff must also identify all drugs, medications, and treatments that she has taken in the last twenty years.” (Order, 12/24/19 at p.6:5-7.)

Based on theories of relevance presented at the time, the court’s December 24, 2019 order limited discovery beyond pulmonary and cardiovascular conditions to medications. However, that limitation was never intended to preclude any party from advancing additional theories of relevance for discovery into additional areas. Here, Defendants have articulated the relevance of medical records concerning Plaintiff Edith’s history of and treatment for Gastroesphageal Reflux Disease as a known risk factor for bronchiolitis obliterans organizing pneumonia. The information of these medical records is directly relevant to whether there are other potential causes of the injuries that Plaintiffs attribute to Defendants.

Therefore, Plaintiffs’ motion to quash the subpoena is DENIED. Each of the three subpoenas at issue is modified and limited to require production of: any records relating to patient health histories, reports, cardiovascular conditions, pulmonary conditions, and use of tobacco and e-vapor products; all drugs, medications, and treatments[1] taken by Plaintiff Edith within the last twenty years; and any records as to Gastroesophageal Reflux Disease for the past twenty years.

Conclusion and ORDER

Based on the foregoing, Plaintiffs’ motion to quash subpoenas issued by Defendant Nu Mark LLC and 7-Eleven Distribution Company is DENIED as MOOT as to the subpoenas directed at Valley OBGYN Medical Group; Vision Service Plan; Duke University Health System; Bioreference Laboratories; Specialized University Pathologists, PathMD; Duke University Health System (Pathology Department); Thomas Memorial Hospital (Pathology Department); and Specialized University Pathologists, PathMD (Pathology Samples).

The subpoenas to West Gastroenterology Medical Group, Tri-Valley Urology Medical Group, Rancho Physical Therapy are modified and limited to require production of: any records relating to patient health histories, reports, cardiovascular conditions, pulmonary conditions, and use of tobacco and e-vapor products; all drugs, medications, and treatments taken by Plaintiff Edith within the last twenty years; and any records as to Gastroesophageal Reflux Disease for the past twenty years.

Moving Party to provide notice.

DATED: September 24, 2020 ___________________________

Elaine Lu

Judge of the Superior Court


[1] The court notes that the term treatment is not limited to just medication but any treatments ordered by medical professionals. (E.g. chemo therapy.)

Case Number: BC695450    Hearing Date: June 22, 2020    Dept: 26

IN ORDER TO IMPLEMENT PHYSICAL DISTANCING AND UNTIL FURTHER NOTICE, THE COURT STRONGLY ENCOURAGES ALL COUNSEL AND ALL PARTIES TO APPEAR REMOTELY FOR NON-TRIAL AND NON-EVIDENTIARY MATTERS, INCLUDING THIS MOTION.

Background

On February 26, 2018, Edith Anne Petrucci and Robert Petrucci (Plaintiffs) commenced this action against approximately seventeen companies, including moving defendants Nu Mark LLC (“Nu Mark”), 7-Eleven Distribution Company (“7-Eleven”), and Fontem US, Inc. (“Fontem”) and one individual for damages to Edith Anne Petrucci arising out of the use of e-cigarettes and e-vaporizer. On February 1, 2019, Plaintiffs filed the operative Second Amended Complaint.

plaintiffs’ Motion to quash subpoenas by defendant nu mark, llc

On August 7, 2019, Nu Mark served subpoenas on: Metal Container Corporation, MCC; Ramko Manufacturing Inc; Scotts Company; Employment Development Department, State of California (EDD); Mutual of Omaha Insurance Company; Ullico Casualty Company & Liquidation (Motion p.2:3-11; See Also Brust Decl. Exs. A-E.) These subpoenas seek records that pertain to Plaintiff Robert Petrucci (Plaintiff Robert).

On August 23, 2019, Plaintiffs filed the instant motion to quash these subpoenas. On April 8, 2020, Nu Mark filed an opposition. On June 15, 2020, Plaintiffs filed their reply.

On April 13, 2020, pursuant to the January 28, 2020 meet and confer order, Nu Mark and Plaintiffs filed a joint statement identifying the remaining contentions at issue after meeting and conferring. Due to the COVID-19 pandemic this hearing was continued from April 8, 2020 to June 22, 2020. (See Minute Orders 3/17/20, 4/20/20, and 4/23/20.)

Legal Standard

Where the witness whose deposition is sought is not a party, a subpoena must be served to compel his or her attendance, testimony, or production of documents. (CCP § 2020.010(b).) A deposition subpoena may request (1) only the attendance and testimony of a deponent, (2) only the production of business records for copying, or (3) the attendance and testimony, as well as the production of business records. (CCP § 2020.020.) The court, upon motion or the court’s own motion, “may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.” (CCP § 1987.1(a).)

In addition, the court may make any other orders as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” (CCP § 1987.1(a).) “A deposition subpoena that commands only the production of business records for copying shall designate the business records to be produced either by specifically describing each individual item or by reasonably particularizing each category of item . . .” (CCP § 2020.410(a).)

Pursuant to Code of Civil Procedure section 2017.010:

“Unless otherwise limited by order of the court…any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.”

Discussion

Pursuant to representations made by the parties in the joint statement, the court will address only the remaining contentions at issue.

Subpoenas to Metal Container Corporation, MCC; Ramko Manufacturing Inc.; and Scotts Company

Nu Mark’s subpoenas to Metal Container Corporation, MMC, Ramko Manufacturing, Inc., and Scotts Company request the following:

Copies of all applications for employment, resumes, records of all positions and job descriptions held, payroll records, W-2 and W-4 forms, performance evaluations and reports, statements and reports of fellow employees, attendance records, worker's compensation files; hospital, physician, clinic, infirmary, nurse, psychiatric, psychological and dental records; x-rays, test results, physical examination and other medical records; records pertaining to medical or disability claims, or work-related accidents, including correspondence, accident, injury, and incident reports; insurance claim forms, questionnaires, and records of payments made; pension, disability, and all records regarding participation in company-sponsored health, dental, life, and disability insurance plans; material safety data sheets, chemical inventories, and environmental monitoring records and all other employee exposure records pertaining to all positions held; and any other record concerning employment with the above named entity in [Metal Container Corporation, MMC, Ramko Manufacturing, Inc., and Scotts Company’s] possession pertaining to Robert Henry Petrucci, Jr.; DOB: XX/XX/1960; SSN: XXX-XXXXXX.

(Brust Decl. Exs. A-C.)

Plaintiffs contend that the subpoenas to Metal Container Corporation, MMC, Ramko Manufacturing, Inc., and Scotts Company are overbroad and seek information not relevant to the instant case. Plaintiffs specifically contend that (1) the employment and medical records sought are irrelevant and invasive, (2) the tax records are protected from disclosure, and (3) the psychological records are protected from disclosure.

In the joint statement, Nu Mark states that it “agrees that the issue of psychiatric records is not currently in dispute.” (Joint Statement p.5:19-20.) Nu Mark also states that it agrees not to seek tax forms (W-2s and W-4s). (Id. at p. 6:1.) Accordingly, the remaining issues are whether the employment and medical records are relevant.

Medical Records and Worker’s Compensation Claims

“[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (CCP § 2017.010.) “[A]n implicit waiver of a party's constitutional rights encompasses only discovery directly relevant to the plaintiff's claim and essential to the fair resolution of the lawsuit.” (Vinson v. Superior Court (1987) 43 Cal. 3d 833, 842.) However, discovery should not be denied if the information sought has any relevance to the subject matter. “These rules are applied liberally in favor of discovery, and (contrary to popular belief), fishing expeditions are permissible in some cases.” (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546 [internal citation omitted].) Therefore, even if [discovery requests] are found to be “burdensome and oppressive,” the Court should not simply sustain the objection and thereby excuse any answer. Rather, the Court should limit the question to a reasonable scope. (Borse v. Superior Court (Southern Pac. Co.) (1970) 7 Cal. App. 3d 286, 289.)

Here, Plaintiff Robert seeks only damages for loss of consortium. (SAC ¶¶ 184-186.) The elements for a claim of loss of consortium are “‘(1) a valid and lawful marriage between the plaintiff and the person injured at the time of the injury; [¶] (2) a tortious injury to the plaintiff's spouse; [¶] (3) loss of consortium suffered by the plaintiff; and [¶] (4) the loss was proximately caused by the defendant's act.’” (LeFiell Manufacturing Co. v. Superior Court (2012) 55 Cal.4th 275, 284–285.)

Nu Mark contends that employment records and medical records are relevant as to the third and fourth elements. Nu Mark states that the medical records are relevant because “[Plaintiff Robert]' s medical and employment records will shed light on whether he was physically capable of enjoying these physical activities, and society with his wife before her alleged injury, and whether it was in fact his wife's illness that caused him to lose these things (assuming he ever had them) or whether some other intervening physical injury or illness, such as a chemical exposure or psychological ailment, caused that loss.” (Opposition p.5:13-17.) To support this Nu Mark refers to Plaintiff Edith’s testimony where she states that they would go to movies together, go for walks together, and go fishing together. (See Adriance Decl. Ex. B.) Nu Mark similarly seeks worker compensation claims stating the same reason. (Opposition p.7:17-20.)

The Court agrees that medical evidence is relevant as it will show if Plaintiff Robert was physically able to participate in these activities before Plaintiff Edith’s alleged illness. Medical information could also show whether there were other causes besides Plaintiff Edith’s alleged illness that caused Plaintiff Robert’s inability to go to movies together, go for walks together, and go fishing together with Plaintiff Edith. However, the information sought is unrestricted in time frame and thus overbroad.[1] Accordingly, as this information is only relevant with regard to the loss of consortium between Plaintiffs, the time frame will be limited from December 29, 2013 onward. With this modification, Plaintiffs’ request to quash these subpoenas as to medical information, and worker’s compensation claims is DENIED.

Employment Records

Nu Mark contends that employment records information is relevant because “[Plaintiff Robert]’s attendance records, job descriptions, and the like go directly to what his work entailed, how it may have affected his quality of life with [Plaintiff Edith] and his ability to engage in recreational activities and enjoy her company prior to her illness, and whether he may have missed work or taken vacation time before or after [Plaintiff Edith]’s illness.” (Opposition p.7:22-25.) Nu Mark also contends that this information is relevant due to possible injuries on the job.

The Court disagrees as there is no claim for loss of employment. Nu Mark has failed to explain how this information is relevant to Plaintiff Robert’s claim of loss of consortium other than what the Court has already addressed above. Accordingly, Plaintiffs’ request to quash the subpoena as to employment records is GRANTED with the exception of workers compensation claims as described above.

Accordingly, the above subpoenas are limited to worker's compensation files; hospital, physician, clinic, infirmary, nurse, and dental records; x-rays, test results, physical examination and other medical records; records pertaining to medical or disability claims, or work-related accidents, including correspondence, accident, injury, and incident reports; insurance claim forms, questionnaires, and records of payments made; pension, disability, and all records regarding participation in company-sponsored health, dental, life, and disability insurance plans; material safety data sheets, chemical inventories, and environmental monitoring records and all other employee exposure records pertaining to all positions held; and any other record concerning employment with the above-named entity in [Metal Container Corporation, MMC, Ramko Manufacturing, Inc., and Scotts Company’s] possession pertaining to Plaintiff Robert from December 29, 2013 onward.

Subpoena to Employment Development Department, State of California

Here Nu Mark requests “[a]ny and all unemployment records pertaining to [Plaintiff Robert].” (Brust Decl. Ex. D) As discussed above, Plaintiff Robert is not seeking compensation as to loss of employment. Similarly, Nu Mark has not provided any reason as to how this information is relevant to Plaintiff Robert’s claim of loss of consortium.

Accordingly, Plaintiffs’ request to quash this subpoena is GRANTED.

Subpoena to Mutual of Omaha Insurance Company

Here, Nu Mark requests the following:

Copies of all applications for insurance coverage and renewals; all insurance policies, certificates and benefit schedules regarding the insured's coverage, including supplemental coverage; health and physical examination records that were reviewed for underwriting purposes, and any statements, communications, correspondence, reports, questionnaires, and records submitted in connection with applications or renewals for insurance coverage or claims; all physician's, hospital, psychiatric, psychological, and dental reports, prescriptions, correspondence, test results; radiological films and any other medical record that was submitted for claims review purposes; claim records, records of any paid claim; records of all litigation; and any other record of any kind concerning or pertaining to the insured pertaining to Robert Henry Petrucci, Jr.; DOB: XX/XX/1960; SSN: XXX-XX-:XXXX.

(Brutz Decl. Ex. E.)

Nu Mark seeks two types of documents: insurance history documents and medical history documents. With regard to the medical history documents, the court has already discussed above why these are relevant.

With regard to the insurance history documents, Nu Mark has not articulated how the information sought is relevant to Plaintiff Robert’s claim.

Accordingly, the above subpoena is narrowed to health and physical examination records and all physician's, hospital, and dental reports, prescriptions, correspondence, test results; radiological films and any other medical record that was submitted for claims review purposes; claim records, records of any paid claim; records of all litigation; and any other record of any kind concerning or pertaining to the insured pertaining to Plaintiff Robert from December 29, 2013 onward.

Subpoena to Ullico Casualty Company & Liquidation

Here Nu Mark subpoenaed “[a]ny and all workers compensation records pertaining to [Plaintiff Robert].” (Brust Decl. Ex. F.)

As noted above claims for workers compensation may be relevant. However, as there is no limitation on the time period, this request will be limited to December 29, 2013 onward.

Conclusion and ORDER

Based on the foregoing, Plaintiffs’ motion to quash subpoena’s issued by Defendant Nu Mark, is GRANTED in part.

The subpoenas to Metal Container Corporation, MCC; Ramko Manufacturing Inc.; and Scotts Company are limited to require the production of: Worker's compensation files; hospital, physician, clinic, infirmary, nurse, and dental records; x-rays, test results, physical examination and other medical records; records pertaining to medical or disability claims, or work-related accidents, including correspondence, accident, injury, and incident reports; insurance claim forms, questionnaires, and records of payments made; pension, disability, and all records regarding participation in company-sponsored health, dental, life, and disability insurance plans; material safety data sheets, chemical inventories, and environmental monitoring records and all other employee exposure records pertaining to all positions held; and any other record concerning employment with the above named entity in [Metal Container Corporation, MMC, Ramko Manufacturing, Inc., and Scotts Company’s] possession pertaining to Plaintiff Robert from December 29, 2013 onward.

The subpoena to the Employment Development Department, State of California is quashed.

The subpoena to Mutual of Omaha Insurance Company is narrowed to require the production of health and physical examination records and all physician's, hospital, and dental reports, prescriptions, correspondence, test results; radiological films and any other medical record that was submitted for claims review purposes; claim records, records of any paid claim; records of all litigation; and any other record of any kind concerning or pertaining to the insured pertaining to Plaintiff Robert from December 29, 2013 onward.

The subpoena to Ullico Casualty Company & Liquidation is narrowed to require the production of records from December 29, 2013 onward.

defendant Nu mark llc and 7-Elevens’s motion to compel deposition testimony and production of documents from plaintiff anne petrucci

On September 5, 2019, and September 6, 2019, Nu Mark and 7-Eleven conducted a deposition of Plaintiff Edith. (McCormick Decl ¶¶ 2-3, Exs. 1-2.) During the deposition, Plaintiff Edith was instructed not to answer certain questions regard sexual relations and intimacy with Plaintiff Robert, and Plaintiff objected to and did not produce certain requested documents.

On November 14, 2019, Nu Mark and 7-Eleven filed the instant motions to compel Plaintiff Edith Anne Petrucci (1) to answer deposition questions concerning her sexual relations and intimacy with Plaintiff Robert Petrucci, (2) to produce documents sought in the deposition notice, and (3) to answer deposition questions concerning those documents. Due to the COVID-19 pandemic the hearings for these motions were continued from April 29, 2020 to June 22, 2020. (Minute Orders 4/20/20, 4/27/20, 4/30/20.) On June 9, 2020, Plaintiffs filed an opposition. On June 15, 2020, Nu Mark and 7-Eleven filed their reply.

On January 29, 2020, the Court ordered that the parties file a joint statement for all future motions to compel further in the instant action. (Order filed 1/29/20.) On June 12, 2020, the parties filed a joint statement.

Legal Standard

Compel Deposition and Production of Documents

“Any party may obtain discovery . . . by taking in California the oral deposition of any person, including any party to the action. The person deposed may be a natural person, an organization such as a public or private corporation, a partnership, an association, or a governmental agency.” (Code Civ. Proc. § 2025.010.) “If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” (CCP § 2025.450(a).)

“If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (CCP § 2025.480(a).)

“The motion shall set forth the following: (1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. (2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (CCP § 2025.450(b)(1)-(2).)

Discussion

Meet and Confer

“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.” (CCP § 2016.040.) Failure to do so is an abuse of discovery. (CCP § 2023.010(i).)

Nu Mark and 7-Eleven have fulfilled this requirement. (McCormick Decl. ¶ 3, Ex. 4.)

Requests for Production

The Court notes that the requests for production of documents are no longer at issue in this motion. (Opposition p. 1:13-14.)

Compel Deposition Answers

Sexual Relations Questions

Nu Mark and 7-Eleven request information about Plaintiffs’ sexual relations as it relates to the loss of consortium claim, which includes loss of “sexual relations”. (Second Amended Complaint ¶ 186.)

“[W]here a plaintiff seeks discovery from a defendant concerning sexual matters protected by the constitutional right of privacy, the ‘intrusion upon sexual privacy may only be done on the basis of “practical necessity” ’ [Citation] and ‘the compelled disclosure [must] be narrowly drawn to assure maximum protection of the constitutional interests at stake.’” (John B. v. Superior Court Moreover, under the Physician-patient privilege “the patient, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and physician[.]” (Evid. Code, § 994.) This privilege bars even discovery of relevant information unless it is waived. However, “[t]he whole purpose of the privilege is to preclude the humiliation of the patient that might follow disclosure of his ailments. When the patient himself discloses those ailments by bringing an action in which they are in issue, there is no longer any reason for the privilege.” (City & County of San Francisco v. Superior Court In and For City and County of San Francisco (1951) 37 Cal.2d 227, 232.)

Here, Plaintiffs expressly allege loss of sexual relations. (SAC ¶ 186.) Plaintiffs assert that they have abandoned this claim and that the “Loss of Consortium claim is expressly limited to [Plaintiff Robert’s] damages for ‘the loss of love, companionship, comfort, care, assistance, protection, affection, society, and moral support,’ as stated in CACI jury instruction 3920(1)[,]” (Opposition p.1:23-25.) However, Plaintiffs fail to present any evidence to support this contention. Plaintiffs’ mere argument in their opposition is insufficient. Accordingly, Nu Mark’s and 7-Eleven’s motions to compel answers as to sexual relations and intimacy are GRANTED.

Plaintiff Edith Anne Petrucci is ordered to appear for deposition within twenty (20) days of notice of this order at a date, time, and location noticed by Defendants Nu Mark LLC and 7-Eleven Distribution Company. If Plaintiffs wish to withdraw their claim for loss of sexual relations in order to avoid Plaintiff Edith’s further appearance for deposition, Plaintiffs may file and serve a written notice of withdrawal of their claim for loss of sexual relations within 10 days of this order.

CONCLUSIONS AND ORDER

Based on the foregoing, Defendants Nu Mark LLC and 7-Eleven Distribution Company’s motion to compel production of documents is MOOT.

Defendants Nu Mark LLC and 7-Eleven Distribution Company’s motion to compel answers is GRANTED. Plaintiff Edith Anne Petrucci is ordered to appear for deposition within twenty (20) days of notice of this order at a date, time, and location noticed by Defendants Nu Mark LLC and 7-Eleven Distribution Company. Alternatively, if Plaintiffs wish to withdraw their claim for loss of sexual relations in order to avoid Plaintiff Edith’s further appearance for deposition, Plaintiffs may file and serve a written notice of withdrawal of their claim for loss of sexual relations within 10 days of this order.

defendant Nu Mark llc’s motion to compel plaintiff edith anne Petrucci’s further responses to Request for production set Two

On September 19, 2019, Nu Mark served Plaintiff Edith with its Requests for Production of Documents, Set Two (“RFP”) (McCormick Decl. ¶ 5, Ex. D.)

On October 22, 2019, Plaintiff Edith electronically served a response. (Id. at ¶ 6, Ex. E.)

On December 10, 2019, Nu Mark filed the instant motion to compel further responses. On March 4, 2020, Plaintiffs filed an opposition.

On January 29, 2020, the Court ordered that the parties file a joint statement for all future motions to compel further in the instant action. (Order filed 1/29/20.) On March 6, 2020, Nu Mark and Plaintiffs filed a joint statement identifying the remaining discovery requests at issue.

Legal Standard

Requests for Production

Code of Civil Procedure section 2031.310 provides, in pertinent part, as follows:

(a)

(1)

(2)

(3)

(b)

(1)

(2) .

Discussion

Timeliness

A party bringing a motion to compel further responses must do so within 45 days of service of the verified response unless the parties agree in writing and specify a later date. (CCP § 2031.310(c).) The 45-day limit is jurisdictional as the Court has no authority to grant late-filed papers. (See Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) However, this 45-day limit is extended if served by mail, overnight delivery, fax, or electronically. (See CCP §§ 1010.6(a)(4), 1013.)

Here Plaintiff Edith served her verified responses on October 22, 2019, via electronic service. (McCormick Decl. ¶ 6, Ex. E.) Service by electronic service extends the 45-day deadline by two court days. (CCP § 1010.6(a)(4)(B).) Accordingly, December 10, 2019, was the deadline to file a motion to compel further responses. Therefore, this motion filed on December 10, 2019, is timely.

Meet and Confer

“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.” (CCP § 2016.040.)

The moving party has satisfied this requirement. (McCormick Decl., ¶¶ 7-8.)

Requests for Production

There are three requests for production remaining at issue[2], requests for production 20, 26, and 27. The Joint Statement filed by the parties only has a few remaining points of contention at issue. Therefore, the Court will address only these remaining contentions.

Request for Production No. 20

Request for Production 20 seeks “ALL photographs depicting YOU and Plaintiff Robert Petrucci from the beginning of YOUR relationship to the present day.” (Request for Production No. 20.)

Nu Mark argues that photographs of Plaintiff Edith and her husband are relevant to Plaintiffs’ allegation that Plaintiff Edith’s damages include diminished quality and enjoyment of life. (Joint Statement, p.4:23.) The dispute between the parties centers around the temporal scope of the production, specifically, the beginning point of when Plaintiff should be required to produce photos. Nu Mark states that it seeks relevant photographs from the period immediately before, during, and after Plaintiff Edith’s alleged use of the product. (Id. at p.6:4-6.) Nu Mark has proposed to limit Plaintiff Edith’s response to 2010 forward. (Id. at p.6:12-15.) Plaintiffs contend that reaching as far back as 2010 is overbroad and that the period immediately before Plaintiff Edith’s use of vaping products should include photos only from the date of Plaintiffs’ marriage in 2013. (Id. at p.7:1-5.)

The parties agree that the date on which Plaintiff Edith allegedly began using e-vape products was in March of 2014. (Id. at p. 6:4-5, p. 6:25-26.) The Court finds that the relevant period for RFP 20 is from the date of Plaintiffs’ marriage on December 29, 2013,[3] continuing to the present.

Requests for Production Nos. 26-27

Request for Production 26 seeks “ALL COMMUNICATIONS relating to injuries YOU allege in this case.” (Request for Production No. 26.)

Request for Production 27 seeks “ALL COMMUNICATIONS relating to E-VAPOR PRODUCTS” (Request for Production No. 27.)

For both of these RFPs, Plaintiff Edith lodged multiple objections, including attorney-client privilege, work-product privilege, oppressiveness, unreasonableness, vagueness and ambiguity, and seeking premature expert disclosure. Following these objections, Plaintiff substantively responded to both RFP 26 and 27:

“Subject to and without waiving the foregoing general and specific objections, responding party further responds to this inspection demand as follows:

Responding party will comply with this demand by producing all non-privileged documents in her possession, custody and/or control related to the injuries alleged in this action pursuant to the terms set forth above; however, responding party has already made all non-privileged documents responsive to this demand available to propounding party under cover letters dated August 27, 2019; October 2, 2018; November 14, 2018; February 21, 2019; May 1, 2019; September 16, 2019 and October 21, 2019. Discovery is continuing.”

(Response to Request for Production Nos. 26, 27.)

During her deposition, Plaintiff Edith testified that her daughter had sent her articles about the health consequences of using e-vapor products. (McCormick Decl. Ex A. p. 336:4-6.) Nu Mark contends that Plaintiff’s responses to RFPs 26 and 27 are insufficient because Plaintiff Edith has not produced these articles that she received from her daughter relating to e-vapor products. (Joint Statement p.9:11-15.)

Plaintiffs counter that RFPs 26 and 27 are overbroad on their face as they seek attorney-client privileged materials. With regard to the articles about which Plaintiff Edith testified at her deposition, Plaintiff Edith contends that her responses were proper as there is “is no requirement for [Plaintiff Edith] to account for additional responsive documents that she may have seen in the past.”[4] (Id. at p. 11:18-19.)

With regard to Plaintiffs’ argument that the requests are overbroad on their face and would reach attorney-client privileged information, the Court agrees. However, the court notes that the scope of discovery is broad as “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (CCP § 2017.010.) Further, “an implicit waiver of a party's constitutional rights encompasses only discovery directly relevant to the plaintiff's claim and essential to the fair resolution of the lawsuit.” (Vinson v. Superior Court (1987) 43 Cal. 3d 833, 842.) Discovery should not be denied if the information sought has any relevance to the subject matter. Therefore, when a request is overbroad, the Court should limit the question to a reasonable scope. (See Borse v. Sup.Ct. (Southern Pac. Co.) (1970) 7 Cal. App. 3d 286, 289.) Discovery statutes should be construed liberally in favor of discovery. (Williams v. Superior Court (Marshalls of CA, LLC) (2017) 3 Cal. 5th 531, 540-541.) Therefore, the Court will limit the scope of RFPs 26 and 27 to require the production of only non-privileged information. For objections of privilege, a privilege log is generally required. (CCP § 2031.240(c)(1).) Here, Plaintiff have not produced any privilege log.

The Court finds that the articles that Plaintiff Edith’s daughter sent to Plaintiff constitute a communication relating to e-vapor products and/or about Plaintiff Edith’s injuries. Plaintiffs do not contend that these articles are not responsive but seem to suggest that they may be “additional responsive documents that she may have seen in the past.” (Joint Statement p. 11: 18-19.) Given that Plaintiff Edith does not appear to dispute that these documents are responsive, she has failed to provide an explanation for why she refuses to produce these articles. The Court further notes that Plaintiff Edith does not assert that the articles sent to her by her daughter are privileged. Nor can the Court discern a reason why they would be privileged. Finally, Plaintiff Edith does not state that she is unable to comply and produce the articles sent to her by her daughter.

Plaintiff Edith is correct that her response to RFP 27 need not specify that it would produce these particular articles that she received from her daughter. However, Plaintiff Edith has not identified any reason why she has not complied with her response indicating that she would produce all non-privileged responsive documents within her possession. (CCP § 2031.320.) If Plaintiff Edith is unable to comply, she must serve a code-compliant response that includes certain mandatory statutory language under CCP section CCP § 2031.230.

Therefore, with regard to the articles that Plaintiff Edith received from her daughter, Plaintiff Edith is ordered within 15 days to produce the articles or to serve a further verified code-compliant response with respect to her inability to comply.

CONCLUSIONS AND ORDER

Based on the foregoing, Defendant Nu Mark LLC’s motion to compel further responses is GRANTED with regard to RFPs numbered 20, 26, and 27 as specified above.

Plaintiff Edith Anne Petrucci is ordered within 30 days to serve a verified, code-compliance response and produce all responsive photographs as to Request for Production Number 20 from December 29, 2013, to the present.

Plaintiff Edith is ordered to serve a verified, code-compliance response to RFPs 26 and 27and to produce within 15 days the articles that Plaintiff Edith received from her daughter.

defendant Fontem us, Inc.’s motion to compel plaintiff Robert petrucci’s further responses to special interrogatories and to compel Plaintiff edith petrucci’s further responses to request for production of focuments

On July 25, 2018, Fontem served Plaintiff Edith with its Requests for Production of Documents (‘RPD’). (Dailey RFP Decl. ¶ 2, Ex. A.) On October 5, 2018, Plaintiff Edith electronically served a response. (Id. at ¶ 3, Ex. B.) On November 19, 2018, Fontem filed the instant motion to compel further responses.

On July 25, 2018, Fontem served Plaintiff Robert with its first set of special interrogatories (‘SROG’). (Dailey SROG Decl. ¶ 2, Ex. A.) On October 5, 2018, Plaintiff Robert electronically served a response. (Id. at ¶ 3, Ex. B.) On November 19, 2018, Fontem filed the instant motion to compel further responses.

On March 29, 2019, this case was transfer to the current department, and all hearings dates were vacated and required to be rescheduled. (Notice of Case Reassignment 3/29/19.) On July 3, 2019, the Court notified the parties to refile moving papers with a new reservation number with the current department. (Nunc Pro Tunc Order, 7/9/19.)

On July 24, 2019, Fontem refiled the instant motions to compel further responses. Due to the COVID-19 pandemic, the hearings for these motions were continued from April 28, 2020, and May 12, 2020, to June 22, 2020. (Minute Orders 4/20/20, 4/27/20, 4/30/20.) On June 9, 2020, Plaintiffs filed an opposition to both the motion to compel further responses to the special interrogatories directed at Plaintiff Robert and to the request for production of documents directed at Plaintiff Petrucci. On June 15, 2020, Fontem filed replies as to both motions to compel further.

On January 29, 2020, the Court ordered that the parties file a joint statement for all future motions to compel further in the instant action. (Order filed 1/29/20.) On June 13, 2020, the parties filed a joint statement as to both motions.

Legal Standard

Requests for Production

Code of Civil Procedure section 2031.310 provides, in pertinent part, as follows:

(a)

(1)

(2)

(3)

(b)

(1)

(2) .

Interrogatories

Code of Civil Procedure section 2030.300 provides that “[o]n receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete; [or] (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate; [or] (3) An objection to an interrogatory is without merit or too general.” (CCP § 2030.300(a).)

Notice of the motion must be given within 45 days of service of the verified response, or upon a later date agreed to in writing. Otherwise, the propounding party waives any right to compel a further response. (CCP § 2031.310(c).) The motion must also be accompanied by a meet and confer declaration. (CCP § 2031.310(b)(2).)

The burden is on the responding part to justify any objection or failure fully to answer the interrogatories. (Fairmont Ins. Co. v. Sup.Ct. (Stendell) (2000) 22 Cal. 4th 245, 255.)

Discussion

Timeliness

A party making a motion to compel further responses must do so within 45 days of service of the verified response unless the parties agree in writing and specify a later date. (CCP § 2031.310(c); see also CCP § 2030.300(c).) The 45-day limit is jurisdictional as the Court has no authority to grant late-filed papers. (See Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) However, this 45-day limit is extended if served by mail, overnight delivery, fax, or electronically. (See CCP §§ 1010.6(a)(4), 1013.)

Here, Plaintiffs Edith and Robert served verified responses to the SROGs and RPDs on October 5, 2018, via electronic service. (Dailey RPD Decl. ¶ 3, Ex. B; Dailey SROG Decl. ¶ 3, Ex. B.) Service by electronic service extends the 45-day deadline by two court days. (CCP § 1010.6(a)(4)(B).) Accordingly, November 21, 2018, was the deadline to file a motion to compel further responses. Therefore, these motions filed on November 19, 2018, are timely.

Meet and Confer

“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.” (CCP § 2016.040.) Failure to do so is an abuse of discovery. (CCP § 2023.010(i).)

With regard to Fontem’s RPDs, Fontem’s meet and confer letter refers only to RPD Nos. 1-5, 7, 14, 16-17, 22, 26, 27, 29, 32 and 36. (Dailey RPD Decl., ¶ 4, Ex. D.) By contrast, Fontem’s motion to compel further is directed at RPDs Nos. 1-5, 7, 9-10, 12-13, 18-19, 21, 23-25, 28, 30-32, 34, and 36.[5] As Fontem has failed to provide evidence that it ever attempted to meet and confer in any manner as to RPDs Nos. 9-10, 12-13, 18-19, 21, 23, 24, 25, 28, 30, 31, and 34, the Court denies Fontem’s motion to compel further as to these RPDs.[6]

With regard to the motion to compel further SROGs, the Court notes that Fontem has adequately met and conferred as required. (Dailey SROG Decl., ¶ 4, Ex. D.)

Requests for Production

On March 26, 2020, Plaintiffs and Fontem conducted a meet and confer during which Plaintiffs agreed to amend Plaintiff Edith’s response to RPDs Nos. 1-5, 7 and 36. (RPD Opposition p. 2:1-6.) Plaintiffs state that they have since served their amended responses. (Ibid.) Plaintiff also states that Fontem has agreed to withdraw the motion as to RPD No. 32. As the Court has denied Fontem’s motion to compel further as to RPDs Nos. 9-10, 12-13, 18-19, 21, 23, 24, 25, 28, 30, 31, and 34 for lack of any meet and confer, there are no remaining RPDs at issue.

Special Interrogatories

On March 26, 2020, Plaintiffs and Fontem conducted a meet and confer during which Plaintiffs agreed to amend Plaintiff Robert’s response to SROG No. 5 and Fontem agreed to withdraw the motion to compel as to SROGs 6 and 7. (SROG Opposition pp.2:24-3:2.) Accordingly, the only remaining SROGs at issue are Nos. 8-10, and 18-19.

Special Interrogatories 8-10:

Each of these SROGs requests that Plaintiff Robert identify and provide contact information as to his children, parents and siblings, and prior spouses. In response, Plaintiff Robert lodged a series of objections, then stated the identity of these individual but did not provide contact information. The only remaining contention at issue is whether or not the contact information for these individuals is discoverable.

Overbroad, Vague, Burdensome, and Irrelevant Objections

“[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (CCP § 2017.010.) “[A]n implicit waiver of a party's constitutional rights encompasses only discovery directly relevant to the plaintiff's claim and essential to the fair resolution of the lawsuit.” (Vinson v. Superior Court (1987) 43 Cal. 3d 833, 842.) However, discovery should not be denied if the information sought has any relevance to the subject matter. “These rules are applied liberally in favor of discovery, and (contrary to popular belief), fishing expeditions are permissible in some cases.” (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546 [internal citation omitted].) Therefore, even if interrogatories are found to be “burdensome and oppressive,” the Court should not simply sustain the objection and thereby excuse any answer. Rather, the Court should limit the question to a reasonable scope. (Borse v. Superior Court (Southern Pac. Co.) (1970) 7 Cal. App. 3d 286, 289.)

Here this evidence is relevant to Plaintiff Robert’s claim for Loss of Consortium as these individuals are reasonably likely to have relevant information as to Plaintiff Robert’s ability to participate in and enjoy certain activities with Plaintiff Edith, including going to movies together, going for walks together, and going fishing together. With regard to third-party privacy of third parties, Plaintiff Robert has not established that the requests for production seek information that constitutes a serious invasion of privacy. (See Williams v. Superior Court (2017) 3 Cal.5th 531, 552 (“In Hill, we established a framework for evaluating potential invasions of privacy. The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. [Citation] The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations. [Citation]”).)

Accordingly, Fontem’s motion to compel Plaintiff Robert’s further responses to SROGs Nos. 8, 9, and 10 is GRANTED.

Special Interrogatories 18 and 19:

“STATE whether YOU have ever consulted with a therapist, counselor, or other professional or HEALTH CARE PROVIDER regarding about sexual dysfunction or sexual incompatibility during your marriage to Edith Anne Petrucci.” (SROG 18.)

“For each consultation identified in Interrogatory No. 18, IDENTIFY each such therapist, counselor, other professional, or HEALTH CARE PROVIDER, provide the dates, and DESCRIBE the circumstances of each such consultation.” (SROG 19.)

Plaintiff Robert objects that these questions invade his privacy. Under the physician-patient privilege “the patient, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and physician[.]” (Evid. Code, § 994.) This privilege bars even discovery of relevant information unless it is waived. However, “[t]he whole purpose of the privilege is to preclude the humiliation of the patient that might follow disclosure of his ailments. When the patient himself discloses those ailments by bringing an action in which they are in issue, there is no longer any reason for the privilege.” (City & County of San Francisco v. Superior Court In and For City and County of San Francisco (1951) 37 Cal.2d 227, 232.)

Here, Fontem contends that by bringing a cause of action for Loss of Consortium, Plaintiff Robert has placed any sexual dysfunction or sexual incompatibility at issue and waived this privilege. The Court agrees. In fact, the Second Amended Complaint itself expressly alleges loss of “sexual relations.” (SAC ¶ 186.) Though Plaintiffs argue that they forego any claim for the loss of the enjoyment of sexual relations under the Loss of Consortium cause of action, Plaintiffs fails to present any evidence to support this contention. Plaintiffs’ mere argument is insufficient to demonstrate withdrawal of the claim for lost sexual relations. Unless and until Plaintiffs withdraw their claim for loss of sexual relations, SROGs 18 and 19 are directly relevant. Therefore, Fontem’s motion to compel further responses as to SROGs 18 and 19 is GRANTED. If Plaintiffs wish to withdraw their claim for loss of sexual relations in order to avoid Plaintiff Robert’s compelled further response to SROGs 18 and 19, Plaintiffs may file and serve a written notice of withdrawal of their claim for loss of sexual relations within 20 days of notice of this order.

CONCLUSIONS AND ORDER

Based on the foregoing, Defendant Fontem US Inc.’s motion to compel Plaintiff Edith Petrucci’s further response to request for production of documents is DENIED.

Defendant Fontem US Inc.’s motion to compel Plaintiff Robert Petrucci’s further responses to special interrogatories is GRANTED as to Special Interrogatories 8, 9, 10, 18, and 19. Plaintiff Robert Petrucci is to serve further, verified, code-complaint responses to Special Interrogatories 8, 9, 10, 18, and 19, without objection within 20 days of notice of this order. If Plaintiffs wish to withdraw their claim for loss of sexual relations in order to avoid Plaintiff Robert’s compelled further response to SROGs 18 and 19, Plaintiffs may file and serve a written notice of withdrawal of their claim for loss of sexual relations within 20 days of notice of this order.

Moving Parties are to provide notice.


[1] The Court notes that Nu Mark has stated that it is willing to limit the request to the last twenty years as the Court has done with medical requests as to Plaintiff Edith. However, with regard ot Plaintiff Edith’s claims her medical condition is a core claim of her claim. Here Plaintiff Robert’s physical condition health is only relevant as to any loss of consortium due to Plaintiff Ediths illness during their marriage.

[2] Pursuant to the parties’ March 6, 2020 Joint Statement, RFP Nos. 19, and 21-25 are no longer in dispute.

[3] Initially, the date of when the marriage took place was unclear. Plaintiffs have since filed a supplemental brief on March 23, 2020, attaching the marriage certificate which clarified that the marriage occurred on December 29, 2013. (Plaintiff Supplemental Brief 3/23/20, Ex. A.)

[4] It is not entirely clear what Plaintiff Edith means by this objection. During her deposition, Plaintiff Edith also testified that she did some online research and found an article that discussed the adverse health consequences of using e-vapor products. (McCormick Decl. Ex A. p. 332: 1-8.) As the articles that Plaintiff saw on the internet were not sent to or from Plaintiff by any other individual, the Court finds that they do not constitute “communications” covered by RFP 26 or 27. Thus, to the extent that Nu Mark is contending that Plaintiff Edith must produce the articles she found through her own online research, the Court agrees with Plaintiffs that as phrased, RFPs 26 and 27 do not require the production of these articles that were not sent to or from Plaintiff Edith.

[5] The Separate Statement identifies the RPDs as RPDs Nos. 1-5, 7, 9-10, 12-13, 18-19, 21, 23-25, 28, 30-32, 34, and 36. The memorandum and notice fail to specify which interrogatories are at issue. (Rules of Court, Rule 3.1345(d).)

[6] (See Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1436-39 [finding that heated discussions during a deposition did not constitute a “serious effort at negotiation and informal resolution” and finding that trial court acted in excess of its jurisdiction in granting the motion to compel]; See also Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 433–434 [clarifying that “Townsend can be seen as an example of a failure to make any real effort at informal resolution, a failure so egregious as to justify immediate and outright denial of further discovery.”)

Case Number: BC695450    Hearing Date: March 17, 2020    Dept: 26

GIVEN THE CURRENT CORONAVIRUS CRISIS, THE STANLEY MOSK COURTHOUSE WILL BE CLOSED TO THE PUBLIC ON MARCH 17, 18, AND 19, 2020. NO CASES WILL BE CALLED IN DEPARTMENT 26 ON THESE DATES.

Defendants 7-Eleven and Nu Mark’s Motion For Order Governing Retention And Use Of Pathology Materials During Discovery and Defendant Nu Mark’s Motion To Compel Plaintiff Edith Anne Petrucci’s Further Responses To Request For Production Set Two are continued to April 30, 2020 at 8:30 am in Department 26.

When the Stanley Mosk Courthouse reopens and until further notice, telephonic appearances via CourtCall will be permitted for all matters except trials and evidentiary hearings.

Court Clerk to give notice to the moving party who is directed to give notice to all other parties.

Case Number: BC695450    Hearing Date: January 28, 2020    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Edith anne petrucci and ROBERT PETRUCCI,

Plaintiffs,

v.

7-ELEVEN DISTRIBUTION COMPANY, et al.,

Defendants.

Case No.: BC695450

Hearing Date: January 28, 2020

[TENTATIVE] order RE:

defendant Nu Mark llc’s motion to compel further responses to special interrogatories and request for production

Background

On February 26, 2018, Edith Anne Petrucci (“Plaintiff Edith”) and Robert Petrucci (jointly “Plaintiffs”) commenced this action against approximately seventeen companies including moving party Nu Mark LLC. (“Nu Mark”), and one individual for causing injuries to Edith Anne Petrucci arising out of the use of e-cigarettes and e-vaporizers.

On July 23, 2018, Nu Mark served Plaintiff Edith with its first set of special interrogatories, which included twenty questions, and Requests for Production, which requested 18 categories of documents. (See Defendant Nu Mark’s Motion to Compel Further Responses to Special Interrogatories and Request for Production, Ex. A-B.)

On October 5, 2018, Plaintiff Edith served her verified responses to these special interrogatories and requests for production. (Id. at Ex. E-F.)

On October 17, 2018, Defendant Nu Mark sent a meet and confer letter to discuss thirteen of the special interrogatory responses and fourteen of the requests for production. (Id. at Ex. H.)

On October 26, 2018, Plaintiff Edith responded. (Id. at Ex. I.) On November 9, 2018, Plaintiff Edith supplemented her responses. (Id. at Ex. J.)

On November 19, 2018 – within 45 days of receiving verified, supplemental responses to the special interrogatories – Nu Mark filed the instant motion to compel further.

On March 1, 2019, with multiple motions on calendar to compel further responses, the Court directed Plaintiffs to meet and confer on a stipulation for scheduling an informal discovery conference to address these matters. (Minute Order 3/1/2019.)

On March 26, 2019, defendant Nu Mark filed a statement for the informal discovery conference.

On March 29, 2019, the Court ( the Honorable Rupert Byrdsong) recused itself on this case due to a conflict of interest. The case was transferred to Department 26, and the informal discovery conferences were canceled. (Minute Order 3/29/2019.)

Due to an inability to transfer CRS reservations from the previously assigned department, on July 9, 2019, through an amended minute order of July 3, 2019, the Court requested that the parties refile all pending motions that had been calendared in Department 28 with new court reservation system reservation numbers. (Nunc Pro Tunc Order.)

On July 29, 2019, Defendant Fontem refiled this motion with the current hearing date of January 28, 2020. On January 15, 2020, Plaintiff Edith filed her opposition. On January 21, 2020, Defendant Nu Mark filed a reply.

Legal Standard

Special Interrogatories Legal Standard

CCP § 2030.300 provides that “[o]n receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete; [or] (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate; [or] (3) An objection to an interrogatory is without merit or too general.” (Code Civ. Proc., § 2030.300(a).)

Notice of the motion must be given within 45 days of service of the verified response, or upon a later date agreed to in writing. Otherwise, the propounding party waives any right to compel a further response. (CCP § 2031.310(c).) The motion must also be accompanied by a meet and confer declaration. (CCP § 2031.310(b)(2).)

The burden is on the responding part to justify any objection or failure fully to answer the interrogatories. (Fairmont Ins. Co. v. Sup.Ct. (Stendell) (2000) 22 Cal. 4th 245, 255.)

Requests for Production Legal Standard

CCP § 2031.310 provides, in pertinent part, as follows:

(a)

(1)

(2)

(3)

(b)

(1)

(2) .

Discussion

Timeliness

“All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days [before the hearing].” (CCP § 1005(b).) Plaintiff Edith filed her opposition only eight court days before the hearing, thus rendering her opposition late. On this occasion, the Court will proceed to address the merits of the opposition to the motion to compel further despite the untimeliness of the meet and confer. However, for any future motions, the Court cautions that it will decline to consider an untimely brief will.

Meet and Confer

“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.” (CCP § 2016.040.)

This requirement has been satisfied. (McCormick Decl., ¶¶ 6-9.)

Special Interrogatories

The only responses at issue for Defendant Nu Mark’s first set of Special Interrogatories are the responses to special interrogatories 1, 2, 4, 6, 7, 8, 9, 10, 11, 14 and 16.[1]

On October 5, 2018, Plaintiff Edith responded to the special interrogatories with general objections and a list of boilerplate objections. Plaintiff Edith’s boilerplate objections are without merit. (See C.C.P. §2030.300(a)(3).) Moreover, Plaintiff Edith does not meet her burden of justifying the objections. (See Fairmont Insurance Company v. Superior Court (2000) 22 Cal.4th 245, 255.) For example, with regard to Plaintiff Edith’s invasion of privacy objection, the Court finds, in balancing the competing interests, Nu Mark’s compelling interest in seeking information relevant to Plaintiff’s claimed injuries outweighs Plaintiff Edith’s right to privacy with respect to her health information. (See Williams v. Superior Court (2017) 3 Cal.5th 531, 552 (“In Hill, we established a framework for evaluating potential invasions of privacy. The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. [Citation] The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations. [Citation]”).)

The Court will proceed to address only the objections that are of contention between the parties based on this motion and the corresponding opposition. As the responses of special interrogatories have been grouped by the parties, the Court will adopt the parties’ grouping of the responses.

Special Interrogatories 1-2:

“Identify YOUR relatives, including, but not limited to, spouses, children, parents, brothers, sisters, aunts, uncles, cousins, and grandparents, and, for each such relative, provide his or her date of birth, place of birth, date of death (if applicable), cause of death (if applicable), and YOUR relationship to each of them.” (Special Interrogatory 1.)

“For each relative identified in response to Interrogatory No. 1, identify whether he or she has used any E-VAPOR PRODUCT or smoked cigarettes, the time period of use, and any form of cancer, pulmonary or respiratory disease, or smoking-related illness, injury, disease, or medical condition that relative has or had.” (Special Interrogatory 2.)

Plaintiff Edith contends that these questions are overbroad in scope, are improperly compound, and invade the privacy of third persons.

Compound

“No specially prepared interrogatory shall contain subparts, or a compound, conjunctive, or disjunctive question” (CCP § 2030.060(f).) Since any question using an ‘and’ or ‘or’ could be compound and conjunctive this “‘rule should probably apply only where more than a single subject is covered by the question.’” (Clement v. Alegre, (2009) 177 Cal. App. 4th 1277, 1291) [quoting Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, ¶ 8:978.1, p. 8F–21] [emphasis in original].)

Because each of the special interrogatories here contains only one subject, specifically the health history of Plaintiff Edith Anne Petrucci’s family, the Court finds that they are not compound.

Scope

“[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (CCP § 2017.010.) “[A]n implicit waiver of a party's constitutional rights encompasses only discovery directly relevant to the plaintiff's claim and essential to the fair resolution of the lawsuit.” (Vinson v. Superior Court (1987) 43 Cal. 3d 833, 842.) However, discovery should not be denied if the information sought has any relevance to the subject matter. Therefore, even if interrogatories are found to be “burdensome and oppressive,” the Court should not simply sustain the objection and thereby excuse any answer. Rather, the Court should limit the question to a reasonable scope. (Borse v. Sup.Ct. (Southern Pac. Co.) (1970) 7 Cal. App. 3d 286, 289.)

Discovery statutes should be construed liberally in favor of discovery. (Williams v. Sup.Ct. (Marshalls of CA, LLC) (2017) 3 Cal. 5th 531, 540-541.) As such Plaintiff, Edith fails to cite any authority that the information relating to these third parties such as an address, date of birth, and date of death, is privileged. Therefore, the Court finds that the scope is not overbroad or improperly invasive.

Nonetheless, Nu Mark’s use of the term “including, but not limited to” in special interrogatory 1 leaves uncertainty as to what other relatives Nu Mark is requesting that Plaintiff identify. As indicated in both the opposition and the reply, the Court has ruled on a substantially similar request for another defendant, and both parties will accept a ruling consistent with that. (See Opposition p.3:20-23; see also Reply p. 2:12-19.) As such, special interrogatory 1 is modified to require that Plaintiff identify only her spouses, children, parents, brothers, sisters, aunts, uncles, cousins, grandparents, great grandparents, and, for each such relative, provide his or her date of birth, place of birth, date of death (if applicable), cause of death (if applicable), and Plaintiff’s relationship to each of them.

Plaintiff Edith is to provide verified, further code-compliant responses to special interrogatories 1 and 2 as limited above.

Special Interrogatory 4

Special Interrogatory 4 requests that Plaintiff “[i]dentify each of YOUR current and former employers by stating the name of each employer, each job held by YOU, the job title, salary or rate of payment, dates employed, and the nature of the duties YOU performed.”

Plaintiff Edith contends that this request is overbroad but has substantively responded by providing employment information back to the year 2000. In reply, Defendant Nu Mark contends that this information is important to find other possible causes of Plaintiff’s alleged injuries in this case.

As discussed above, discovery statutes should be construed liberally in favor of discovery. (Williams, supra, 3 Cal. 5th at 540-541.) Plaintiff Edith fails to cite any authority that the information relating to her employment history is privileged. However, the Court agrees with Plaintiff that as to Plaintiff’s salary, the special interrogatory should be limited to require only disclosure of Plaintiff’s salary during her employment with each employer up to 12 years in the past. With this modification, the Court finds that the scope of special interrogatory 4 is not overbroad.

Plaintiff Edith is to provide verified, further code-compliant responses to special interrogatory 4 with the modification that as to Plaintiff’s salary, Plaintiff need only disclose her salary during her employment with each employer up to 12 years in the past.

Special Interrogatories 6-7

“For each injury, illness, disease, or medical condition identified in response to Interrogatory No. 5, identify every HEALTH CARE PROVIDER (“HEALTH CARE PROVIDER” as used in these Interrogatories shall be construed broadly to include any individual engaged in the healing arts, including, but not limited to, any doctor, physician, osteopath, naturopath, dietician, psychiatrist, psychologist, dentist, nurse, surgeon, physician’s assistant, physical therapist, substance abuse counselor, acupuncturist, hypnotherapist, or any other similar or related person) who examined, treated, evaluated, or consulted with YOU or YOUR HEALTH CARE PROVIDER(S), by stating their name and address, the dates of care or treatment, nature of care or treatment, and their medical specialty.” (Special Interrogatory 6.)

“For each injury, illness, disease, or medical condition identified in response to Interrogatory No. 5, identify every HEALTH CARE FACILITY (“HEALTH CARE FACILITY” as used in these Interrogatories includes, but is not limited to, an ambulatory surgical center, hospice, nursing home, hospital, diagnostic imaging center, a freestanding or hospital-based therapy center, clinical laboratory, home health agency, cardiac catheterization laboratory, medical equipment supplier, alcohol or chemical dependency treatment center, physical rehabilitation center, lithotripsy center, ambulatory care center, pharmacy, mental institutions, and all other institutions, organizations, and facilities where the healing arts are practiced) at which YOU were hospitalized or received care or treatment, by stating the name and address of each, dates of care or treatment, and nature of care or treatment received from each.” (Special Interrogatory 7.)

Plaintiff contends that she has properly responded by referring to already produced medical records. Plaintiff contends that a further response would require Plaintiff to make a compilation, abstract, audit, or summary of documents referring to Civil Code of Procedure § 2030.230.

Code of Civil Procedure section 2030.230 provides that “[i]f the answer to an interrogatory would necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from the documents of the party to whom the interrogatory is directed, and if the burden or expense of preparing or making it would be substantially the same for the party propounding the interrogatory as for the responding party, it is a sufficient answer to that interrogatory to refer to this section and to specify the writings from which the answer may be derived or ascertained.” However, “[t]his exception applies only if the summary is not available and the party specifies the records from which the information can be ascertained. A broad statement that the information is available from a mass of documents is insufficient.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 784.)

Plaintiff Edith's mere reference to a mass of documents provided earlier is insufficient. However, the Court agrees that Plaintiff need not identify the nature of care or treatment rendered by each health care provider or at each health care facility as this information is readily available from the specified documents and the health records that Plaintiff has produced in response to the requests for production, and Plaintiff will also be required to identify the name and address of each provider and facility, the dates of care or treatment, and the provider’s medical specialty, all of which will enable Defendant to obtain the treatment records directly from the providers and facilities, and which will be the most accurate reflection of the nature of care and treatment provided.

Plaintiff Edith is to provide verified, further code-compliant responses to special interrogatories 6-7 with the modification that Plaintiff need not identify the nature of care or treatment provided by each health care provider or facility.

Special Interrogatory 8-10

“Identify all mental or physical illnesses, injuries, diseases, and/or medical conditions suffered or incurred by YOU other than those identified in response to Interrogatory No. 5.” (Special Interrogatory 8.)

“For each mental or physical illness, injury, disease, or medical condition identified in response to Interrogatory No. 8, identify every HEALTH CARE PROVIDER who examined, treated, evaluated, or consulted with YOU or YOUR HEALTH CARE PROVIDER(S), by stating their name and address, the dates of care or treatment, nature of care or treatment, and their medical specialty.” (Special Interrogatory 9.)

“For each mental or physical illness, injury, disease, or medical condition identified in response to Interrogatory No. 8, identify every HEALTH CARE FACILITY at which YOU were hospitalized or received care or treatment by stating the name and address of each, dates of care or treatment, and nature of care or treatment received from each.” (Special Interrogatory 10.)

Defendant Nu Mark states in its reply that it is willing to narrow special interrogatory 8 to require Plaintiff to “identify all diseases, injuries, illnesses, and other medical conditions relating to the respiratory and/or cardiovascular system in the last twenty years for which she is not seeking recovery.” (Reply p.4:13-15.)[2] The Court finds special interrogatories 8-10, as modified pursuant to Defendant’s proposal, to be proper in scope.

Plaintiff Edith is to provide verified, further code-compliant responses to special interrogatories 8-10 with the limitation as stated above. As noted previously, a mere reference to a mass of provided documents is not a code complaint response.

Special Interrogatory 11

“State the name and address of each HEALTH CARE PROVIDER, pharmacy, or other establishment where YOU obtained any prescriptions or medications.” (Special Interrogatory 11.)

Plaintiff contends that this is overbroad by being unlimited in time frame and unlimited in scope by including prescription history unrelated to the injuries alleged in this suit. The Court has stated before that because medications and treatments may lead to complications many years after initial exposure, they are relevant to the case at hand. (Order 12/14/19, at p.6.) Further, Defendant Nu Mark in its reply has stated that it is willing to reduce the timeframe to the last twenty years.

Plaintiff Edith is to provide verified, further code-compliant responses to special interrogatory 11 with the temporal limitation of the last 20 years.

Special Interrogatory 14

“Identify every claim made by YOU for benefits under any insurance plan or policy, or governmental program, including Social Security, Medicaid, Medicare, worker’s compensation, or unemployment compensation, by stating the date, place, and nature of the claim; the person, firm or corporation to whom the claim was submitted; the claim number; and the ultimate disposition of the claim, including the amount of benefits, if any, YOU received for each claim.” (Special Interrogatory 14.)

Plaintiff Edith states that this request is overbroad and seeks privileged and improper information. Defendant Nu Mark in its reply has agreed to limit this interrogatory to government or insurance claims she has made relating to her respiratory or cardiovascular system during the last twenty years. (Reply p.5: 21-23.)

With this limitation, the Court finds that this request is now proper. Accordingly, Plaintiff Edith is to provide verified, further code-compliant responses to special interrogatory 14 with the above-stated limitation.

Requests for Production

The only responses at issue for Defendant Nu Mark’s Requests for Production are the responses to Requests for Production 1, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, and 18.[3]

Requests for Production No. 1, 4

At the hearing on this motion, Plaintiff Edith indicated that she is willing to produce her birth certificate and marriage certificate within 10 days of the hearing. Defendant stated that as long as Plaintiff Edith produces her birth certificate and marriage certificate within 10 days, Defendant will be satisfied that no further response is necessary. In light of the parties’ stipulation in court, the motion is moot as to RPD Nos. 1 and 4.

Request Nos. 5, 7

“ALL DOCUMENTS RELATING TO YOUR financial history, including but not limited to, securities accounts, bank accounts, loans, and credit card statements, for the last 20 years.” (Request No. 5)

“ALL DOCUMENTS RELATING TO any welfare benefits or claims, worker’s compensation benefits or claims, social security benefits or claims, health or disability benefits or claims, or any other governmental benefits or claims that were provided to YOU or made by or on YOUR behalf.” (Request No. 7.)

Plaintiff argues that these requests are overbroad due to their impermissible scope and timeframe. With regard to Request No. 7, Defendant Nu Mark has agreed to limit this request to just those claims related to the respiratory or cardiovascular system over the last twenty years. With this stated limitation, the Court finds that Request No. 7 is now appropriate.

With regard to Request No. 5, Defendant Nu Mark has agreed to narrow this Request to the last 10 years for records related to Plaintiff Edith’s securities accounts, bank accounts, loans, and credit card statements, and the last 20 years for records related to Plaintiff Edith’s income. However, these proposed time limitations do not cure the minimal relevance of such financial records to the extent that they do not relate to payment of medical expenses. Therefore, the Court will narrow Request No. 5 to require Plaintiff Edith to produce documents evidencing Plaintiff Edith’s payment of medical expenses arising out of the injuries allegedly caused by Defendant, including securities accounts, bank accounts, loans, and credit card statements. With this limitation, the Court finds that Request No. 5 is now proper in scope.

Accordingly, Plaintiff Edith is ordered to serve further code-compliant responses to these requests with these modifications.

Request No. 8

“ALL DOCUMENTS RELATING TO YOUR employment history, including place, date, and type of employment; personnel and/or human resources records; description of job functions; safety, accident, disciplinary, and medical treatment reports; and records relating to military service, if any.” (Request No. 8.)

Plaintiff contends that this information is outside the scope of discovery as overbroad as Plaintiff’s employment history is not relevant to plaintiff’s claim for injury. Defendant Nu Mark contends that this information is relevant to prove if there are other possible causes to Plaintiff Edith’s alleged injuries.

As discussed above, discovery statutes should be construed liberally in favor of discovery. (Williams, supra, 3 Cal. 5th at 540-541.) Plaintiff Edith fails to cite any authority that the information relating to her employment history is privileged. However, the Court agrees with Plaintiff that with regard to human resources records and disciplinary reports, Plaintiff need only produce documents that relate to job safety issues, and with regard to medical treatment reports, Plaintiff need only produce documents that relate to medical treatment for cardiovascular and pulmonary issues. With these modifications, the Court finds that the scope is not overbroad.

Accordingly, Plaintiff Edith is to provide a further code-complaint response to this request for production with the modifications noted above.

Request No. 9

“ALL DOCUMENTS, including but not limited to, claims and application forms RELATING TO any life or health insurance policies, or applications for such policies, under which YOU are or were insured.” (Request No. 9.)

Plaintiff argues that this request is overbroad due to there impermissible scope and timeframe. Defendant Nu Mark has stated that it is willing to narrow this request to just those “related to the respiratory or cardiovascular system over the last twenty years.”

With this stated limitation the Court finds that this request is now appropriate. Accordingly, Plaintiff Edith is ordered to serve further code-compliant responses to this request.

Request No. 11, 12, 13, 14

Plaintiff Edith argues that she has fully responded to each of these requests by stating identically each time that “[a]fter having conducted a diligent search and reasonable inquiry, responding party is unable to comply with this request as she is not in possession, custody or control of documents responsive to this demand.” (Response to Request Nos. 11-14.) This is not a code-compliant response under CCP § 2031.230 as the response does not “specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party.” (CCP § 2031.230.) Nor does it “set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” (Ibid.)

Accordingly, Plaintiff Edith is to serve further code-compliant responses to each of these requests for production., verified,

Request Nos. 17 and 18

“ALL DOCUMENTS that identify the she cause of injury for which recovery is sought in this lawsuit, including but not limited to hospital records and medical records.” (Request No. 17.)

“ALL DOCUMENTS RELATING TO YOUR responses to NU MARK’s Special Interrogatories to Plaintiff Edith Anne Petrucci, served concurrently.” (Request No. 18.)

Plaintiff has stated that she has complied with this request by stating that it will comply and that she has complied by referencing other documents. However, this fails to comply with Code of Civil Procedure section 2031.220, which requires that “[a] statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.” (CCP § 2031.220 [emphasis added].) Plaintiff has failed to use the mandatory language verbatim of section 2031.220. As such, Plaintiff’s response does not make clear whether Plaintiff will be producing all or part of the responsive documents in her current possession, custody or control.

Accordingly, Plaintiff Edith is to provide further code-compliant responses to these requests for production.

CONCLUSIONS AND ORDER

For the foregoing reasons discussed above, Defendant Nu Mark’s Motion to Compel Further Responses to Special Interrogatories is GRANTED IN PART with respect to special interrogatories 1, 2, 4, 6-11, and 14 and with the stated limitations above to special interrogatories 1, 2, 4, 6-10, 11, and 14.

Plaintiff Edith Anne Petrucci is ordered to serve verified, further, code-compliant responses to Nu Mark’s special interrogatories 1, 2, 4, 6-11, and 14 without objections within 30 days.

In light of the parties’ stipulation in court, Defendant Nu Mark’s Motion to Compel Further responses to Request for Production is moot as to RPD Nos. 1 and 4. Plaintiff Edith Anne Petrucci has indicated that she will produce her birth certificate and marriage certificate within 10 days.

Defendant Nu Mark’s Motion to Compel Further Responses to Request for Production is GRANTED IN PART with respect to requests 5, 7-9, 11-14, and 17-18 and with the stated limitations above to requests for production 5, 7, 8, and 9.

Plaintiff Edith Anne Petrucci is ordered to serve verified, further, code-compliant responses to Nu Mark’s request for production 5, 7-9, 11-14, and 17-18, without objections within 30 days.

The Court notes that there are twelve additional motions to compel further set for hearing in this case, many of which appear to involve the same or substantially similar issues as have been litigated in the instant motions to compel further and Fontem’s motion to compel further heard on December 24, 2019. The Court is of the view that the parties should be able to resolve the remaining discovery issues without court intervention.

Accordingly, the Court hereby orders Plaintiffs to serve the instant order and the Court’s signed order filed on December 24, 2019 on all parties to this action. The Court further orders the parties to meet and confer face-to-face or by telephone regarding the disputed discovery items with a copy of the instant order and the Court’s December 24, 2019 order in front of them. If the parties fully resolve the motion, the moving party must promptly take the motion off-calendar via the Court Reservation Management System and by contacting the Court.

If the meet and confer does not resolve the motions in their entirety, the parties must file one joint statement of items remaining in dispute for each motion no later than 10 days before the hearing date.[4] For each discovery item still in dispute, the joint statement must include: (1) the text of the request or discovery item in dispute; (2) the response, answer, or objection, and any further responses already provided; (3) the moving party’s factual and legal reasons for compelling further responses, answers or production, including any reasons why discovery should be more broad than how the Court has already ruled in its December 24, 2019 order and the instant order; (4) the non-moving party’s factual and legal reasons why a further response should not be compelled, including any reasons why discovery should be more narrow than how the Court has already ruled in its December 24, 2019 order and the instant order; and (5) all other information identified in California Rule of Court 3.1345.

The joint statement must list the remaining issues in dispute, item by item, and include all of the information required above (categories 1-5, inclusive) immediately below the heading for that item of discovery. Following the listing of issues, positions and other relevant information, the parties must jointly disclose the efforts undertaken to resolve each disputed issue and why those efforts failed.

For any matters withheld on the basis of a privilege or other protection, a privilege log must be prepared, setting forth the title, subject, and nature of the claim of privilege with respect to each document. The privilege log should also include a declaration generally detailing the underlying factual predicates for each claimed privilege.

Counsel are each ordered to personally appear at 8:30 am on the continued hearing date (i.e., pursuant to CRC 3.670(e)(2) no telephonic appearance will be permitted) to meet and confer in the courthouse with the aim of fully resolving any remaining differences. Counsel must bring with them whatever materials are needed and be prepared to spend whatever time is needed after the matter is first called to make this court-ordered meet and confer session productive and successful.

Willful disobedience of the Court’s orders by failing to meet and confer in good faith will result in sanctions imposed under CCP § 2023.020 or, alternatively, under CCP § 177.5.

Plaintiffs are to serve notice of this order and the signed December 24, 2019 order on all parties and to file proof of service of such.

DATED: January 28, 2020 ___________________________

Elaine Lu

Judge of the Superior Court


[1] The Court notes that Nu Mark has withdrawn the motion with regard to special interrogatory 16. (Reply ¶ 1:19-22.)

[2] If in the course of ongoing discovery Plaintiff Edith identifies other organ systems that have been injured as a result of Nu Mark’s conduct, Nu Mark may move at that time to broaden the scope of discovery to include those other organ systems to which Plaintiff Edith claims new injuries.

[3] The Court notes that Defendant Nu Mark has withdrawn this motion with regard to Requests for Production No. 10, 15, and 16.

[4] For the motion to compel further set for February 11, 2020, the parties must file one joint statement of items remaining in dispute for each motion no later than 4 days before the February 11, 2020 hearing date.

Case Number: BC695450    Hearing Date: December 24, 2019    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Edith anne petrucci and ROBERT PETRUCCI,

Plaintiffs,

v.

7-ELEVEN DISTRIBUTION COMPANY, et al.,

Defendants.

Case No.: BC695450

Hearing Date: December 24, 2019

[TENTATIVE] order RE:

defendant fontem us, inc.’s motion to compel further responses to special interrogatories (set 1: 1-16)

Background

On February 26, 2018, Edith Anne Petrucci (“Plaintiff Edith”) and Robert Petrucci (jointly “Plaintiffs”) commenced this action against approximately seventeen companies including moving party Fontem US, Inc. (“Fontem”), and one individual for damages to Edith Anne Petrucci arising out of the use of e-cigarettes and e-vaporizers.

On July 25, 2018, Fontem served Plaintiff Edith with its first set of special interrogatories, which included sixteen questions. (See Defendant Fontem’s Motion to Compel further Responses to Special Interrogatories Set 1, Exhibit A.)

On October 5, 2018, Plaintiff Edith served her verified responses to these special interrogatories. (Id. at Exhibit B.)

On October 22, 2018, Defendant Fontem sent a meet and confer letter to discuss eight of the special interrogatory responses. (Id. at Exhibit D.)

On October 29, 2018, Plaintiff Edith responded. (Id. at Exhibit E.) On November 9, 2018, Plaintiff Edith supplemented her responses. (Id. at Exhibit F.)

On November 19, 2018 – within 45 days of receiving verified responses to the special interrogatories -- Fontem filed this motion to compel further.

On March 1, 2019, with multiple motions on calendar to compel further responses the Court directed Plaintiffs to meet and confer on a stipulation for a stipulation for scheduling an informal discovery conference to address these matters. (Minute Order 3/1/2019.)

On March 26, 2019, defendants Costco Wholesale Corporation and Fontem US, Inc. filed a joint statement with Plaintiffs for the informal discovery conference.

On March 29, 2019, the Court recused itself on this case due to a conflict of interest. The case was transferred to Department 26, and the informal discovery conferences were cancelled. (Minute Order 3/29/2019.)

On July 9, 2019, through an amended minute order, of July 3, 2019, the Court ordered that all pending motions that had been calendared in Department 28 had to be refiled with new court reservation system reservation numbers. (Nunc Pro Tunc Order.)

On July 24, 2019, Defendant Fontem refiled this motion with the current hearing date of December 24, 2019.

On December 11, 2019, Plaintiff Edith filed her opposition. On December 17, 2019, Defendant Fontem filed a reply.

Legal Standard

CCP § 2030.300 provides that “[o]n receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete; [or] (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate; [or] (3) An objection to an interrogatory is without merit or too general.” (Code Civ. Proc., § 2030.300(a).)

Notice of the motion must be given within 45 days of service of the verified response, or upon a later date agreed to in writing. Otherwise, the propounding party waives any right to compel a further response. (CCP § 2031.310(c).) The motion must also be accompanied by a meet and confer declaration. (CCP § 2031.310(b)(2).)

The burden is on the responding part to justify any objection or failure fully to answer the interrogatories. (Fairmont Ins. Co. v. Sup.Ct. (Stendell) (2000) 22 Cal. 4th 245, 255.)

Discussion

Of Defendant Fontem’s first set of Special Interrogatories, the only replies in question are for 1, 2, 3, 4, 8, 14, 15, and 16. Plaintiff Edith has provided supplemental responses to questions 4, 8, and 16.

On October 5, 2018, Plaintiff Edith responded to the special interrogatories with general objections and a list of boilerplate objections. Plaintiff Edith’s boilerplate objections are without merit. (See C.C.P. §2030.300(a)(3).) Moreover, Plaintiff Edith does not meet her burden of justifying the objections. (See Fairmont Insurance Company v. Superior Court (2000) 22 Cal.4th 245, 255.) For example, with regard to Plaintiff Edith’s invasion of privacy objection, the Court finds, in balancing the competing interests, Fontem’s compelling interest in seeking information relevant to Plaintiff’s claimed injuries outweighs Plaintiff Edith’s right to privacy with respect to her health information. (See Williams v. Superior Court (2017) 3 Cal.5th 531, 552 (“In Hill, we established a framework for evaluating potential invasions of privacy. The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. [Citation] The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations. [Citation]”).)

The court will proceed to address only the objections that are of contention between the parties based on this motion filed and the corresponding opposition. As the responses of special interrogatories have been grouped by the parties, the Court will adopt the parties’ grouping of the responses.

Special Interrogatories 1-3:

Special Interrogatory 1 requests that Plaintiff “STATE all diseases, injuries, illnesses, and other medical conditions for which YOU have been treated by a HEAL TH CARE PROVIDER or at a HEAL TH CARE FACILITY in the last twenty (20) years.”

Special Interrogatory 2 requests that Plaintiff “[f]or each disease, injury, illness, or other medical condition stated in response to Interrogatory No. 1, IDENTIFY the HEALTH CARE PROVIDER and/or HEALTH CARE FACILITY that provided treatment for that disease, injury, illness, or other medical condition, as well as the date and nature of such treatment.” (Special Interrogatory 2.)

Special Interrogatory 3 requests that Plaintiff “[f]or each disease, injury, illness, or other medical condition stated in response to Interrogatory No. 1, IDENTIFY all DOCUMENTS RELATED TO such treatment.” (Special Interrogatory 3.)

Plaintiff Edith argues that these questions are overbroad in scope and are improperly compound.

Compound

“No specially prepared interrogatory shall contain subparts, or a compound, conjunctive, or disjunctive question” (CCP § 2030.060(f).) Since any question using an ‘and’ or ‘or’ could be compound and conjunctive this “‘rule should probably apply only where more than a single subject is covered by the question.’” (Clement v. Alegre, (2009) 177 Cal. App. 4th 1277, 1291) [quoting Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, ¶ 8:978.1, p. 8F–21] [emphasis in original].)

Because the special interrogatories here contain only one subject specifically medical conditions of Plaintiff Edith Anne Petrucci, the Court finds that they are not compound.

Scope

“[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (CCP § 2017.010.) “[A]n implicit waiver of a party's constitutional rights encompasses only discovery directly relevant to the plaintiff's claim and essential to the fair resolution of the lawsuit.” (Vinson v. Superior Court (1987) 43 Cal. 3d 833, 842.) However, discovery should not be denied if the information sought has any relevancy to the subject matter. Therefore, even if interrogatories are found to be “burdensome and oppressive,” the Court should not simply sustain the objection and thereby excuse any answer. Rather, the Court should limit the question to a reasonable scope. (Borse v. Sup.Ct. (Southern Pac. Co.) (1970) 7 Cal. App. 3d 286, 289.)

Special interrogatory 1 seeks 20 years of all medical conditions. Fontem argues that because the complaint lists a broad variety of injuries, special interrogatory 1 is necessary to determine alternative causes of the claimed injuries. While this may explain the large scope of medical information sought, this does not explain why such an expansive time period of 20 years is required. As such the requested time period shall be reduced from 20 years to 10 years. Plaintiff Edith is to provide further code compliant responses to this special interrogatory with this modification.

Plaintiff’s Response to Special Interrogatory 2

With regard to special interrogatory 2, a response must be “as complete and straightforward as the information reasonably available to the responding party permits. If an interrogatory cannot be answered completely, it shall be answered to the extent possible.” (CCP § 2030.220(a), (b)) (emphasis added.) Here, Plaintiff Edith’s response is incomplete. Plaintiff Edith is to provide verified, further, code compliant responses to special interrogatory 2 with the limitation of 10 years as discussed above.

Plaintiff’s Response to Special Interrogatory 3

If a question requires reference to some other document, the document should be identified, and its contents summarized so that the answer by itself is fully responsive to the interrogatory. (Deyo v. Kilbourne (1978) (84 Cal. App. 3d at 783-784.) As such, the mere refence to a set of documents is insufficient. Plaintiff Edith is to provide further code compliant responses to special interrogatory 3 with the limitation of 10 years as discussed above.

Special Interrogatory 4

“STATE all diseases, injuries, illnesses, or other medical conditions for which YOU seek

recovery in this lawsuit.” (Special Interrogatory 4.)

Defendant Fontem argues that Plaintiff’s response does not make clear whether Plaintiff has listed all diseases, injuries, illnesses, or other medical conditions for which Plaintiff is seeking recovery. Plaintiff’s supplemental response does not clarify this. Plaintiff Edith must supplement her response to clarify whether she has listed all the diseases, injuries, illnesses, or other medical conditions for which she is seeking recovery at this time.

Special Interrogatory 8

“IDENTIFY all INSURANCE or BENEFITS YOU received RELATING TO any disease, injury or medical condition for which damages are sought in this lawsuit.” (Special Interrogatory 8.)

In response to special interrogatory 8, Plaintiff pointed to a production of documents given to Fontem. Plaintiff contends that the question improperly seeks to ascertain whether some parts of her expenses have been paid by collateral sources. In response, Fontem asserts that it seeks only the identity of insurers that have provided insurance or benefits to plaintiff. Plaintiff has not explained why this question “would necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from the documents of the party to whom the interrogatory is directed.” (CCP § 2030.230.) Additionally, if the question requires reference to some other document, it should be identified, and its contents summarized so that the answer by itself is fully responsive to the interrogatory. (Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 784.) Therefore, Plaintiff’s response is improper. Plaintiff Edith must identify the insurers.

Special Interrogatory 14-15

“IDENTIFY YOUR relatives, including, but not limited to, spouses, children, parents, brothers, sisters, aunts, uncles, cousins, and grandparents, and, for each such relative, provide his or her date of birth, place of birth, date of death (if applicable), cause of death (if applicable), and YOUR relationship to each of them.” (Special Interrogatory 14.)

“For each relative identified in response to Interrogatory No. 14, STATE whether he or she has used any E-VAPOR PRODUCT or TOBACCO PRODUCT and, if so, provide the identity of each such product and the period of use.” (Special Interrogatory 15.)

Plaintiff asserts that these interrogatories are outside the scope of discovery as they have nothing to do with the case at hand but rather seek information on every familial relationship and whether every family member has ever used a e-vapor product or tobacco product. Finally, Plaintiff Edith argues that special interrogatory 14 is compound as it includes multiple subparts.

Fontem asserts that special interrogatory 14 seeks information related to Plaintiff's health history, Plaintiff's tobacco, e-cigarette and e-vapor product use, and Plaintiff's awareness of tobacco product use and health risk. Further Fontem argues that this bears upon the issue of Plaintiff’s family history of health conditions.

Overbroad and Invasive

Discovery statutes should be construed liberally in favor of discovery. (Williams v. Sup.Ct. (Marshalls of CA, LLC) (2017) 3 Cal. 5th 531, 540-541.) As such Plaintiff Edith fails to cite any authority that the information relating to these third parties such as address, date of birth, and date of death, is privileged. Therefore, the Court finds that the scope is not overbroad or improperly invasive.

Plaintiff Edith is to provide verified, further code-compliant responses to special interrogatories 14 and 15.

Special Interrogatory 16

“Identify all TOBACCO PRODUCTS that YOU have ever used by stating the name of the product, the dates and length of time that YOU used each TOBACCO PRODUCT, and the amount and frequency of YOUR use of each such TOBACCO PRODUCT.” (Special Interrogatory 16.)

The only dispute remaining with regard to special interrogatory 16 is whether Plaintiff Edith has utilized any tobacco products other than Marlboro Lights and the dates of usage. Plaintiff’s supplemental response is incomplete and must be supplemented to clarify whether Plaintiff Edith has utilized any tobacco products other than Marlboro Lights and the dates of usage

CONCLUSIONS AND ORDER

Based on the reasons discussed above, Defendant Fontem’s Motion to Compel Further responses to its Special Interrogatories is GRANTED IN PART with respect to special interrogatories 1-4, 8, 14, 15, 16 and with the stated limitation on special interrogatory 1 to 10 years.

Plaintiff Edith Anne Petrucci is ordered to serve verified, further, code-compliant responses to Fontem’s special interrogatories 1-4, 8, 14, 15, and 16 without objections within 20 days

Moving Party is ordered to provide notice of this order and file proof of service of such.

DATED: December 24, 2019 ___________________________

Elaine Lu

Judge of the Superior Court

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