This case was last updated from Los Angeles County Superior Courts on 07/07/2019 at 00:44:03 (UTC).

MATTHEW G LOPEZ BAUTISTA VS FOOTHILL PRESBYTERIAN HOSPITAL

Case Summary

On 02/08/2018 MATTHEW G LOPEZ BAUTISTA filed a Personal Injury - Medical Malpractice lawsuit against FOOTHILL PRESBYTERIAN HOSPITAL. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3486

  • Filing Date:

    02/08/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Medical Malpractice

  • County, State:

    Los Angeles, California

 

Party Details

Defendants and Respondents

LEE JEFFREY MD

DOES 1 TO 20

FOOTHILL PRESBYTERIAN HOSPITAL

CITRUS VALLEY HEALTH PARTNERS INC.

Guardian Ad Litem

BAUTISTA KARINA

Minor

LOPEZ-BAUTISTA MATTHEW G.

Attorney/Law Firm Details

Defendant Attorneys

ROSA STEPHEN A.

FRASER STEPHEN C. ESQ.

Minor Attorney

BURUNSUZYAN MARO ESQ.

 

Court Documents

NOTICE OF REJECTION - APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM

4/10/2018: NOTICE OF REJECTION - APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM

APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM?CIVIL

4/10/2018: APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM?CIVIL

SUMMONS

6/21/2018: SUMMONS

PROOF OF SERVICE SUMMONS

8/14/2018: PROOF OF SERVICE SUMMONS

PROOF OF SERVICE SUMMONS

8/17/2018: PROOF OF SERVICE SUMMONS

DEMAND FOR TRIAL BY JURY

9/6/2018: DEMAND FOR TRIAL BY JURY

ANSWER TO COMPLAINT ON BEHALF OF DEFENDANT CITRUS VALLEY HEALTH PARTNERS, INC. DBA FOOTHILL PRESBYTERIAN HOSPITAL

9/6/2018: ANSWER TO COMPLAINT ON BEHALF OF DEFENDANT CITRUS VALLEY HEALTH PARTNERS, INC. DBA FOOTHILL PRESBYTERIAN HOSPITAL

DEMAND FOR JURY TRIAL

9/11/2018: DEMAND FOR JURY TRIAL

ANSWER OF DEFENDANT JEFFREY LEE, M.D., TO PLAINTIFFS UNVERIFIED COMPLAINT

9/11/2018: ANSWER OF DEFENDANT JEFFREY LEE, M.D., TO PLAINTIFFS UNVERIFIED COMPLAINT

CIVIL DEPOSIT

9/11/2018: CIVIL DEPOSIT

DECLARATION OF TRIAL ATTORNEY PURSUANT TO SECTION 9 OF THE CALIFORNIA RULES OF COURT, JUDICIAL ADMINISTRATION

10/3/2018: DECLARATION OF TRIAL ATTORNEY PURSUANT TO SECTION 9 OF THE CALIFORNIA RULES OF COURT, JUDICIAL ADMINISTRATION

Notice of Change of Firm Name

3/11/2019: Notice of Change of Firm Name

Notice of Deposit - Jury

3/15/2019: Notice of Deposit - Jury

Separate Statement

4/23/2019: Separate Statement

Motion for Summary Judgment

4/23/2019: Motion for Summary Judgment

NOTICE OF REJECTION - APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM

3/9/2018: NOTICE OF REJECTION - APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM

APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM

3/9/2018: APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM

COMPLAINT FOR DAMAGES (PROFESSIONAL NEGLIGENCE/MEDICAL MALPRACTICE)

2/8/2018: COMPLAINT FOR DAMAGES (PROFESSIONAL NEGLIGENCE/MEDICAL MALPRACTICE)

9 More Documents Available

 

Docket Entries

  • 04/23/2019
  • Separate Statement; Filed by Foothill Presbyterian Hospital (Legacy Party); CITRUS VALLEY HEALTH PARTNERS, INC. (Defendant)

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  • 04/23/2019
  • Motion for Summary Judgment; Filed by Foothill Presbyterian Hospital (Legacy Party); CITRUS VALLEY HEALTH PARTNERS, INC. (Defendant)

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  • 03/15/2019
  • Notice of Deposit - Jury; Filed by CITRUS VALLEY HEALTH PARTNERS, INC. (Defendant)

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  • 03/11/2019
  • Notice of Change of Firm Name; Filed by CITRUS VALLEY HEALTH PARTNERS, INC. (Defendant)

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  • 10/03/2018
  • DECLARATION OF TRIAL ATTORNEY PURSUANT TO SECTION 9 OF THE CALIFORNIA RULES OF COURT, JUDICIAL ADMINISTRATION

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  • 10/03/2018
  • Declaration (of Trial Attorney Pursuant to Section 9 of the California Rules of Court, Judicial Administration); Filed by Jeffrey MD Lee (Defendant)

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  • 09/11/2018
  • Demand for Jury Trial; Filed by Jeffrey MD Lee (Defendant)

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  • 09/11/2018
  • DEMAND FOR JURY TRIAL

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  • 09/11/2018
  • ANSWER OF DEFENDANT JEFFREY LEE, M.D., TO PLAINTIFFS UNVERIFIED COMPLAINT

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  • 09/11/2018
  • NOTICE OF POSTING JURY FEE DEPOSIT

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16 More Docket Entries
  • 05/25/2018
  • Application ; Filed by Plaintiff/Petitioner

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  • 04/10/2018
  • APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM CIVIL

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  • 04/10/2018
  • NOTICE OF REJECTION - APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM

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  • 04/10/2018
  • Application ; Filed by Plaintiff/Petitioner

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  • 03/09/2018
  • NOTICE OF REJECTION - APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM

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  • 03/09/2018
  • Application ; Filed by Plaintiff/Petitioner

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  • 03/09/2018
  • APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM

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  • 02/08/2018
  • Miscellaneous-Other; Filed by Matthew G. Lopez-Bautista (Legacy Party)

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  • 02/08/2018
  • COMPLAINT FOR DAMAGES (PROFESSIONAL NEGLIGENCE/MEDICAL MALPRACTICE)

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  • 02/08/2018
  • Complaint; Filed by null

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Tentative Rulings

Case Number: BC693486    Hearing Date: May 6, 2021    Dept: J

HEARING DATE: Thursday, May 6, 2021

NOTICE: OK[1]

RE: Lopez-Bautista v. Foothill Presbyterian Hospital, et al. (BC693486)

______________________________________________________________________________

 

Plaintiff Matthew G. Lopez-Bautista’s MOTION SEEKING LEAVE TO AUGMENT

EXPERT WITNESS LIST

Responding Party: Defendant, Jeffrey Lee, M.D.; Defendant Citrus Valley Health Partners, Inc., dba Foothill Presbyterian Hospital

Tentative Ruling

Plaintiff Matthew G. Lopez-Bautista’s Motion Seeking Leave to Augment Expert Witness

List is GRANTED.

Background

Plaintiff Matthew G. Lopez-Bautista, by and through his Guardian Ad Litem Karina Bautista (“Plaintiff”) alleges as follows: On or around February 8, 2012, Plaintiff was born at Foothill Presbyterian Hospital, delivered by Jeffrey Lee, M.D. (“Lee”). The medical assessment, consultation, decision-making, care and treatment provided to Plaintiff in utero, as well as to his mother, prior to, during, and following the delivery, including a delay in performing a required emergency cesarean section surgery to deliver Plaintiff, was substandard and injured Plaintiff.

On February 8, 2018, Plaintiff filed a complaint, asserting a cause of action against Citrus Valley Health Partners, Inc., dba Foothill Presbyterian Hospital (“Hospital”), Lee and Does 1-20 for:

  1. Professional Negligence/Medical Malpractice

On November 21, 2019, Plaintiff filed an Amendment to Complaint, wherein Yong Chen, M.D. (“Chen”) was named in lieu of Doe 1. On February 10, 2020, this case was transferred from Department 32 (Personal Injury Court) to this instant department.

On March 1, 2021, Chen was ordered dismissed with prejudice, per Plaintiff’s counsel’s oral request.

A Hearing—Other re: Trial Status is set for June 16, 2021. The Final Status Conference is set for July 19, 2021. Trial is set for July 27, 2021.

Legal Standard

“On motion of any party who has engaged in a timely exchange of expert witness information, the court may grant leave to do either or both of the following: (1) Augment that party’s expert witness list and declaration by adding the name and address of any expert witness whom that party has subsequently retained. (2) Amend that party’s expert witness declaration with respect to the general substance of the testimony that an expert previously designated is expected to give.” (Code Civ. Proc., § 2034.610, subd. (a).) “A motion under subdivision (a) shall be made at a sufficient time in advance of the time limit for the completion of discovery under Chapter 8 (commencing with Section 2024.010) to permit the deposition of any expert to whom the motion relates to be taken within that time limit. Under exceptional circumstances, the court may permit the motion to be made at a later time.” (Code Civ. Proc., § 2034.610, subd. (b).) “The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2034.610, subd. (c).)

“The court shall grant leave to augment or amend an expert witness list or declaration only if all of the following conditions are satisfied: (a) The court has taken into account the extent to which the opposing party has relied on the list of expert witnesses. (b) The court has determined that any party opposing the motion will not be prejudiced in maintaining that party’s action or defense on the merits. (c) The court has determined either of the following: (1) The moving party would not in the exercise of reasonable diligence have determined to call that expert witness or have decided to offer the different or additional testimony of that expert witness. (2) The moving party failed to determine to call that expert witness, or to offer the different or additional testimony of that expert witness as a result of mistake, inadvertence, surprise, or excusable neglect, and the moving party has done both of the following: (A) Sought leave to augment or amend promptly after deciding to call the expert witness or to offer the different or additional testimony. (B) Promptly thereafter served a copy of the proposed expert witness information concerning the expert or the testimony described in Section 2034.260 on all other parties who have appeared in the action. (d) Leave to augment or amend is conditioned on the moving party making the expert available immediately for a deposition under Article 3 (commencing with Section 2034.410), and on any other terms as may be just, including, but not limited to, leave to any party opposing the motion to designate additional expert witnesses or to elicit additional opinions from those previously designated, a continuance of the trial for a reasonable period of time, and the awarding of costs and litigation expenses to any party opposing the motion.” (Code Civ. Proc., § 2034.620.)

Discussion

Plaintiff moves the court for an order granting leave to augment or amend his expert witness list to add Dr. Edward Cefala (“Cefala”).

Plaintiff’s counsel Maro Burunsuzyan (“Burunsuzyan”) attests as follows: Cefala is a radiologist who worked for Hospital and interpreted Plaintiff’s cranial ultrasound on February 9, 2012. (Burunsuzyan Decl., ¶ 2.) Plaintiff seeks to designate Cefala as a non-retained expert. (Id.) The parties exchanged their expert designations on January 19, 2021. The non-retained expert section of the expert designation was prepared by Burunsuzyan’s legal assistant, who reviewed over 6,000 pages of medical records. (Id.) Cefala’s name was in a report which was page 684 of 2,116 pages of records from Queen of the Valley, where Plaintiff was admitted for neonate care. (Id., ¶¶ 2 and 8, Exh. A.) Burunsuzyan failed to notice Cefala’s name was not included; however, defendants named Cefala as one of their approximately 120 non-retained experts. (Id.) Defendants have also each designated retained radiology experts (i.e., Drs. Zse and Nelson) who have reviewed not only the cranial ultrasound imaging, but also Cefala’s report. (Id., ¶¶ 2 and 4.) Zse and Nelson both disagree with Cefala’s interpretation of the imaging. (Id., ¶ 4.)

Burunsuzyan’s omission became an issue after defendants objected to the taking of Cefala’s deposition and jointly de-designated him on April 6, 2021 as one of their non-retained experts. (Id., ¶¶ 3 and 13, Exh. F.) At the time Burunsuzyan was meeting and conferring with Defendants’ counsel regarding the scheduling of Cefala’s deposition, Burunsuzyan was not aware that he was not listed as a non-retained expert in Plaintiff’s expert exchange. (Id.) Plaintiff served an augmented expert list on April 7, 2021 and sent a meet and confer letter that day. (Id., ¶¶ 9 and 11, Exhs. B and D.) On April 8, 2021, Plaintiff filed for ex parte relief. Burunsuzyan has been in contact with Cefala, who is possibly available for deposition the week of May 3, 2021-May 7, 2021. (Id., ¶ 7.)

The motion is granted. Pursuant to Code of Civil Procedure § 2034.620, the court has taken into account the extent to which Defendants have relied on the list of expert witnesses and determines that Defendants will not be prejudiced in maintaining their defense on the merits. The court determines that Plaintiff failed to designate Cefala as a non-retained expert witness previously due to Plaintiff’s counsel’s mistake, inadvertence, surprise, or excusable neglect, and that Plaintiff has promptly served an augmented expert list and sought leave to augment.


[1] On April 9, 2021, the court granted Plaintiff’s Ex Parte Application Seeking for Leave to Augment Expert Witness List as to the order shortening time; at that time, the court set the matter for hearing on May 3, 2021 and set the following briefing schedule: opposition due by April 21, 2021 and reply due by April 26, 2021. Notice was waived. On April 26, 2021, a “Notice Re: Continuance of Hearing and Order” was filed, wherein the court, on its own motion, rescheduled the May 3, 2021 hearing to May 6, 2021; notice was given to all counsel.

Case Number: BC693486    Hearing Date: January 12, 2021    Dept: J

HEARING DATE: Tuesday, January 12, 2021

NOTICE: OK[1]

RE: Lopez-Bautista v. Foothill Presbyterian Hospital, et al. (BC693486)

______________________________________________________________________________

 

Defendant Yong Chen, M.D.’s MOTION FOR SUMMARY JUDGMENT

Responding Party: Plaintiff, Matthew G. Lopez-Bautista, by and through his Guardian Ad Litem, Karina Bautista

Tentative Ruling

Defendant Yong Chen, M.D.’s Motion for Summary Judgment is DENIED.

Background

Plaintiff Matthew G. Lopez-Bautista, by and through his Guardian Ad Litem Karina Bautista (“Plaintiff”) alleges as follows: On or around February 8, 2012, Plaintiff was born at Foothill Presbyterian Hospital (“Hospital”), delivered by Jeffrey Lee, M.D. (“Lee”). The medical assessment, consultation, decision-making, care and treatment provided to Plaintiff in utero, as well as to his mother, prior to, during, and following the delivery, including a delay in performing a required emergency cesarean section surgery to deliver Plaintiff, was substandard and injured Plaintiff.

On February 8, 2018, Plaintiff filed a complaint, asserting a cause of action against Hospital, Lee and Does 1-20 for:

  1. Professional Negligence/Medical Malpractice

On November 21, 2019, Plaintiff filed an Amendment to Complaint, wherein Yong Chen, M.D. (“Chen”) was named in lieu of Doe 1. On February 10, 2020, this case was transferred from Department 32 (Personal Injury Court) to this instant department.

The Final Status Conference is set for March 1, 2021. Trial is set for March 9, 2021.

Legal Standard

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119 [emphasis theirs].)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action of a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Id. at 467; Code Civ. Proc., § 437c, subd. (c).)

Discussion

Chen moves the court for an order granting summary judgment in his favor and against

Plaintiff pursuant to Code of Civil Procedure § 437c on the ground that no triable issue of

material fact exists and Chen is therefore entitled to judgment as a matter of law.

 

Procedural Deficiencies

At the outset, the court notes that Chen’s moving papers reflect non-compliance with California Rules of Court (“CRC”) Rule 3.1116(c) (i.e., “[t]he relevant portion of any testimony in the deposition must be marked in a manner that calls attention to the testimony.”) Counsel for Chen is admonished.

Evidentiary Objections

The court rules on Plaintiff’s evidentiary objections as follows: Sustained as to No. 1, 3 and 4. Overruled in part as to No. 2 (i.e., “The accepted standard in the community is for on-call surgical teams to arrive within 30 minutes of being called in for a procedure . . . same time as nurse Montgomery”) and otherwise sustained.

Merits

On February 8, 2018, Plaintiff filed a complaint for Professional Negligence/Medical Malpractice. On November 21, 2019, Plaintiff filed an Amendment to Complaint, wherein Chen was named in lieu of Doe 1. Plaintiff alleges as follows: On or around February 8, 2012, Plaintiff was born at Hospital, delivered by Lee. The medical assessment, consultation, decision-making, care and treatment provided to Plaintiff in utero, as well as to his mother, prior to, during, and following the delivery, which included a delay in performing a required emergency cesarean section surgery to deliver Plaintiff, was substandard and injured Plaintiff.

The elements of medical malpractice are: “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence. (Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3d 696, 701-702 [citations omitted].)

“The standard of skill, knowledge and care prevailing in a medical community is ordinarily a matter within the knowledge of experts.” (Folk v. Kilk (1975) 53 Cal.App.3d 176, 185.) “Whether the standard of care in the community has been breached presents the basic issue in a malpractice action and can only be proved by opinion testimony unless the medical question is within the common knowledge of laypersons.” (Jambazian v. Borden (1994) 25 Cal.App.4th 836, 844.) Additionally, “causation must be proven within a reasonable medical probability based upon competent expert testimony.” (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402.) “[T]he issue of proximate cause. . . becomes a question or law when the facts of the case permit only one reasonable conclusion.” (Capolungo v. Bondi (1986) 179 Cal.App.3d 346, 354.)

The court finds that Chen’s offer of evidence via the Declaration of board-certified anesthesiologist Kevin P. Becker, M.D. (“Becker”) fails to satisfy Chen’s moving burden of proof. Becker notes that nurse Marilyn Dowdle specifically documented that Lee placed a telephonic order for a C-section at 2:45 a.m. and that Dr. William T. Williams (Williams”) and Dr. Desai (“Desai”) were contacted to assist with the procedure at 2:55 a.m. (Becker Decl., ¶9). Becker’s opinion that Chen complied with the standard of care is tethered to his conclusion that Chen arrived on the scene at a specified period of time, i.e., within 30 minutes after having been called (i.e., “[t]he accepted standard in the community is for on-call surgical teams to arrive within 30 minutes of being called in for a procedure” [Becker Decl., ¶9]); however, Becker acknowledges that “there is no documentation in the records indicating when . . . DR. CHEN was contacted regarding the order for a C-section.” (Id.) Becker speculates that Chen was present in the hospital no later than 3:30 a.m. based on the 3:40 a.m. pre-anesthesia evaluation. (Id.) As Plaintiff points out, Chen could have been called at, for instance, 2:50 a.m., which would require his arrival at the hospital no later than 3:20 a.m. per Becker’s opinion regarding the standard of care. Affording Chen the 10 minutes of prep time as noted in Becker’s declaration, Chen would have then done his assessment at 3:30 a.m. and not at 3:40 a.m.

Becker’s opinions on causation likewise fail to satisfy Chen’s moving burden of proof. Becker has acknowledged in deposition that he is not qualified to give an opinion as to what, if any, injuries would have been avoided if anesthesia services were provided 10-20 minutes earlier in this case. (Burunsuzyan Decl., ¶2, Exh. 1, 52:3-22.)

The motion is denied.


[1] The motion was filed (and personally/email served on Plaintiff’s counsel and mail/email served on co-defendants’ attorneys) on September 10, 2020 and originally set for hearing on November 24, 2020. On September 10, 2020, a “Notice Re: Continuance of Hearing and Order” was filed, wherein the court, on its own motion, continued the November 24, 2020 hearing to January 12, 2021; notice was given to all counsel.

Case Number: BC693486    Hearing Date: October 14, 2020    Dept: J

HEARING DATE: Wednesday, October 14, 2020

NOTICE: OK

RE: Lopez-Bautista v. Foothill Presbyterian Hospital, et al. (BC693486)

______________________________________________________________________________

 

Plaintiff Matthew G. Lopez-Bautista’s MOTION FOR ORDER COMPELLING

DEFENDANT FOOTHILL PRESBYTERIAN HOSPITAL TO COMPLY WITH ITS

REPRESENTATIONS REGARDING ACTUAL PRODUCTION OF DOCUMENTATION

RESPONSE TO PLAINTIFF’S REQUESTS FOR PRODUCTION OF DOCUMENTS

Responding Party: Defendant, Citrus Valley Health Partners, Inc., dba Foothill Presbyterian Hospital

Tentative Ruling

Plaintiff Matthew G. Lopez-Bautista’s Motion for Order Compelling Defendant Foothill

Presbyterian Hospital to Comply with its Representations Regarding Actual Production of

Documentation Response to Plaintiff’s Requests for Production of Documents is

GRANTED. Hospital is ordered to produce all responsive and agreed-upon documentation (more specifically identified as follows: (a) from the “Perinatal Policies and Procedures” Manual of Hospital in use in 2012, items no. A-100, A-102, A-104, A-106, C-100, C-102, C-104, C-106, C-108, C-180, D-180, D-190, D-200, D-210, D-220, E-100, E-102, E-106, E-108, E-110, F-100, F-102, F-104, F-106, F-108, F-110, F-112, M-100, M-102, M-104, M-106, M-108, N-100, N-104, N-106, N-107, N-110, N-114, N-116, N-118, O-100, O-102, O-104, O-106, O-108,O-110, P-114 and T-104; (b) from the “Nursing Policy and Procedure Section” Manual of Hospital in use in 2012, item nos. A-120, P.12-, S-125, S-130, S-140, S-150 and S-210; (c) from the “Perioperative Services Surgery” Manual of Hospital in use in 2012, section I, section II, section III-A, section III-B, section III-C, section III-O, section III-P and section III-W; and (d) any procedures or policies of the emergency room with respect to admission of a woman in labor) within 20 days of the date of the hearing. The court is inclined to deny sanctions.

Background

Plaintiff Matthew G. Lopez-Bautista, by and through his Guardian Ad Litem Karina Bautista (“Plaintiff”) alleges as follows: On or around February 8, 2012, Plaintiff was born at Foothill Presbyterian Hospital (“Hospital”), delivered by Jeffrey Lee, M.D. (“Lee”). The medical assessment, consultation, decision-making, care and treatment provided to Plaintiff in utero, as well as to his mother, prior to, during, and following the delivery, including a delay in performing a required emergency cesarean section surgery to deliver Plaintiff, was substandard and injured Plaintiff.

On February 8, 2018, Plaintiffs filed a complaint, asserting a cause of action against Hospital, Lee and Does 1-20 for:

  1. Professional Negligence/Medical Malpractice

On November 21, 2019, Plaintiff filed an Amendment to Complaint, wherein Yong Chen, M.D. was named in lieu of Doe 1. On February 10, 2020, this case was transferred from Department 32 (Personal Injury Court) to this instant department.

The Final Status Conference is set for March 1, 2021. Trial is set for March 9, 2021.

Legal Standard

If a party filing a response to a demand for inspection, copying, testing or sampling thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance. (Code Civ. Proc., § 2031.320, subd. (a).)

A motion to compel compliance under Code of Civil Procedure § 2031.320, subdivision (a) need not be accompanied by a meet and confer declaration, nor a California Rules of Court Rule 3.1345 separate statement. Additionally, no fixed time limit on such a motion. (See Standon Co. v. Superior Court (1990) 225 Cal.App.3d 898.)

Discussion

Plaintiff moves the court for an order compelling Hospital to comply with its representations in its written responses to Plaintiff’s Request for Production, Set Two (“subject discovery”), Nos. 15-20, and its representations during “meet and confer” efforts thereafter by actually producing all responsive and agreed-upon documentation (more specifically identified as follows: (a) from the “Perinatal Policies and Procedures” Manual of Hospital in use in 2012, items no. A-100, A-102, A-104, A-106, C-100, C-102, C-104, C-106, C-108, C-180, D-180, D-190, D-200, D-210, D-220, E-100, E-102, E-106, E-108, E-110, F-100, F-102, F-104, F-106, F-108, F-110, F-112, M-100, M-102, M-104, M-106, M-108, N-100, N-104, N-106, N-107, N-110, N-114, N-116, N-118, O-100, O-102, O-104, O-106, O-108,O-110, P-114 and T-104; (b) from the “Nursing Policy and Procedure Section” Manual of Hospital in use in 2012, item nos. A-120, P.12-, S-125, S-130, S-140, S-150 and S-210; (c) from the “Perioperative Services Surgery” Manual of Hospital in use in 2012, section I, section II, section III-A, section III-B, section III-C, section III-O, section III-P and section III-W; and (d) any procedures or policies of the emergency room with respect to admission of a woman in labor). Plaintiff also seeks monetary sanctions in the amount of $7,560.00 against Hospital and/or Hospital’s counsel of record.

Plaintiff’s counsel Maro Burunsuzyan (“Burunsuzyan”) represents as follows: On October 18, 2019, Plaintiff propounded the subject discovery. (Burunsuzyan Decl., ¶3, Exh. A.) After obtaining extensions, Hospital served responses on December 18, 2019. (Id., ¶6, Exh. B.) In reviewing the responses, Burunsuzyan noted that, with one Table of Contents being produced, and with the promise of more to come, Hospital was agreeing to produce any specific policies and procedures that Burunsuzyan identified from the Tables of Contents on behalf of Plaintiff. (Id., ¶7.) Burunsuzyan sent a meet and confer letter on January 16, 2020 regarding, inter alia, the need to identify more Tables of Contents. (Id., ¶7, Exh. C.) On February 6, 2020, Hospital served further responses to the subject discovery; in doing so, Hospital produced additional Tables of Contents and continued to represent that those policies selected by Plaintiff would be produced. (Id., ¶10, Exh. F.) Hospital’s counsel Laura Stephan (“Stephan”), in subsequent telephone discussions with Burunsuzyan, “continued to represent” to Burunsuzyan that, as soon as Burunsuzyan was able to set forth whatever policies and procedures from the various Table of Contents provided, she would obtain each of the requested items from Hospital. (Id., ¶11.) On April 20, 2020, Burunsuzyan emailed Stephan with the specific policies and procedures requested to be produced. (Id., ¶12, Exh. G.) On April 21, 2020, Stephan responded that she would get the documents to Burunsuzyan “shortly.” (Id., ¶13, Exh. H.) Later that same day, Stephan emailed Burunsuzyan to let Burunsuzyan know that she had made a mistake with the Table of Contents that she had produced with Hospital’s further responses served back in January. (Id., ¶14, Exh. I.) With this email, Stephan produced additional Tables of Contents which she identified as being the correct Tables of Contents. (Id.) Burunsuzyan responded that she would review the new Tables of Contents provided and that she also needed policies and procedures regarding arrival of patients in the emergency department. (Id., ¶15, Exh. J.) On May 1, 2020, Stephan emailed Burunsuzyan and attached an additional responsive Table of Contents. (Id., ¶16, Exh. K.) That same day, Burunsuzyan emailed Stephan, detailed the specific policies and procedures which Plaintiff required be produced from the Tables of Contents which had been provided and reiterated her request for policies and procedures for the emergency department regarding a woman in labor. (Id., ¶17, Exh. L.) On May 4, 2020, Stephan responded that she would “check to see how long it will take to get all of these documents” and said that “it may take a few weeks.” (Id., ¶18, Exh. M.) On May 19, 2020 an May 29, 2020, Burunsuzyan sent emails to Stephan requesting status updates. (Id., ¶¶ 20 and 21, Exhs. O and P.) On May 30, 2020, Stephen emailed Burunsuzyan, advised Burunsuzyan that she had retired, and directed Burunsuzyan to her secretary, Lucinda Nowlin (“Nowlin”), regarding the matter. (Id., ¶22, Exh. Q.) On June 8, 2020 and June 11, 2020, Burunsuzyan sent emails to Hospital’s lead counsel, Stephen Rosa, cc’ing Nowlin, requesting status updates. (Id., ¶¶23 and 24, Exhs. R and S.) Although Rosa sent a responsive email to Burunsuzyan on June 11, 2020, stating that he would investigate the matter and get back to Burunsuzyan “shortly,” Burunsuzyan (despite leaving a voice mail and sending an email on July 9, 2020) has heard nothing further from Rosa or any other attorney from Hospital. (Id., ¶¶25-27, Exhs. T & U.) Hospital has not produced one single written policy or procedure in response to Plaintiff’s discovery as of the filing date of the motion. (Id., ¶28.)

Hospital, in response, claims that the motion should be denied because on September 29, 2020, Hospital produced the “overwhelming majority” of the policies and procedures requested by Plaintiff (i.e., including 43 of the 51 perinatal policies and procedures requested and most of the perioperative policies and procedures.) (Rosa Decl., ¶¶25-26 Exh. I.) Hospital is continuing to search for additional policies and procedures requested, which totals less than 15 additional policies and procedures. (Id., ¶26.) Hospital has produced approximately just over 70 policies and procedures. (Id.) Rosa represents that any delay in producing the requested documents can be attributed to Stephan’s retirement, to the fact that the Labor & Delivery Department closed in approximately 2018, with all of the documents set to offsite storage, to the difficulty in locating documents from 2012, and to COVID-19. (Id., ¶¶27 and 28.)

The motion is granted. The court orders Hospital to produce all responsive and agreed-upon documentation (more specifically identified as follows: (a) from the “Perinatal Policies and Procedures” Manual of Hospital in use in 2012, items no. A-100, A-102, A-104, A-106, C-100, C-102, C-104, C-106, C-108, C-180, D-180, D-190, D-200, D-210, D-220, E-100, E-102, E-106, E-108, E-110, F-100, F-102, F-104, F-106, F-108, F-110, F-112, M-100, M-102, M-104, M-106, M-108, N-100, N-104, N-106, N-107, N-110, N-114, N-116, N-118, O-100, O-102, O-104, O-106, O-108,O-110, P-114 and T-104; (b) from the “Nursing Policy and Procedure Section” Manual of Hospital in use in 2012, item nos. A-120, P.12-, S-125, S-130, S-140, S-150 and S-210; (c) from the “Perioperative Services Surgery” Manual of Hospital in use in 2012, section I, section II, section III-A, section III-B, section III-C, section III-O, section III-P and section III-W; and (d) any procedures or policies of the emergency room with respect to admission of a woman in labor) within 20 days of the date of the hearing.

Sanctions

Plaintiff seeks $7,560.00 in monetary sanctions against Hospital and/or Hospital’s counsel of record (calculated as follows: 9 hours preparing motion, plus 6 hours reviewing opposition and preparing reply, at $500.00/hour, plus $60.00 filing fee).

The court is not inclined to award sanctions under the circumstances. The record reflects that Hospital served initial responses on December 18, 2019 and further responses on February 6, 2020. There appears to be some lag time between Hospital’s February 6, 2020 further responses and Burunsuzyan’s April 20, 2020 email to Stephan identifying specific policies and procedures Burunsuzyan wanted produced. On April 21, 2020, Stephan emailed Burunsuzyan to let Burunsuzyan know that she had made a mistake with the Table of Contents and produced additional Tables of Contents which she identified as being the correct Tables of Contents. On May 1, 2020, Stephan emailed Burunsuzyan and attached an additional responsive Table of Contents; that day, Burunsuzyan emailed Stephan and identified the specific policies and procedures which Plaintiff required be produced. Stephan thereafter unexpectedly retired on May 30, 2020. Stephan’s retirement, along with the circumstances set forth in Rosa’s declaration, undoubtedly contributed to Hospital’s delay in producing documents.

Case Number: BC693486    Hearing Date: August 04, 2020    Dept: J

HEARING DATE: Tuesday, August 4, 2020

NOTICE: OK[1]

RE: Lopez-Bautista v. Foothill Presbyterian Hospital, et al. (BC693486)

______________________________________________________________________________

 

Plaintiff Matthew G. Lopez-Bautista’s MOTION FOR ORDERS: (1) COMPELLING

DEFENDANT FOOTHILL PRESBYTERIAN HOSPITAL TO SERVE FURTHER

WRITTEN RESPONSES WITHOUT OBJECTION TO PLAINTIFF’S REQUESTS FOR

PRODUCTION; (2) COMPELLING DEFENDANTS TO PRODUCE ALL RESPONSIVE

DOCUMENTATION; AND (3) IMPOSING MONETARY SANCTIONS IN THE

AMOUNT OF $3,060.00 AGAINST DEFENDANT FOOTHILL PRESBYERIAM HOSPITAL, AND/OR THEIR ATTORNEYS OF RECORD

Responding Party: Defendant, Citrus Valley Health Partners, Inc., dba Foothill Presbyterian Hospital

Tentative Ruling

Plaintiff Matthew G. Lopez-Bautista’s Motion to Compel Further Responses to

Plaintiff’s Request for Production of Documents, Set Two is DENIED. Sanctions in the reduced amount of $925.00 are imposed against Plaintiff and his counsel of record, and are payable within 30 days of the date of the hearing.

Background

Plaintiff Matthew G. Lopez-Bautista, by and through his Guardian Ad Litem Karina Bautista (“Plaintiff”) alleges as follows: On or around February 8, 2012, Plaintiff was born at Foothill Presbyterian Hospital (“Hospital”), delivered by Jeffrey Lee, M.D. (“Lee”). The medical assessment, consultation, decision-making, care and treatment provided to Plaintiff in utero, as well as to his mother, prior to, during, and following the delivery, including a delay in performing a required emergency cesarean section surgery to deliver Plaintiff, was substandard and injured Plaintiff.

On February 8, 2018, Plaintiffs filed a complaint, asserting a cause of action against Hospital, Lee and Does 1-20 for:

  1. Professional Negligence/Medical Malpractice

On November 21, 2019, Plaintiff filed an Amendment to Complaint, wherein Yong Chen, M.D. was named in lieu of Doe 1. On February 10, 2020, this case was transferred from Department 32 (Personal Injury Court) to this instant department.

A Status Conference is set for June 23, 2020.

Legal Standard

A motion to compel further responses to a demand for inspection or production of documents may be brought based on: (1) incomplete statements of compliance; (2) inadequate, evasive or incomplete representations of inability to comply; or (3) unmerited or overly generalized objections. (Code Civ. Proc., § 2031.310, subd. (a).)

A motion to compel further responses to a demand for inspection or production of documents must set forth specific facts showing “good cause” justifying the discovery sought by the demand. (Code Civ. Proc., § 2031.310, subd. (b)(1).) If the moving party has shown good cause for the production of documents, the burden is on the objecting party to justify the objections. (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)

The moving party must also demonstrate a “reasonable and good faith attempt” at an informal resolution of each issue presented. (Code Civ. Proc., §§ 2016.040, 2031.310, subd. (b)(2).) In lieu of a separate statement required under the California Rules of Court, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute. (Code Civ. Proc., § 2031.310, subd. (b)(3).)

Notice of the motion must be provided within 45 days of service of the verified response, or any supplemental verified response, or on or before any specific later date to which the parties have agreed in writing. (Code Civ. Proc., § 2030.310, subd. (c).)

The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further responses to a demand for inspection or production of documents, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make it unjust to impose sanctions. (Code Civ. Proc., § 2031.310, subd. (h).)

Discussion

Plaintiff moves the court for orders (1) compelling Hospital to serve further written responses, without objection, to Plaintiff’s Request for Production, Set Two (i.e., Nos. 23-31), (2) compelling Hospital to produce all responsive documentation to each request and (3) imposing monetary sanctions against Hospital and/or its attorneys or record in the amount of $3,060.00.

On October 18, 2019, Plaintiff propounded the subject discovery on Hospital. (Burunsuzyan Decl., ¶3, Exh. A.) After receiving extensions, Hospital timely served its responses thereto on December 18, 2019. (Id., ¶4, Exh. B.) On January 6, 2020, Plaintiff’s counsel Maro Burunsuzyan (“Burunsuzyan”) sent a meet and confer letter to Hospital’s counsel Laura Stephan (“Stephan”) (Id., ¶5, Exh. C.) On January 27, 2020, Stephan requested a two week extension in which to respond to Burunsuzyan’s January 6, 2020 meet and confer letter and advised that, in turn, Plaintiff would be given a two week reciprocal extension of time on any needed motion; this request was granted on January 28, 2020. (Id., ¶6, Exhs. D and E.) On February 6, 2020, Hospital served further responses; however, no further responses were made and no documents were produced in response to Nos. 23-31. (Id., ¶7, Exh. F.) Since Burunsuzyan’s January 28, 2020 letter, he has heard nothing further from Hospital’s counsel regarding the matters at issue herein, nor has he received any further responses. (Id., ¶8.)

Request No. 23 seeks performance evaluations for nurse Marilyn Dowdle (“Dowdle”). Request No. 24 seeks records of discipline or “write-ups” for Dowdle. Request No. 25 seeks Dowdle’s redacted[2]employment file. Requests Nos. 26-28 request the information sought in Nos. 23-25 but as to nurse Susan Montgomery. Finally, Requests Nos. 29-31 request the information sought in Nos. 23-25 but as to nurse Joann Vorndran.

The motion was originally set for hearing on June 23, 2020. In its tentative ruling, the court determined that Plaintiff had not shown good cause. After oral argument, the court continued the hearing, on its own motion, to August 4, 2020 and set the following briefing schedule: “Counsel for plaintiff to submit a supplemental declaration by 7/7/20. Opposition, if any, is to be submitted by 7/13/20.”

Absent a claim of privilege or attorney work product, the moving party meets its burden of showing good cause by a fact-specific showing of relevance. (See Kirkland, supra, 95 Cal.App.4th at 98.)

In Calcor Space Facility v. Superior Court (1997) 53 Cal.App.4th 216, 224, the Court of Appeal

explained:

“In law and motion practice, factual evidence is supplied to the court by way of declarations. [The moving party] provided argument but no evidence at all to permit the court to conclude that the material sought was admissible in evidence or appear[ed] reasonably calculated to lead to the discovery of admissible evidence. The only justification for the request is contained in [the moving party’s] ‘Statement Pursuant to Rule 335(a)’ and in a document entitled Combined Opposition to Calcor Space Facility, Inc.'s Motion for Protective Order and Reply Brief in Support of Motion to Compel Calcor Space Facility, Inc. to Comply with Deposition Subpoena for Production of Business Documents.” Neither document is verified, and thus they do not constitute evidence.”

The Calcor court issued a writ of mandate issue directing the trial court to vacate its order compelling the defendant to produce records because the plaintiff had failed to provide specific facts showing good cause for their production.

Subsequently, in Digital Music News LLC v Superior Court (2014) 226 Cal.App.4th 216, 224 (disapproved of on other grounds by Williams v. Superior Court (2017) 3 Cal.5th 531), the Court of Appeal identified the manner for establishing good cause under Calcor: “To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.” Additionally, while declarations made on information and belief may be acceptable, the specific facts supporting such information and belief (the sources of the information) must be stated. (Grannis v. Board of Medical Examiners (1971) 19 Cal.App.3d 551, 564 [involving affidavit for subpoena duces tecum with analogous good cause requirement; see also, Weil & Brown, et al. CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2019) ¶ 8:1495.8)

On July 7, 2020, Burunsuzyan filed a declaration regarding good cause. Burunsuzyan claims that good cause exists for the following reasons:

• Allegations of negligence resulting catastrophic injury to the minor plaintiff establish good cause to compel production of the information (Burunsuzyan Reply Decl., ¶¶2-3, 5); • Counsel should be able to obtain these documents in order to corroborate deposition testimony (Id., ¶¶ 4 and 6); • Plaintiff’s expert witnesses and counsel believe that the standard of care was breached (Id., ¶7); • Unspecified testimony from Dowdle regarding Dowdle’s custom and practice warrants Plaintiff’s entitlement to these documents (Id., ¶6); and • The personnel files might show whether what was required of the nurses was substantively sufficient, including whether the requirements were in compliance with controlling regulations for a hospital or whether the evaluations involved sufficient training or testing on matters relevant to the litigation (Id., ¶7.)

The court determines that the foregoing declaration fails to show good cause. There are no specific facts regarding the documents sought, the requests for production, or the disputed facts that are of consequence in the action to explain how the discovery sought will tend to prove or disprove the disputed fact or lead to other evidence that will tend to prove or disprove the fact. This does not comply with the requirements of CCP section 2031.310(b)(1) as set forth in Calcor and Digital Music.

The motion, then, is denied.

Sanctions

Plaintiff’s request for sanctions is denied. Hospital, in its opposition, seeks $2,127.50 in sanctions as against Plaintiff and/or his counsel of record [calculated as follows: 1.5 hours reviewing motion, 8 hours preparing opposition and 2 hours preparing reply and traveling to/from and attending hearing on motion at $185.00/hour].

Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $925.00 [i.e., 5 hours at $185.00/hour]. Sanctions are imposed against Plaintiff and his counsel of record, and are payable within 30 days of the date of the hearing.


[1] On May 5, 2020, a “Notice of Continuance Due to COVID-19 State of Emergency Declarations” was filed, wherein the court, on its own motion, continued the time of the June 23, 2020 hearing date (i.e., to 10:00 a.m.); notice was provided to all counsel. On June 23, 2020, the court continued the hearing, on its own motion, to August 4, 2020 and set the following briefing schedule: “Counsel for plaintiff to submit a supplemental declaration by 7/7/20. Opposition, if any, is to be submitted by 7/13/20.”

[2] The request permits redaction for “private personal information such as social security numbers, home addresses and phone numbers, health or medical records, and income and pay records . . .”

Case Number: BC693486    Hearing Date: June 23, 2020    Dept: J

HEARING DATE: Tuesday, June 23, 2020

NOTICE: OK[1]

RE: Lopez-Bautista v. Foothill Presbyterian Hospital, et al. (BC693486)

______________________________________________________________________________

 

Plaintiff Matthew G. Lopez-Bautista’s MOTION FOR ORDERS: (1) COMPELLING

DEFENDANT FOOTHILL PRESBYTERIAN HOSPITAL TO SERVE FURTHER

WRITTEN RESPONSES WITHOUT OBJECTION TO PLAINTIFF’S REQUESTS FOR

PRODUCTION; (2) COMPELLING DEFENDANTS TO PRODUCE ALL RESPONSIVE

DOCUMENTATION; AND (3) IMPOSING MONETARY SANCTIONS IN THE

AMOUNT OF $3,060.00 AGAINST DEFENDANT FOOTHILL PRESBYERIAM HOSPITAL, AND/OR THEIR ATTORNEYS OF RECORD

Responding Party: Defendant, Citrus Valley Health Partners, Inc., dba Foothill Presbyterian Hospital

Tentative Ruling

Plaintiff Matthew G. Lopez-Bautista’s Motion to Compel Further Responses to

Plaintiff’s Request for Production of Documents, Set Two is DENIED. The court is inclined

to award sanctions against Plaintiff and his counsel of record, jointly and severally, in the

reduced amount of $925.00.

Background

Plaintiff Matthew G. Lopez-Bautista, by and through his Guardian Ad Litem Karina Bautista (“Plaintiff”) alleges as follows: On or around February 8, 2012, Plaintiff was born at Foothill Presbyterian Hospital (“Hospital”), delivered by Jeffrey Lee, M.D. (“Lee”). The medical assessment, consultation, decision-making, care and treatment provided to Plaintiff in utero, as well as to his mother, prior to, during, and following the delivery, including a delay in performing a required emergency cesarean section surgery to deliver Plaintiff, was substandard and injured Plaintiff.

On February 8, 2018, Plaintiffs filed a complaint, asserting a cause of action against Hospital, Lee and Does 1-20 for:

  1. Professional Negligence/Medical Malpractice

On November 21, 2019, Plaintiff filed an Amendment to Complaint, wherein Yong Chen, M.D. was named in lieu of Doe 1. On February 10, 2020, this case was transferred from Department 32 (Personal Injury Court) to this instant department.

A Status Conference is set for June 23, 2020.

Legal Standard

A motion to compel further responses to a demand for inspection or production of documents may be brought based on: (1) incomplete statements of compliance; (2) inadequate, evasive or incomplete representations of inability to comply; or (3) unmerited or overly generalized objections. (Code Civ. Proc., § 2031.310, subd. (a).)

A motion to compel further responses to a demand for inspection or production of documents must set forth specific facts showing “good cause” justifying the discovery sought by the demand. (Code Civ. Proc., § 2031.310, subd. (b)(1).) If the moving party has shown good cause for the production of documents, the burden is on the objecting party to justify the objections. (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)

The moving party must also demonstrate a “reasonable and good faith attempt” at an informal resolution of each issue presented. (Code Civ. Proc., §§ 2016.040, 2031.310, subd. (b)(2).) In lieu of a separate statement required under the California Rules of Court, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute. (Code Civ. Proc., § 2031.310, subd. (b)(3).)

Notice of the motion must be provided within 45 days of service of the verified response, or any supplemental verified response, or on or before any specific later date to which the parties have agreed in writing. (Code Civ. Proc., § 2030.310, subd. (c).)

The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further responses to a demand for inspection or production of documents, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make it unjust to impose sanctions. (Code Civ. Proc., § 2031.310, subd. (h).)

Discussion

Plaintiff moves the court for orders (1) compelling Hospital to serve further written responses, without objection, to Plaintiff’s Request for Production, Set Two (i.e., Nos. 23-31), (2) compelling Hospital to produce all responsive documentation to each request and (3) imposing monetary sanctions against Hospital and/or its attorneys or record in the amount of $3,060.00.

On October 18, 2019, Plaintiff propounded the subject discovery on Hospital. (Burunsuzyan Decl., ¶3, Exh. A.) After receiving extensions, Hospital timely served its responses thereto on December 18, 2019. (Id., ¶4, Exh. B.) On January 6, 2020, Plaintiff’s counsel Maro Burunsuzyan (“Burunsuzyan”) sent a meet and confer letter to Hospital’s counsel Laura Stephan (“Stephan”) (Id., ¶5, Exh. C.) On January 27, 2020, Stephan requested a two week extension in which to respond to Burunsuzyan’s January 6, 2020 meet and confer letter and advised that, in turn, Plaintiff would be given a two week reciprocal extension of time on any needed motion; this request was granted on January 28, 2020. (Id., ¶6, Exhs. D and E.) On February 6, 2020, Hospital served further responses; however, no further responses were made and no documents were produced in response to Nos. 23-31. (Id., ¶7, Exh. F.) Since Burunsuzyan’s January 28, 2020 letter, he has heard nothing further from Hospital’s counsel regarding the matters at issue herein, nor has he received any further responses. (Id., ¶8.)

Request No. 23 seeks performance evaluations for nurse Marilyn Dowdle (“Dowdle”). Request No. 24 seeks records of discipline or “write-ups” for Dowdle. Request No. 25 seeks Dowdle’s redacted[2]employment file. Requests Nos. 26-28 request the information sought in N os. 23-25 but as to nurse Susan Montgomery. Finally, Requests Nos. 29-31 request the information sought in Nos. 23-25 but as to nurse Joann Vorndran.

The court determines that Plaintiff has failed to meet its burden of showing good cause. Absent a claim of privilege or attorney work product, the moving party meets its burden of showing good cause by a fact-specific showing of relevance. (See Kirkland, supra, 95 Cal.App.4th at 98.) In Calcor Space Facility v. Superior Court (1997) 53 Cal.App.4th 216, 224, the Court of Appeal

explained:

“In law and motion practice, factual evidence is supplied to the court by way of declarations. [The moving party] provided argument but no evidence at all to permit the court to conclude that the material sought was admissible in evidence or appear[ed] reasonably calculated to lead to the discovery of admissible evidence. The only justification for the request is contained in [the moving party’s] ‘Statement Pursuant to Rule 335(a)’ and in a document entitled Combined Opposition to Calcor Space Facility, Inc.'s Motion for Protective Order and Reply Brief in Support of Motion to Compel Calcor Space Facility, Inc. to Comply with Deposition Subpoena for Production of Business Documents.” Neither document is verified, and thus they do not constitute evidence.”

The Calcor court issued a writ of mandate issue directing the trial court to vacate its order compelling the defendant to produce records because the plaintiff had failed to provide specific facts showing good cause for their production.

Subsequently, in Digital Music News LLC v Superior Court (2014) 226 Cal.App.4th 216, 224 (disapproved of on other grounds by Williams v. Superior Court (2017) 3 Cal.5th 531), the Court of Appeal identified the manner for establishing good cause under Calcor: “To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.” Additionally, while declarations made on information and belief may be acceptable, the specific facts supporting such information and belief (the sources of the information) must be stated. (Grannis v. Board of Medical Examiners (1971) 19 Cal.App.3d 551, 564 [involving affidavit for subpoena duces tecum with analogous good cause requirement; see also, Weil & Brown, et al. CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2019) ¶ 8:1495.8)

Here, the motion is accompanied by the declaration of Plaintiff’s counsel, Maro Burunsuzyan (“Burunsuzyan”). Burunsuzyan, however, makes no showing of good cause. There are no specific facts regarding the documents sought, the requests for production, or the disputed facts that are of consequence in the action to explain how the discovery sought will tend to prove or disprove the disputed fact or lead to other evidence that will tend to prove or disprove the fact. This does not comply with the requirements of CCP section 2031.310(b)(1) as set forth in Calcor and Digital Music.

The motion, then, is denied.

Sanctions

Plaintiff’s request for sanctions is denied. Hospital, in its opposition, seeks $2,127.50 in sanctions as against Plaintiff and/or his counsel of record [calculated as follows: 1.5 hours reviewing motion, 8 hours preparing opposition and 2 hours preparing reply and traveling to/from and attending hearing on motion at $185.00/hour].

The court determines that the amount of sanctions requested is excessive. The court is inclined to award sanctions against Plaintiff and his counsel, jointly and severally, in the reduced amount of $925.00 [i.e., 5 hours at $185.00/hour].


[1] On May 5, 2020, a “Notice of Continuance Due to COVID-19 State of Emergency Declarations” was filed, wherein the court, on its own motion, continued the time of the June 23, 2020 hearing date (i.e., to 10:00 a.m.); notice was provided to all counsel.

[2] The request permits redaction for “private personal information such as social security numbers, home addresses and phone numbers, health or medical records, and income and pay records . . .”

Case Number: BC693486    Hearing Date: November 01, 2019    Dept: 5

Superior Court of California

County of Los Angeles

Department 5

matthew g. lopez bautista,

Plaintiff,

v.

foothill presbyterian hospital,

Defendant.

Case No.: BC693486

Hearing Date: November 1, 2019

[TENTATIVE] order RE:

motion to compel depositions

BACKGROUND

Plaintiff Matthew Lopez-Bautista (“Plaintiff”) is a minor who suffered injuries during his birth at Defendant Citrus Valley Health Partners, Inc. (“Defendant”). Plaintiff moves to compel the depositions of Defendant’s persons most qualified to testify on specified topics, as well as three of Defendant’s employees, and Defendant’s retained expert.

LEGAL STANDARD

Plaintiff has the right to take Defendant’s deposition and is entitled to do so without leave of court at any time after Plaintiff served Defendants, or after Defendants appeared in the action. (See Code Civ. Proc., § 2025.210, subd. (a).) Per Code of Civil Procedure section 2025.450, if a party to the action fails to appear for deposition after service of a deposition notice and the party has not served a valid objection to that deposition notice, the party that noticed the deposition may move for an order to compel the deponent to attend and testify at deposition. (Code Civ. Proc., §2025.450, subd. (a).)

DISCUSSION

Plaintiff noticed the deposition of Defendant’s person most qualified to testify on specified topics for August 30, 2019. Defendant did not object to the deposition notice. Nonetheless, the deposition did not go forward on that date. (Declaration of David L. Scott, ¶¶ 4-5, Exhibit G.) Accordingly, the motion to compel Defendant to produce a person (or persons) most qualified to testify is granted.

Plaintiff also served deposition notices on three of Defendant’s employees: (1) Marilyn Dowdle; (2) Susan Montgomery; and (3) Joann Vorndran. The service of deposition notices is sufficient to compel the attendance of Defendant’s employees at deposition. (Code Civ. Proc., § 2025.280, subd. (a). Defendant concedes its employees must appear for depositions. (Declaration of Laura L. Stephan, ¶ 4.) The Court therefore grants the motion to compel these depositions.

Finally, Plaintiff seeks leave to depose Marc Incerpi, M.D. (“Incerpi”). Defendant relies on Incerpi’s declaration in support of its motion for summary judgment against Plaintiff. For this reason, Plaintiff is entitled to take Incerpi’s deposition at this stage if “there is a legitimate question regarding the foundation of the opinion of the expert.” (St. Mary Medical Center v. Superior Court (1996) 50 Cal.App.4th 1531, 1540.) Plaintiff has not detailed any such concerns. Accordingly, Plaintiff is not entitled to depose Incerpi prior to the exchange of expert witness designations. Nevertheless, if Plaintiff is not able to take Incerpri’s deposition sufficiently in advance of his deadline to oppose Defendant’s motion for summary judgment, the Court may be forced to deny the motion outright or continue the hearing on the motion. (See Code Civ. Proc. § 437c(h).) For that reason, even though the Court is denying Plaintiff’s motion without prejudice, the Court orders the parties to meet-and-confer whether Defendant will stipulate to allow Plaintiff to take Incerpi’s deposition prior to the exchange of expert witness designations.

Plaintiff seeks sanctions in the amount of $2,100 against Defendant and counsel-of-record. The depositions of Defendant’s employees were originally noticed for early August 2019, following which Plaintiff’s counsel repeatedly requested alternative dates from Defendant’s counsel. Although Defendant’s counsel responded to each inquiry, no dates were provided until after Plaintiff filed this motion on October 4, 2019. The Court finds that Defendant abused the discovery process by not providing alternative deposition dates in a timely fashion. The Court finds that Defendant, and not Defendant’s counsel, is responsible for this issue. Therefore, the Court orders Defendant (but not Defendant’s counsel) to pay sanctions in the amount of $1,250, based upon five hours of attorney time at $250 per hour, plus a filing fee of $60. The notice is sufficient with respect to sanctions against Defendant.

CONCLUSION AND ORDER

Plaintiff’s motion to compel the deposition of Defendant’s person most qualified to testify on specified topics is granted. The deposition shall occur with twenty (20) days of notice unless the parties stipulate to a different date, assuming the depositions have not occured.

Plaintiff’s motion to compel the depositions of Marilyn Dowdle, Susan Montgomery; and Joann Vorndran is granted. The depositions shall occur with twenty (20) days of notice unless the parties stipulate to different dates, assuming the depositions have not occurred.

Plaintiff’s motion to compel the deposition of Marc Incerpi, M.D. is denied without prejudice. The parties are ordered to meet-and-confer to determine whether Defendant will stipulate to allow Plaintiff to take this deposition in advance of the deadline for Plaintiff’s opposition to Defendant’s motion for summary judgment.

Defendant (but not Defendant’s counsel) is ordered to pay sanctions in the amount of $1,310 within twenty (20) days of notice of this order.

Plaintiff shall provide notice and file proof of such with the Court.

DATED: November 1, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

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