Robinson v. Naruns, et al. CASE NO. 113CV249369
DATE: 18 April 2014 TIME: 9:00 LINE NUMBER: 14

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 17 April 2014. Please specify the issue to be contested when calling the Court and counsel.

On 18 April 2014, the following motions were argued and submitted, (1) defendant Shahin Fazilat, M.D.’s (“Fazilat”) motion to compel responses to form interrogatories, set one, special interrogatories, set one, request for production of documents, set one, and for monetary sanctions, (2) defendant Peter Naruns, M.D.’s (“Naruns”) motion to compel responses to form interrogatories, set one and for monetary sanctions, (3) Naruns’ motion to compel responses to special interrogatories, set one and for monetary sanctions, (4) Naruns’ motion to compel responses to request for production of documents, set one and for monetary sanctions, (5) defendant Rakesh Patel, M.D.’s (“Patel”) motion to compel responses to special interrogatories, set one, form interrogatories, set one, request for production of documents, set one, and for a response to a request for nature and amount of damages, and (6) plaintiff Elizabeth J. Robinson, Ph.D.’s (“Plaintiff”) motion for a protective order.

Plaintiff filed formal oppositions to the motions filed by Fazilat, Naruns, and Patel. Fazilat, Naruns, Patel and defendant Howard Rice, M.D. (“Rice”) filed formal oppositions to Plaintiff’s motion for a protective order.

Statement of Facts

This is a medical malpractice action arising from the alleged negligent medical treatment of Plaintiff for breast cancer between 6 January 2011 and 30 September 2012. Plaintiff alleges that Fazilat, Naruns, Patel, and Rice (collectively, “Defendants”) failed to exercise the degree of skill, knowledge, and care ordinarily possessed and exercised by medical professionals under similar circumstances. She further alleges that Defendants failed to advise her of the consequences of the treatment they provided, and as a result of the breaches of the standard of care, she had to undergo multiple corrective surgeries and incur significant expense. In her complaint, Plaintiff asserts two causes of action for professional negligence and lack of informed consent.

Discovery Disputes

On 26 September 2013, Naruns served a set of form interrogatories (“FI”), a set of special interrogatories (“SI”) and a set of requests for production (“RPD”) on Plaintiff. The parties agreed to extend the time to respond to the discovery until 14 November 2013.

On 1 October 2013, Fazilat served his FI, SI and RPD on Plaintiff. Plaintiff requested and received an extension until 20 November 2013 to respond to the discovery.

On 10 October 2013, Patel served his FI, SI and RPD and a request for a statement of damages on Plaintiff. The parties agreed to extend Plaintiff’s time to respond to the discovery until 12 December 2013.

On 16 October 2013, Rice served his FI, SI and RPD on Plaintiff. The parties agreed to extend Plaintiff’s time to respond to the discovery until 3 January 2014.

At the case management conference on 5 November 2013, Plaintiff’s counsel informed counsel for each defendant that a protective order to prevent the dissemination of Plaintiff’s medical records was necessary and Plaintiff would propose a stipulated protective order.

On 20 November 2013, Plaintiff’s counsel sent a proposed stipulated protective order to counsel for each defendant. Over the course of the next three months, each defendant declined to stipulate to the proposed protective order, indicating that it was unnecessary for a medical malpractice case.

On 10 February 2014, Falizat filed a motion to compel initial responses to his FI, SI, and RPD. On 14 February 2014, Naruns filed motions to compel initial responses to his FI, SI, and RPD. On 20 February 2014, Patel filed a motion to compel responses to his FI, SI and RPD and request for a statement of damages.

On 3 March 2014, Plaintiff filed a motion for a protective order.

On 4 March 2014, Plaintiff filed oppositions to the motions of Fazilat, Naruns and Patel.

On 3 April 2014, Rice filed his opposition to the motion for a protective order.

On 7 April 2014, Fazilat, Naruns, and Patel filed their respective oppositions to the motion for a protective order.

On 11 April 2014, Fazilat, Naruns and Patel filed their respective reply briefs in support of their motions to compel initial responses.

Discussion

I. Motions to Compel as to the FIs, SIs, and RPDs

Fazilat, Naruns, and Patel each seek an order compelling Plaintiff to provide responses to their FIs, SIs and RPDs. In opposition, Plaintiff contends that the motions should be denied because she is entitled to a protective order.

The party to whom interrogatories and or requests for production of documents have been propounded is required to serve a response within 30 days, or on any later date to which the parties have agreed. (See Code Civ. Proc., §§ 2030.260, 2030.270, 2031.260, 2031.270.) If the party to whom the discovery requests are directed fails to serve a timely response, that party waives any objections to the discovery. (Code Civ. Proc., §§ 2030.290, subd. (a), 2031.300, subd. (a).) The propounding party may move for an order compelling a response. (Code Civ. Proc., §§ 2030.290, subd. (b), 2031.300, subd. (b).) There is no limitation period (see Code Civ. Proc., §§ 2030.290, 2031.300) or meet and confer requirement for bringing a motion to compel an initial response. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411-412; Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905-906). The moving party need only show that the discovery was properly propounded and a response was not served. (See Leach v. Superior Court, supra, 111 Cal.App.3d at pp. 905-906.)

As noted above, pursuant to written agreements between the parties, Plaintiff was required to serve responses to Naruns’ sets of discovery by 14 November 2013, Fazilat’s sets of discovery by 20 November 2013, and Patel’s sets of discovery by 12 December 2013. Plaintiff acknowledges that she has yet to serve responses.

Plaintiff contends that by mailing a proposed protective order to each defense counsel, she has preserved her privacy objections and precluded any need to provide responses until a stipulated protective order was agreed to by each defendant.

Plaintiff’s argument is without merit. Code of Civil Procedure sections 2030.290 and 2031.300 provide that objections to discovery requests are waived if no timely responses are served. Plaintiff acknowledges that she has not served any responses and provides no authority for the proposition that making a proposal for a protective order preserved her objections and removed any obligation to respond to outstanding discovery.

Therefore, as the discovery has been properly propounded and responses have yet to be served, the motions to compel initial responses to Fazilat, Naruns, and Patel’s respective FIs, SIs and RPDs are GRANTED.

II. Motion to Compel Response to Request for Statement of Damages

Patel moves to compel a response to his request for a statement of damages. In opposition, Plaintiff contends that the motion should be denied because she is entitled to a protective order to protect her right to privacy in her medical records.

When a complaint is filed in an action to recover damages for personal injury or wrongful death, a defendant may at any time request a statement setting forth the nature and amount of damages being sought. (Code Civ. Proc., § 425.11, subd. (b).) After the receipt of this request, the plaintiff has 15 days to furnish the requested information. (Code Civ. Proc., § 425.11, subd. (b).) If the plaintiff fails to provide the requested information, the defendant may move for an order compelling plaintiff to serve a responsive statement. (Code Civ. Proc., § 425.11, subd. (b).)

Plaintiff acknowledges that she has not served a responsive statement. Instead, she contends that she does not need to respond to discovery until after an order protecting her right to privacy in her medical records is entered. This argument is not persuasive. Plaintiff has put forward no authority in support of the proposition that the mere proposal of a protective order stays all discovery.

In any case, it is unclear how a statement of damages would implicate her right to privacy. A statement of damages must set forth the nature and the amount of damages being sought. (Code Civ. Proc., § 425.11, subd. (b).) Therefore, service of a statement of damages would not intrude upon Plaintiff’s right to privacy in her medical records.

Accordingly, Patel’s motion to compel a response to his request for a statement of damages is GRANTED.

III. Motion for Protective Order

Plaintiff seeks a protective order shielding her private medical records from public disclosure. In opposition, Defendants contend that Plaintiff failed to promptly move for a protective order and good cause does not exist for the order.

A. Legal Standards

In general, “[a]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter … if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc., § 2017.010.) For good cause shown, a court may make any order that justice requires to protect any party or other natural person from unwanted annoyance, embarrassment, or oppression, or undue burden and expense. (Code Civ. Proc., §§ 2030.090, sub. (b), 2031.060, subd. (b).) A party must promptly move for a protective order. (Code Civ. Proc., §§ 2030.090, sub. (a), 2031.060, subd. (a).)

B. Timeliness of Motion

As a preliminary matter, Defendants contend that Plaintiff failed to promptly move for a protective order as she did not file this motion until almost five months after the service of the discovery at issue. In opposition, Plaintiff contends that her motion was promptly filed.

The determination of whether a motion for a protective order has been promptly filed is a fact specific inquiry entrusted to the discretion of the Court. (See Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 316 [filing ex parte application for order for shortening time for notice of motion of protective order within one week of learning opposing party unwilling to stipulate to protective order considered prompt.)

Here, the information submitted to the Court indicates that Plaintiff did not promptly file her motion. The discovery to which the proposed protective order would apply has been outstanding since September and October 2013. Plaintiff’s responses were due in November 2013, December 2013 and January 2014. As early as 18 December 2013, Plaintiff’s counsel was aware that at least one of the defendants refused to stipulate to the protective order. By 4 February 2014, Plaintiff’s counsel was aware that each defendant would not agree to the protective order. Only after Fazilat, Naruns and Patel filed their motions to compel initial responses to the FIs, SIs and RPDs did Plaintiff file this motion for a protective order. Therefore, taking into account the entirety of Plaintiff’s conduct, the Court finds that Plaintiff failed to promptly move for a protective order. This lack of timeliness, on its own, is sufficient to support the denial of the motion.

C. Merits of Motion for Protective Order

Plaintiff asserts there is good cause for the entry of a protective order to preserve and maintain the confidentiality of her medical records. She argues that Defendants’ discovery requests seek extensive private information, including her medical records, and it is undisputed that she has a right to privacy in those records (See Board of Medical Quality Assurance v. Gherardini (1979) 93 Cal.App.3d 669, 679.)

While Fazilat, Naruns and Patel acknowledge that the right to privacy normally extends to a patient’s medical records, they contend that good cause does not exist for the protective order because Plaintiff has already waived her right to privacy in regards to her responses to their FIs, SIs and RPDs. As discussed above, Plaintiff’s failure to serve timely responses to these discovery requests resulted in a waiver of objections, including her objections based on privacy. Therefore, as any privacy objection is waived, the purportedly intrusive nature of these requests cannot serve as a basis for a protective order.

To the extent that Plaintiff is more generally concerned about the potential dissemination of her medical records to nonparties, Plaintiff fails to articulate a cogent reason a protective order above and beyond the normal protections provided by state and federal law is necessary. As Defendants point out, they are prohibited from disseminating Plaintiff’s medical records for any unlawful purpose by the Health Insurance Portability and Accountability Act and the Confidentiality of Medical Information Act. (See Civ. Code, § 56.10, subd. (b)(8)(A) [provider of health care may not disclose medical information to the public without authorization or pursuant to a court order], 45 C.F.R. § 164.512(e)(1) [healthcare provider may not disclose medical information without formal discovery request or pursuant to a court order].) Therefore, as safeguards to prevent dissemination of Plaintiff’s medical information under both California and Federal law are already in place, a protective order is unwarranted.

D. Conclusion

Based on the foregoing, Plaintiff’s motion for a protective order is DENIED.

IV. Requests for Monetary Sanctions in Connection with Motions to Compel

A. Legal Standard

The court shall impose a monetary sanction against a party who unsuccessfully opposes a motion to compel initial responses unless it finds the party “acted with substantial justification” or “other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., §§ 2030.290, subd. (c), 2031.300, subd. (c).)

B. Fazilat’s Request for Monetary Sanctions

Fazilat makes a request for monetary sanctions against Plaintiff and her counsel pursuant to Code of Civil Procedure sections 2030.290 and 2031.300. Plaintiff’s opposition to Fazilat’s motion was unsuccessful, Plaintiff was not substantially justified, and no other circumstances make the imposition of sanctions unjust. Thus, the Court will award monetary sanctions against Plaintiff and her counsel.

Fazilat requests $780 in monetary sanctions. His counsel, Nafija Weston, declares that she bills at an hourly rate of $180 and spent 1.5 hours preparing the motion (for a total of $412.50). She further declares that she expects to spend 2.5 hours traveling to San Jose and attending the hearing (for a total of $450). The Court does not award sanctions for expenses not yet incurred. (See Cal. Code Civ. Proc. § 2023.030, subd. (a); Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551.) Consequently, the anticipated attorney fees are not compensable. The hourly rate and hours spent are otherwise reasonable. Finally, Fazilat seeks to recoup the $60 filing fee for the motion. This cost constitutes a reasonable expense. Accordingly, Fazilat’s request for monetary sanctions against Plaintiff and her counsel is GRANTED IN PART in the amount of $472.50.

C. Naruns’ Requests for Monetary Sanctions

In connection with each of Naruns’ three motions to compel, he makes a separate request for monetary sanctions against Plaintiff pursuant to Code of Civil Procedure sections 2030.290 and 2031.300. Plaintiff’s opposition to Naruns’ motions was unsuccessful, Plaintiff was not substantially justified, and no other circumstances make the imposition of sanctions unjust. Thus, the Court will award monetary sanctions against Plaintiff.

Naruns requests a total of $1,285 in monetary sanctions in connection with his three motions. His counsel, Kim Hara, declares that she bills at an hourly rate of $185 and spent 3.5 hours preparing the motions (for a total of $647.50). She further declares that she expects to spend 2 hours attending the hearing (for a total of $370). The Court does not award sanctions for expenses not yet incurred. (See Cal. Code Civ. Proc. § 2023.030, subd. (a); Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551.) Consequently, the anticipated attorney fees are not compensable. The hourly rate and hours spent are otherwise reasonable. Finally, Naruns seeks to recoup the $60 filing fee and $30 court reporter fee for each motion (for a total of $270). These costs constitute reasonable expenses. Accordingly, Naruns’ request for monetary sanctions against Plaintiff is GRANTED IN PART in the amount of $917.50.

Conclusion and Order

Fazilat, Naruns, and Patel’s motions to compel initial responses to their respective FIs, SIs and RPDs are GRANTED. Accordingly, Plaintiff shall serve verified, code-compliant responses, without objections, to those discovery requests within 20 calendar days of the filing of this Order.

Patel’s motion to compel a response to his request for a statement of damages is GRANTED. Accordingly, Plaintiff shall serve a code-compliant response within 20 calendar days of the filing of this Order.

Plaintiff’s motion for a protective order is DENIED.

Fazilat’s request for monetary sanctions against Plaintiff and her counsel is GRANTED IN PART in the amount of $472.50. Accordingly, Plaintiff and/or her counsel shall pay $472.50 to Fazilat’s counsel within 20 calendar days of the filing of this Order.

Naruns’ requests for monetary sanctions against Plaintiff are GRANTED IN PART in the total amount of $917.50. Accordingly, Plaintiff shall pay $917.50 to Naruns’ counsel within 20 calendar days of the filing of this Order.