Case Name: Andrei Belorousou v. Kaiser Foundation Hospitals
Case No.: 17CV309032

This is an employment dispute between Plaintiff Andrei Belorousou (“Plaintiff”) and Defendant Kaiser Foundation Hospitals (“Defendant”) primarily based on alleged discrimination and wrongful termination. Plaintiff was employed by Defendant as a nurse at Kaiser Hospital’s Intensive Care Unit (“ICU”) from February 2005 until his termination in October 2016.

Plaintiff’s operative Second Amended Complaint (“SAC”) states claims for: 1) Violation of Health & Safety Code § 1278.5; 2) Violation of Labor Code §1102.5; 3) Violation of Labor Code §98.6; 4) Violation of Labor Code §6310; 5) Defamation (alleging that false oral statements were made that Plaintiff was caught with a drug bottle in his pocket and then terminated for drug diversion); 6) False Light Invasion of Privacy (based on the same oral statements) ; 7) Disability Discrimination (FEHA) (alleging that Plaintiff was not provided reasonable accommodation for alleged high blood pressure/hypertension, cataracts, depression and anxiety); 8) National Origin Discrimination (FEHA) (alleging Plaintiff was discriminated against because of his Russian origin); 9) Retaliation (FEHA); 10) Failure to Prevent Discrimination/Retaliation (FEHA), and; 11) Wrongful Termination.

On April 25, 2019 Defendant’s motion for summary judgment/adjudication was heard. The Court’s April 26, 2019 Order denied that motion except as to Plaintiff’s request for punitive damages. The Court granted Defendant summary adjudication of that damage claim, finding that Plaintiff had no evidence from which a reasonable inference could be drawn that anyone involved in his termination was an officer, director or managing agent. The matter is set for trial on August 19, 2019.

Currently before the Court is Defendant’s two motions to compel further responses to its Special Interrogatories (“SIs”), set two, and related Requests for Production of Documents (“RFPDs”). The motions were separately noticed but are supported by a single combined memorandum of points and authorities. Plaintiff submitted a single opposition that only addresses the motion to compel further responses to SIs.

I. History of the discovery dispute
Defendant served its SIs, set two, and its related RFPDs on Plaintiff on August 23, 2018. (See Declaration of Defense Counsel Andrea Bednarova at ¶¶2-3 and attached exhibits 2-3; Declaration of Plaintiff’s Counsel Kyle Pruner at ¶2.)

Plaintiff’s initial responses to this discovery were provided on October 18, 2018, with signed verifications following one month later. (See Bednarova Decl. at ¶¶5-6 and exhibits 4 & 5; Pruner Decl. at ¶3.)

After an agreement was reached extending Defendant’s deadline for bringing motions to compel, Defense Counsel sent Plaintiff’s counsel a meet and confer letter discussing Plaintiff’s initial responses to the SIs and RFPDs on February 15, 2019. (See Bednarova Decl. at ¶¶7-8 and exhibits 6 & 7; Pruner Decl. at ¶4 and attached exhibit A.)

On February 18, 2019 Plaintiff’s Counsel sent a responding meet and confer letter, indicating that Plaintiff would provide supplemental responses to certain SIs and RFPDs. (See Bednarova Decl. at ¶9 and exhibit 8; Pruner Decl. at ¶5 and exhibit B.) At this point Mr. Pruner states “Defendant never responded to Plaintiff’s letter, putting an end to the unsuccessful meet and confer efforts.” (Pruner Decl. at ¶6.) This is inaccurate.

On February 22, 2019 a paralegal from Mr. Pruner’s office contacted Defense Counsel seeking a two week extension of time to provide the promised supplemental discovery responses, with March 12, 2019 being the new date by which supplemental responses would be provided. The extension was agreed to on the condition that Defendant’s deadline to bring a motion to compel would be extended to April 5, 2019. (See Bednarova Decl. at ¶10 and exhibit 9.)

On March 21, 2019, with Plaintiff’s self-selected deadline for producing further responses having come and gone, Defense Counsel set another meet and confer letter. (See Bednarova Decl. at ¶11 and exhibit 10.) The March 21, 2019 letter stated in pertinent part, “[w]e have not received the further responses your office indicated would be served on March 12, 2019. Based on your letter dated February 18, 2019, we understand Plaintiff is going to provide further responses to Interrogatories 16-30 and Requests for Production 46, 49, 52, 54-55, 65-66, and 68, and accordingly they are not further addressed in this letter. Please understand, however, that we will move to compel if we do not receive timely further responses.”

Defendant’s motion to compel was filed on April 5, 2019.

Mr. Pruner states that “[o]n or about May 31, 2019 and June 3, 2019, Plaintiff requested that Defendant withdraw it motion to compel, because Plaintiff supplemented his responses, Defendant refused Plaintiff’s requests.” (Pruner Decl. at ¶9.) No evidence of such requests is provided.

II. Motion to compel further responses to SIs
Defendant moves to compel Plaintiff to provide further responses to SI Nos. 16, 17, 18, 20, 21, 23, 24, 27, 28, 29, 30, 31, 32, 34, 36, 37 and 38. (See Defendant’s Notice of Motion to Compel further SI responses at p. 2:5-7.)

A. Effect of service of amended responses
On May 30, 2019, almost eight weeks after this motion was filed and more than two months after the date Plaintiff counsel’s office had stated further responses would be provided by, Plaintiff submitted verified supplemental responses to SI Nos. 27, 28, 29, 30, 31 and 32. (See Ex. C to Pruner Decl.) Despite prior representations from Plaintiff’s Counsel no supplemental response to any RFPDs were provided.

When amended discovery responses are served after a motion to compel is filed, the Court has substantial discretion in deciding how to rule in light of the particular circumstances presented. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409.) Through this discretion, the Court might deny the motion to compel as moot and just impose sanctions, or examine the responses to determine if they are code-compliant. (Id. at p. 409.)

Here, with one exception (SI No. 27), the Court declines to examine the supplemental responses and deems the motion to compel further responses to SI Nos. 28, 29, 30, 31 and 32 to be MOOT.

Regarding SI no. 27, that interrogatory requested in pertinent part that Plaintiff identify “each physical therapy staff you reference in paragraph 53 of your SAC.” Plaintiff’s supplemental response, stripped of objections, states “Plaintiff does not reference any ‘physical therapy’ staff in paragraph 53 of his SAC. As such, Plaintiff cannot answer this interrogatory.” This is plainly inaccurate, as paragraph 53 of the SAC includes the sentence “In and around May, 2016, pharmacy staff and physical therapy staff communicated the same story to several ICU nurses.” (Court’s emphasis.) The Court assumes this was an oversight by Plaintiff’s Counsel rather than a deliberate false statement. In any event the motion to compel a further response is GRANTED as to SI No. 27 and Plaintiff shall serve Defendant with a verified, code-compliant further response, without objections, within 20 days of the date of filing of the final order on this motion.

B. Remaining interrogatories at issue
The remaining SIs at issue are Nos. 16, 17, 18, 20, 21, 23, 24, 34, 36, 37 and 38.

If a party demanding a response to an interrogatory deems that an answer to a particular interrogatory is evasive or incomplete, an exercise of the option to produce documents is unwarranted or inadequate, or an objection to an interrogatory is without merit or too general, that party may move for an order compelling a further response. (CCP §2030.300(a)(1)-(3).) If a timely motion to compel a further response to an interrogatory has been filed, the burden in on the responding party to justify any objection to the discovery request. (Fairmont Ins. Co. v. Super Ct. (2000) 22 Cal.4th 245, 255.)

As to SIs 16, 17, 18, 20, 21, 23 and 24, while the Court notes that, as to this groups of SIs, Plaintiff’s opposition and separate statement only address SIs 18, 21 and 24, the Court also notes that these SIs all ask similar questions and, where Plaintiff has made a responding argument that argument is essentially the same as to SIs 18, 21 and 24. Each SI in this group asks Plaintiff to identify the date (exact or approximate) of any occasion on which he observed other ICU nurses fail to comply with a specified procedure or rule that Defendant contends are easily complied with in a normal ICU and that were part of the stated (possibly pretextual) reasons for Plaintiff’s suspension and termination. Plaintiff responded to each of these SIs with unsupported boilerplate objections.

To the extent the opposition to this motion addressees any of the SIs in this group (Nos. 18, 21, and 24 only) Plaintiff now claims that it is “simply impossible” to answer them as worded. This is of course clearly untrue and the motion is GRANTED as to SIs 16, 17, 18, 20, 21, 23 and 24 as follows: If it is Plaintiff’s position that he cannot recall the actual or approximate dates of any occasion he observed any of the conduct specified in these SIs, the identities of any nurses involved, or any of the other information requested, he shall state exactly that in further verified code-compliant responses to each of these SIs. To the extent Plaintiff can recall any of the information requested in any of these SIs (an approximate date he claims to have observed any of the behavior described in any of these SIs, the identity of a nurse engaged in any of the specified behaviors, the name of a medicine or the identification information for any patient involved where requested, etc.) he shall so state in further verified code-compliant responses. Such responses shall be provided within 20 days of the date of filing of the final order on this motion. All stated objections to SIs 16, 17, 18, 20, 21 23, and 24 are waived for failure to support them.

As to SI no. 34, this interrogatory asks Plaintiff to “State the phone number from which YOU made calls to Richard Contreras in August 2016.” Plaintiff’s initial response to this SI consists of nothing but unsupported boilerplate objections. In his opposing separate statement Plaintiff argues, in pertinent part: “Plaintiff simply does not know this information. This has been communicated to Defendant . . . Plaintiff does not know which telephone number he called Richard Contreras from in August 2016. . . . Plaintiff did do a reasonable search and found that he does not have this number.”

The motion to compel is GRANTED as to SI no. 34 as follows: If it is Plaintiff’s position that he cannot recall what number he called Mr. Contreras from in August 2016 and that after a reasonable search he has been unable to learn that information he shall state that in a further verified response, to be provided within 20 days of the date of filing of the final order on this motion. All asserted objections are waived as unsupported.

Regarding SI Nos. 36, 37, and 38, the motion to compel is DENIED. These three SIs all seek information related to Plaintiff’s PAGA damage claims. Plaintiff dismissed his claims for damages and/or penalties under the PAGA on April 11, 2019. This portion of the motion to compel should have withdrawn at that point, as the information sought was no longer relevant.

III. Motion to compel further responses to RFPDs
Defendant moves to compel further responses to RFPDs 61, 62, 63, 65, 66 and 68. (See Defendant’s Notice of Motion to Compel further RFPD responses at p. 2:5-6.)

A motion to compel further responses to a request for production of documents “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” (CCP §2031.310(b)(1); Kirkland v. Sup. Ct. (2002) 95 Cal.App.4th 92, 98 (“Kirkland”).) To establish “good cause,” the burden is on the moving party to show both relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case) and specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). (Glenfed Develop. Corp. v. Sup. Ct. (1997) 53 Cal.4th 1113, 1117.) Where the moving party establishes “good cause,” the burden shifts to the responding party to justify its objections. (Kirkland, supra, 95 Cal.App.4th at p. 98.)

As noted above, Plaintiff has failed to file any opposition to this motion. Rather than simply grant the entire motion as unopposed, the Court will examine the RFPDs that are the subject of this motion, particularly those that are dependent upon or related to the SIs addressed above, some of which have received supplemental responses.

The motion is DENIED as MOOT as to RFPD no. 61, seeking “ALL DOCUMENTS that support your response to Special Interrogatory 31.” As Plaintiff provided a supplemental response to SI no. 31 after these motions were filed, the Court declines to further consider this RFPD. (See Sinaiko, supra.)

Regarding RFPD Nos. 62 and 63, the motion to compel is GRANTED, in part, as follows: RFPD no 62 seeks production of “all documents” identified in the response to SI no. 33. The Court notes that Defendant has not moved to compel any further response to SI no. 33, which seeks to have Plaintiff “identify” all evidence “that shows the call to Richard Contreras you allege you made in August 2016.” (See exhibit 3 to the Bednarova Decl.) Accordingly, no further response to RFPD 62 is required. RFPD No. 63 requests Plaintiff’s “detailed phone bill” (a term which is not further defined) for August 2016 for any phone number identified in Plaintiff’s response to SI no. 34, which Defendant has moved to compel a further response to, and which is discussed above.

If, as anticipated, the further verified response to SI No. 34 that the Court has ordered Plaintiff to provide consists of nothing more than a representation from Plaintiff (under penalty of perjury) that he cannot remember what phone number he purportedly called Richard Contreras from in August 2016, than no further documents need be provided in response to RFPD No. 63. If any phone number is identified in the further response to SI 33 that the Court has ordered Plaintiff to provide, then Plaintiff shall also provide a further verified response to RFPD no. 63, including copies of responsive documents, within 20 days of the date of filing of the final order on this motion. All stated objections are waived as unsupported, but Plaintiff shall be permitted to redact phone calls to any numbers other than those phone numbers identified in the further response to SI No. 34, as well as any personal financial information, from any copies of any August 2016 phone bill produced in response to RFPD no. 63.

The Motion is DENIED as to RFPD no. 65, seeking “all documents” related to the withdrawn claim for PAGA damages or penalties. As with the related SIs, this RFPD ceased to be relevant when Plaintiff dismissed his PAGA damage and/or penalty claims on April 11, 2019 and this portion of the motion should have been withdrawn.

Regarding RFPD Nos. 66 and 68, these requests seek “all documents” regarding communications with “Mohini Chand” (RFPD no. 66) or “Frank Amag” (RFPD no. 68) regarding Defendant during the relevant time period. Plaintiff’s initial response to RFPD No. 66, apart from boilerplate objections, stated that “Plaintiff will produce all responsive documents in Plaintiff’s possession and control, of which Plaintiff is aware, and which may relate to this request.” Plaintiff’s initial response to RFPD No. 68, apart from boilerplate objections, included contradictory statements that Plaintiff would both “produce all responsive documents in Plaintiff’s possession and control,” and also that “Plaintiff currently has no documents responsive to this request.”

The motion to compel is GRANTED as unopposed as to RFPD Nos. 66 and 68. Plaintiff shall provide further verified responses to these RFPDs within 20 days of the date of filing of the final order on this motion. These responses shall clearly state whether any responsive documents are in Plaintiff’s possession or control or not and any responsive documents shall be produced. All objections are waived as unsupported. To the extent Plaintiff claims that any responsive documents in his possession or control are covered by the attorney-client privilege or contain attorney work product, Plaintiff shall produce a privilege log with the further responses.

Request for monetary sanctions
In the notice of motion to compel further responses to SIs Defendant requests monetary sanctions against Plaintiff and his counsel in the amount of $6,388.00 “for opposing the Motion without substantial justification.” The notice of motion to compel further responses to RFPDs includes a similar request in the amount of $3,676.00.

The basis for the amount of sanctions sought is set forth in the declaration of Defense Counsel Bednarova in support of both motions. (See Bednarova Decl. at ¶¶ 15-16.) Her declaration indicates that the requested amount of sanctions includes anticipated future billings and expenses. The Court does not award sanctions for anticipated expenses. (See Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551 [the court awards sanctions only for expenses actually incurred, not for anticipated expenses].) Accordingly while monetary sanctions are GRANTED the amount awarded is reduced to $7232.00, reflecting the expenses actually incurred in preparing the initial motions.