Case Number: 19STCV08268 Hearing Date: December 13, 2019 Dept: A

Amadeo v Ip, M.D.

Motion to Compel Further Responses to Special Interrogatories

Calendar:

07

Case No.:

19STCV08268

Hearing Date:

December 13, 2019

Action Filed:

March 08, 2019

Trial Date:

October 13, 2020

MP:

Defendant Michael S. Ip, M.D.

RP:

Plaintiff Gloria Amadeo

ALLEGATIONS:

The instant action arises from alleged personal injuries suffered by Plaintiff Gloria Amadeo (“Plaintiff”) due to the acts and omissions of Defendants Michael S. Ip, M.D. (“Ip”); and Doheny Eye Institute, Inc. d/b/a Doheny Eye Center UCLA (“DEI” and together the “Defendants”) in treating Plaintiff for Wet Macular Degeneration.

Plaintiff filed her initial Complaint of March 08, 2019, and First Amended Complaint (“FAC”) on August 29, 2019. The FAC alleges seven causes of action sounding in (1) Medical Negligence; (2) Fraudulent Concealment; (3) Constructive Fraud; (4) Breach of Fiduciary Duty; (5) Medical Battery; (6) Lack of Informed Consent; and (7) Negligent Infliction of Emotional Distress (“NIED”). On October 25, 2019, the Court sustained a demurrer to the Second, Third, and Fifth Causes of Action without leave to amend.

PRESENTATION:

Ip filed instant motion to compel further responses to Special Interrogatories on November 06, 2019. Plaintiff opposed the motion on December 02, 2019, and a reply was filed on December 06, 2019.

RELIEF REQUESTED:

Ip moves to compel further responses to Special Interrogatories Nos. 1, and 36 through 80.

DISCUSSION:

Standard of Review – Code of Civil Procedure §2030.300 provides for a party to bring a motion to compel further responses to interrogatories where the responding party provides inadequate, incomplete, or evasive responses, or the objections are too general or without merit. The propounding party must submit a declaration under Code of Civ. Proc. §2016.040 stating facts demonstrating a good faith and reasonable effort to informally resolve each issue raised by the motion. Code of Civ. Proc. §2030.300(b). The motions must be brought within 45 days of service of the responses or supplemental responses. Code of Civ. Proc. §2030.300(c). Sanctions are mandatory against the party or attorney who unsuccessfully makes or opposes a motion to compel further unless the party acted with substantial justification or the circumstances make imposition of sanctions unjust. Code of Civ. Proc. §2030.300(d).

Meet and Confer – On review of the Declaration of Brenda K. Benson, the Court finds that Ip satisfied his meet and confer obligation.

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Timeliness – Plaintiff objects to the instant motion on the grounds that Ip failed to file the instant motion within the 45-day time limit described in Code of Civ. Proc. §2030.300(c). However, it is clear that on September 30, 3019, Plaintiff agreed to “granting a reasonable extension to accommodate an IDC.” Opposition, Ex. 5. The time to conduct the Informal Discovery Conference and the follow up motion was thereafter defined in the October 04, 2019, letter, indicating that the attorneys understood the IDC to take place sometime in October, pending the Court’s availability, and the instant motion filed on November 07, 2019, if the IDC failed for any reason. Opposition, Ex. 7. Following this correspondence, the parties became aware of the unavailability of IDCs at the Burbank Courthouse, thus causing the IDC to ‘fail’ resulting in the agree-upon time to file the motion set to November 07, 2019. Opposition, Ex. 8 (In the letter Dated October 10, 2019).

Having made the offer to extend the time to file the instant motion by a “reasonable extension” past the IDC date, Plaintiff cannot now retroactively retract the offer when doing so would inure to their benefit procedurally.

Accordingly, Plaintiff’s objection is overruled as to the timeliness of the motion.

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Excessive Discovery Propounded – Plaintiff next cites to Code of Civ. Proc. §2030.090 to argue that the discovery propounded is excessive, burdensome, and requests that the Court deny the motion on the grounds that the 280 Special Interrogatories propounded causes unwarranted burden and expense. Opposition, 7:1-8:7. This argument fails on two grounds: First, because Plaintiff is citing the grounds upon which a party may seek affirmative relief by way of a motion for a protective order – and Plaintiff has not sought such relief from the Court; and Second, Plaintiff has not shown good cause for such relief, as the moving papers only contain the asserted facts that there are 280 Special Interrogatories propounded and Plaintiff is a 72 years old – both of which are not disputed, but do not serve as good cause of a protective order.

Accordingly, to the extent that Plaintiff objects on the grounds of the large number of interrogatories propounded and the Plaintiff’s age, such objection is overruled.

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Merits – On review of the Special Interrogatories at issue in the instant motion, together with the objections and arguments in opposition to the interrogatories, the Court finds as follows:

For Special Interrogatories Nos. 36-42, 48-50, 52-73, & 75-80: the objections are overruled, and the motion is granted.

For Special Interrogatories Nos. 43-47, 51, & 74: the objections are overruled, and the motion is granted in part. The Court notes that the Special Interrogatories seeking Plaintiff’s medical information are not limited to those physical conditions relevant to the alleged injuries in the instant action. Such additional physical ailments not related to case issues are protected by the California Constitution’s right to privacy. Cal. Const. Art. I, §1; see also Board of Medical Quality Assurance v. Gherardini (1979) 93 Cal. App. 3d 669, 679 (“The individual’s right to privacy encompasses not only the state of his mind, but also his viscera, detailed complaints of physical ills, and their emotional overtones.”). Accordingly, the Court will limit the production to those physical conditions relevant to the alleged injury herein – Plaintiff’s eyesight.

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Sanctions – Denied as each party was successful in part and unsuccessful in part..

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RULING: THE MOTION IS GRANTED, BUT THE COURT WILL LIMIT THE PRODUCTION OF MEDICAL INFORMATION REQUESTED IN SPECIAL INTERROGATORIES NOS. 43-47, 51, & 74 TO INJURIES RELATED TO PLAINTIFF’S EYES/VISION; AND

SANCTIONS ARE DENIED.

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendant Michael S. Ip, M.D.’s Motion to Compel Further Responses to Special Interrogatories came on regularly for hearing on December 13, 2019, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION IS GRANTED, BUT THE COURT WILL LIMIT THE PRODUCTION OF MEDICAL INFORMATION REQUESTED IN SPECIAL INTERROGATORIES NOS. 43-47, 51, & 74 TO INJURIES RELATED TO PLAINTIFF’S EYES/VISION; AND

SANCTIONS ARE DENIED.

DATE: _______________ _______________________________

JUDGE