Case Number: KC065188    Hearing Date: July 08, 2014    Dept: J

Re: Bernadette Salazar, etc., et al. v. Georgia Atkison SNF, etc., et al. (KC065188)

MOTIONS TO COMPEL FURTHER RESPONSES TO (1) FORM INTERROGATORIES, SET ONE, AND (2) REQUEST FOR PRODUCTION, SET ONE

Moving Parties: Plaintiffs

Respondent: Defendant Oscar L. Chien, M.D.

POS: Moving OK; Opposing OK

Plaintiff, through her successor in interest, alleges elder abuse, negligence and wrongful death while a resident at Defendant’s nursing facility. Plaintiff commenced this action on 12/5/12, and a First Amended Complaint was filed on 2/24/14 asserting causes of action for:

1. Elder Abuse and Neglect
2. Violation of Patient’s Bill of Rights
3. Elder Abuse and Neglect
4. Wrongful Death

The Final Status Conference is set for 10/06/14. Trial is set for 10/14/14.

Plaintiff Bernadette Salazar, by and through her Successor-in-Interest, Francisco Salazar, Jr., (“Plaintiff”) moves for an order compelling Defendants Oscar L. Chien, M.D. (“Chien”) and Hsiu Ho, N.P. (“Ho”) to provide further responses to Form Interrogatories, Set One, and seeks monetary sanctions of $810.00. Plaintiff also moves for an order compelling Defendant Chien to provide further responses to Request for Production, Set One, and seeks monetary sanctions of $1,560.00.

Defendant Ho was dismissed from this action on June 3, 2014. Thus, the motion is applicable to Defendant Chien only.

CCP §§ 2030.300 and 2031.310 allow a party to file a motion compelling further responses to interrogatories or document requests if it finds that the responses are inadequate, incomplete, or evasive, or an objection in the response is without merit or too general. The motion shall be accompanied with a meet and confer declaration. (CCP §§ 2030.300(b); 2031.310(b).) Unless notice of the motion is given within 45 days of the service of the response, or any supplemental response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response. (CCP §§ 2030.300(c); 2031.310(c).)

MEET AND CONFER:

Anna H. Cronk, counsel for Plaintiff, represents that she sent correspondence to defense counsel to meet and confer regarding the deficient responses on or about April 11, 2014; and that defense counsel responded on or about April 25, 2014, representing that some of the responses would be provided, but no further responses were provided. (Motion, Cronk Decl.)

Paul M. Corson, counsel for Defendant, in opposition, represents that Defendant agreed to supplement some of the responses and attempted to engage in further meet and confer including an informal discovery conference, but that the suggestions were ignored by Plaintiff. (Opposition, Corson Decl.) Counsel also represents that further responses to majority of the discovery responses at issue were served on May 7, 2014. (Ibid.) Defendant contends that Plaintiff failed to meet and confer in good faith.

Under the circumstances, it does not appear that Plaintiff’s meet and confer efforts were adequate. Defense counsel, in the April 25, 2014 letter, responded to Plaintiff’s meet and confer letter and agreed to provide further responses to some of the discovery at issue. Defense counsel also suggested an informal discovery conference to discuss the merits of the responses. Thereafter, on May 7, 2014, Defendant served his further responses. However, it appears that Plaintiff did not know that the further responses had been served and the instant motions were filed on May 8, 2014. It appears that had Plaintiff attempted to follow up and/or further meet and confer, these motions may not have been necessary.

FORM INTERROGATORIES:

Plaintiff seeks further responses to Form Interrogatory Nos. 2.12, 2.13, 12.1, 12.2, 12.3, and 12.6. Defendant, in opposition, represents that further responses to Form Interrogatory Nos. 2.12, 2.13 and 12.1 were served on May 7, 2014. (Opposition, Corson Decl., Exh. B.) Thus, the motion as to those interrogatories is deemed moot.

Form Interrogatory Nos. 12.2, 12.3 and 12.6:

In response to these interrogatories, Defendant raised various objections, but provided a response. Specifically, Defendant responded that Defendant or anyone else acting on its behalf did not interview any individuals concerning the incident (No. 12.2); Defendant or anyone acting on its behalf did not obtain a written or recorded statement from any individual concerning the incident, none that are not immune from discovery or otherwise privileged (No. 12.3); and that there was no report made by any person concerning the incident (no. 12.6). It appears that the responses are adequate. Thus, further responses are not warranted.

REQUEST FOR PRODUCTION:

Plaintiff seeks further responses to Request for Production Nos. 1, 2, 3, 4, and 6. Defendant, in opposition, represents that further responses to Request for Production Nos. 1, 3, 4 and 6 were served on May 7, 2014. (Opposition, Corson Decl., Exh. A.) Thus, the motion as to those requests is deemed moot.

Request for Production No. 2:

Counsel for Defendant concedes that further responses are warranted to this request but that he inadvertently failed to provide further responses, and that further responses will be provided. Thus, if the responses have not been provided by the time this motion is heard, Defendant is ordered to provide further responses within 5 days of the hearing.

SANCTIONS:

Monetary sanctions are authorized against the “party, person or attorney” who unsuccessfully makes or opposes a motion to compel. (CCP § 2030.300(d).)

Failing to make a “reasonable and good faith attempt” to resolve the issues informally before a motion to compel is filed constitutes a “misuse of the discovery process.” Monetary sanctions can be imposed against whichever party is guilty of such conduct. (CCP § 2023.020.)

Plaintiff’s request for monetary sanctions is denied. The motions are granted in part and denied in part. Moreover, Plaintiff’s meet and confer efforts were inadequate.

Defendant’s request for monetary sanctions is also denied. It appears that Defendant’s initial responses were deficient. While Defendant contends that Plaintiff’s meet and confer efforts were inadequate, it appears that counsel for Defendant could have followed up with counsel for Plaintiff to let her know that further responses were being prepared and served.