2017-00221815-CU-PO

Ana Martin vs. Lincoln Square Post Acute

Nature of Proceeding: Motion to Compel Form Interrogatories (Benjamin Pyper)

Filed By: Collins, Andrew J.

Plaintiffs’ motion to compel defendant Benjamin Pyper (“Defendant” or “Pyper”) to further respond to form interrogatories, set one, is ruled upon as follows.

In this elder abuse action, Plaintiffs allege Pyper and other named defendants neglected decedent during her 21 day stay at a skilled nursing facility. Specifically, Plaintiffs allege defendants failed to take precautions necessary to prevent decedent from contracting an infection following a total knee replacement surgery. Plaintiffs allege defendants’ failure to ensure safeguards and sanitary protections were in place caused decedent to contract a C.diff infection, become septic, and ultimately pass away.

Plaintiffs served form interrogatories, set one, on Defendant on January 18, 2018. Defendant served verified responses on March 22, 2018. The parties then met and conferred in writing, but were unable to resolve their disagreement. Plaintiffs now move to compel further responses to form interrogatories 2.5, 12.1, 12.2-12.7, 13.1, 14.1, 15.1, and 16.1-16.5.

Defendant’s Objection to “INCIDENT” – OVERRULED

Defendant’s objection to some of the at-issue interrogatories on the ground that the term “INCIDENT” is vague and ambiguous in the context of this discovery lacks merit. The term “INCIDENT” is defined as “the circumstances and events surrounding the alleged accident, injury, or other occurrence or breach of contract giving rise to this action or proceeding.” Plaintiff’s complaint alleges a 21 day stay in November of 2017 at a skilled nursing facility during which time she was allegedly neglected. During meet and confer efforts, Plaintiffs further defined “INCIDENT” to mean the neglect and abuse suffered by Ana Martin while in the care and custody of defendant Lincoln Square Post Acute in November 2015 as detailed in Plaintiff’s complaint.

Defendant argues the Judicial Council Form Interrogatories’ definition of “INCIDENT”

is more applicable to a discrete injury such as a motor vehicle accident rather than a 21 day residency in a skilled nursing facility. Indeed, while it would be easier to respond if the term “INCIDENT” was limited to a discrete injury or singular event, this is not a basis to avoid providing sufficient discovery responses.

The Court finds Plaintiffs’ definition is not so vague and ambiguous that Defendant cannot frame a response and Defendant’s objection on this basis in each place it is interposed is overruled. Defendant must make a good faith effort to respond to the discovery based on Plaintiff’s refined definition of “INCIDENT.”

Form Interrogatory 2.5 – DENIED

This interrogatory seeks Defendant’s present residence address and his address for the last five years. Defendant objected on privacy and relevance grounds and responded that Defendant can be contacted through counsel. Plaintiffs’ argument that they need this information to determine Defendant’s “lifestyle” and “opulent residence” is not persuasive. The Court finds Defendant’s “lifestyle” is not reasonably calculated to lead to the discovery of admissible evidence in this elder abuse case. Although this is a form interrogatory, it does not necessarily follow that, under the facts of each case, each interrogatory is relevant. No further response is necessary.

Form Interrogatory 12.1 – GRANTED

This interrogatory seeks witness information.

Defendant’s third party privacy objection lacks merit. Indeed, Defendant does not even address this objection in its opposition. The discovery system in California “is founded on the understanding that parties use discovery to obtain names and contact information for possible witnesses as the starting point for further investigations. … The right of privacy in California Constitution (art. I § 1), ‘protects the individual’s reasonable expectation of privacy against a serious invasion.” (Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1250.) As to third-party privacy rights, the Court must examine whether there is a legally-protected privacy interest at issue based on established social norms, whether the claimant possesses a reasonable expectation of privacy under the circumstances, and if the invasion of privacy alleged is serious in nature, scope and potential impact to constitute an egregious breach of social norms. ( Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 370.) If the claimant has met the test of an invasion of a privacy interest, the interest must then be measured against other competing or countervailing interests in a balancing test. (Id. at 371.) Here, Defendant has not provided the Court with any facts, information or argument regarding these potential third-party privacy interests for the Court to undertake this evaluation.

If Defendant legitimately claims that some portion of its response would improperly impact third party privacy rights, then Defendant is obligated to so specify and prepare and provide to Plaintiffs a sufficiently detailed privilege log so that Plaintiffs may evaluate the assertion of the protections and privileges.

While Defendant responds to 12.1 that Plaintiffs could find the identities of witnesses in decedent’s patient chart and that if Plaintiffs could not discern the identity of anyone who made a note in the chart, they should submit a request for clarification to defense counsel, this interrogatory calls for Defendant to identify witnesses, not Plaintiff.

Defendant’s reliance on CCP § 2030.230 is also insufficient. First, Defendant has not shown that answering the interrogatory would in fact require him to provide a compilation, abstract, audit or summary of his records to answer, that no such compilation exists, and that the burden of preparing the compilation would be substantially the same for Plaintiff. (CCP § 2030.230.) Nor did the response refer to the documents “in sufficient detail to permit the propounding party to locate and to identify, as readily as the responding party can, the documents from which the answer may be ascertained.” (CCP § 2030.230.) “A broad statement that the information is available from a mass of documents is insufficient.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 784.)

A further response is required.

Form Interrogatories 12.2-12.5 – GRANTED

These interrogatories seek information regarding interviews, photographs, diagrams, etc. regarding the INCIDENT.

Defendant asserts the attorney-client privilege and work-product doctrine, citing Nacht

& Lewis Architects v. Superior Court (1996) 47 Cal. App. 4th 214, 217-218. Although that case supports the defendants’ work product objection, where the attorney for defendant has interviewed the witnesses, the Nacht & Lewis court also held that “a list of potential witnesses who turned over to counsel their independently prepared statements would have no tendency to reveal counsel’s evaluation of the case. Such a list would therefore not constitute qualified work product.” As Defendant’s counsel has failed to represent that they interviewed all witnesses whose identities and witness statements are called for, that objection is overruled.

Defendant’s further objection that these interrogatories violate Evidence Code § 1157 is overruled. Defendant failed to indicate whether any information was actually withheld on this basis. Further, there is no evidence offered in the opposition in support of the peer review privilege. The burden of establishing privilege is on the entity resisting discovery and a positive showing must be made. (Brown v Superior Court (1985) 168 Cal.App.3d 489, 495, 500-501 (hospital must establish that requested discovery cannot be made without revealing proceedings or records of medical staff committees to which §1157 applies). Evidence Code section 1157 applies only to the record of and proceedings before a medical investigation committee. The section creates only a privilege against discovery from medical staff committees; it does not create a bar against introduction of evidence. Information developed or obtained by hospital administrators or others which does not derive from an investigation into the quality of care or the evaluation thereof by a medical staff committee, and which does not disclose the investigative and evaluative activities of such a committee, is not rendered immune from discovery under section 1157 merely because it is later placed in the possession of a medical staff committee or made known to committee members.” (Santa Rosa Memorial Hospital v. Superior Court (1985) 174 Cal.App.3d 711, 724.) A hospital cannot render its files immune from discovery simply by disclosing them to a medical staff committee. (Willits v Superior Court (1993) 20 Cal.App.4th 90, 100-101.) To the extent that any information was withheld on this basis, Defendant must provide further responses that provide sufficient factual information for other parties to evaluate the merits of that claim. (CCP § 2030.240.) Defendant may provide a privilege log.

Further responses are required.

Form Interrogatories 12.6 and 12.7 – GRANTED

These interrogatories seek reports regarding the incident and information regarding persons who inspected the scene.

As to 12.6, Defendant asserted the attorney client privilege, work product doctrine, and Evidence Code sections 1151 and 1157, and then inconsistently responded “there are no non-privileged reports.” Defendant’s objection based on Evidence Code sections 1151 and 1157 is overruled for the same reasons discussed above. As to Defendant’s objection based on privilege, if Defendant is withholding any documents based on privilege, Defendant must provide to Plaintiffs a sufficiently detailed privilege log so that Plaintiffs may evaluate the assertion of the protections and privileges.

As to 12.7, Defendant again asserted the attorney client privilege, attorney work product doctrine, and Evidence Code sections 1151 and 1157, and then responded “no.” Defendant’s objection based on Evidence Code sections 1151 and 1157 is overruled. This interrogatory does not require Defendant to disclose any peer review proceedings. As to Defendant’s objection based on privilege, if Defendant is withholding any documents based on privilege, Defendant must provide to Plaintiffs a sufficiently detailed privilege log so that Plaintiffs may evaluate the assertion of the protections and privileges.

Form Interrogatory 13.1 – DENIED

This interrogatory seeks information regarding surveillance. Defendant objected on the grounds the term “INCIDENT” is vague and ambiguous and asserted the attorney-client and attorney work product privileges, but then responded “without waiving these objections … No.” Plaintiffs contend these objections are meritless and that the response is insufficient because it states “without waiving these objections….”

The Court finds the response is sufficient. No further response is needed.

Form Interrogatory 14.1 – DENIED WITHOUT PREJUDICE

This interrogatory seeks information regarding contentions that anyone involved in the incident violated a statute, ordinance, or regulation. Defendant asserted the attorney-client privilege and work product doctrine and objected on the grounds that the interrogatory is vague, ambiguous, overbroad, unduly burdensome and oppressive. Defendant then responded “without waiving these objections … Not at this time. Discovery and investigation has just begun. Defendant reserves the right to use subsequently discovery information.”

The Court finds the response is sufficient. No further response is needed.

Form Interrogatory 15.1 – GRANTED

This interrogatory seeks facts, witnesses, and documents that support each affirmative defense Defendant raised in its answer. Defendant responded “Based on current information, defendant’s attorneys prepared an answer with a general denial and

appropriate affirmative defenses designed to address each and every possible factual scenario that could develop in the course of investigation and discovery. Discovery and investigation has just begun. Defendant reserves the right to use subsequently discovered information.”

This answer is insufficient. Each answer to an interrogatory must be “as complete and straightforward as the information reasonably available to the responding party permits. If an interrogatory cannot be answered completely, it shall be answered to the extent possible.” (CCP § 2030.220(a), (b).) Further, “[p]arties must state the truth, the whole truth, and nothing but the truth in answering written interrogatories.” (Scheiding v. Dinwiddie Const. Co. (1999) 69 Cal.App.4th 64, 76.) Where the question is specific and explicit, an answer that supplies only a portion of the information requested is improper. It also is improper to provide “deftly worded conclusionary answers designed to evade a series of explicit questions.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783.)

If Defendant has no facts at this time to support the specific affirmative defenses alleged, it must so indicate. A party served with interrogatories is required to make a reasonable investigation to ascertain facts when it has available to it sources of information pertaining to the matters involved in the interrogatories. (West v. Johnson

& Johnson Products, Inc. (1986) 174 Cal.App.3d 831, 874.)

A further response that complies with the subparts of interrogatory number 15.1 is required.

Form Interrogatories 16.1-16.5 – DENIED WITHOUT PREJUDICE

Defendant objects to these interrogatories on the grounds of vagueness of the term INCIDENT. On the grounds set forth above, that objection is overruled.

However, Defendant’s objection on the grounds that these interrogatories should not be propounded until Defendant has had an opportunity to conduct discovery of the alleged injuries is well taken. No response to these interrogatories is required and this time and the Court’s ruling on these interrogatories is without prejudice. A supplemental interrogatory may be propounded to obtain this information at a later date.

SANCTIONS

Given the mixed results of the motion, Plaintiff’s request for sanctions is DENIED.

Objection to Ex Parte Application

The Court notes Defendant submitted an “Objection to Plaintiff’s Ex Parte Application to Allow an Oversized Brief in Support of Plaintiffs’ Motion to Compel.” However, Plaintiffs did not file any such ex parte application with the Court, nor did they file an oversized brief. Therefore, the Court need not rule on this “objection.”

Conclusion

No later than June 22, 2018, Defendant shall provide further, verified responses to Plaintiffs’ form interrogatories, set one, consistent with the above.

Even where Defendant provided an answer to the interrogatory, Defendant must still provide further responses deleting the objections which this ruling specifically found lacked merit and/or which were not justified by Defendant in opposition.