Roman v.  Santa Clara Valley Medical Center		CASE NO. 112CV223557
DATE: 29 August 2014	TIME: 9:00	LINE NUMBER: 3

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 28 August 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 29 August 2014, the motion of Defendants County of Santa Clara, Lisa Lee, M.D., Marisa Chavez, M.D. and Michele P. Hugin, M.D. (“Defendants”) for an order compelling responses to demand for sets two and three of Defendants’ production of documents and for an order deeming set one of Defendants’ requests that admissions be deemed admitted was argued and submitted.[1]

Plaintiff did not file formal opposition to the motion.[2]

Apparently Defendants have not paid a court reporter fee of $30.00 for this motion.

I.  Statement of Facts.

Plaintiff files for this complaint bringing causes of action alleging medical negligence, lack of informed consent, and breach of contract arising out of an abdominal hysterectomy procedure involving the termination of a pregnancy at 21 weeks.  Plaintiff also claims to have been physically injured.

II.            Discovery Dispute.[3]

Defendants served two sets for demand for production of documents.  Set 2 was served on 12 May 2014.  Set 3 was served on 4 June 2014.  Defendants also served requests for admissions (set one) on 4 June 2014.  During the week of 20 to 25 July 2014, Plaintiff’s friend, Leonard Robbins, came to the office of Defense Council to serve responses to other written discovery.  Upon his request, defense counsel provided Mr. Robbins with additional copies of the foregoing discovery.  During that visit, defense counsel explained that it was his expectation that Plaintiff would serve verified responses and documents.

III.           Analysis.

A.           “Meet and Confer.”

Since there were no responses to the discovery, no meet and confer is required for this motion.  However, the parties are always encouraged to work out their differences informally so as to avoid the necessity for a formal order.  (McElhaney v. Cessna Aircraft Co. (1982) 134 Cal.App.3d 285, 289.)  The efforts made by defense counsel above suffice for purposes of this motion.

               B.           Requests for Production Of Documents. 

To prevail on its motion, a party needs to show is that the discovery requests were properly served, that the time to respond has expired, and that no response of any kind has been served.  (Leach v. Super. Ct. (1980) 111 Cal.App.3d 902, 905-906.)  A CCP § 2031.010 demand may be used to obtain inspection of “documents,” tangible things or land in the possession, custody or control of another party. Code Civ. Proc. § 2031.010(a).  Inspection is limited to matters within the permissible scope of discovery (“relevant to subject matter”) and not protected by privilege, work product, right of privacy, etc.  Code Civ. Proc. § 2031.010(a).

If a party to whom demand for inspection is directed fails to serve a timely response, the party propounding the inspection may move for an order compelling responses. Code Civ. Proc. § 2031.300(b) (request for production of documents).The party who fails to serve a timely response waives any right to object to the demands, including ones based on privilege or on the protection of work product. Code Civ. Proc. § 2031.300(a) (response to demand for production).

To establish that a party did not serve a timely response to interrogatories or demands, the moving party must show that the responding party was properly served with the discovery request or demand to produce, that the deadline to respond has passed, and that the responding party did not timely respond to the discovery request or demand to produce. Code Civ. Proc. §§ 2030.080(a); 2030.060(a); 2030.290; § 2031.040; § 2031.260(a); § 2031.300.

Moreover, if a party to whom interrogatories, document production requests, and request for admissions are directed fails to serve timely responses, that party waives any right to object to the requests, including ones based on privilege or the protection of attorney work product. (CCP §§ 2030.290(a), 2031.300(a); 2033.280(a).)

Defendants havehas provided proof of service for the inspection demands. The deadline for Plaintiff to respond has lapsed and she has not timely responded to any of Defendants’ discovery requests.

Accordingly, Defendants’ motion for an order compelling responses to demand for sets two and three of Defendants’ production of documents is GRANTED.  Plaintiff is to file verified code compliant responses without objection within 20 days of the filing and serving of this Order.

C.         Requests That Requests for Admissions Be Deemed Admitted.

Code of Civil Procedure, § 2033.280 states:

“If a party to whom requests for admissions are directed failed to serve a timely response, the following rules may apply:

(a) The party to whom the requests for admissions are directed waives any objection to the requests, including one based on privilege or on the protection for work product. . . .”

(b) The requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted as well as for monetary sanctions under Chapter 7 (commencing with Section 2023.010).

(c) The court shall make this order, unless it finds that the party to whom the requests for admissions have been directed has served, before the hearing on the motion, a proposed response to the requests for admissions that is in substantial compliance with Section 2033.220.  It is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admissions necessitated this motion.”

The motion of Defendants for an order deeming their requests for admissions, set one, to be admitted is GRANTED.  Their requests for admissions are deemed ADMITTED.

Defendants do not make a request for monetary sanctions.

IV.           Order.

Defendants’ motion for an order compelling responses to demand for sets two and three of Defendants’ production of documents is GRANTED.  Plaintiff is to file verified code compliant responses without objection within 20 days of the filing and serving of this Order.

The motion of Defendants for an order deeming their requests for admissions, set one, to be admitted is GRANTED.  Their requests for admissions are deemed ADMITTED.

 

 

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara

 

 

[1] Rule of Court 3.1345(d) states: “A motion concerning interrogatories, inspection demands, or admission requests must identify the interrogatories, demands, or requests by set and number.”

[2] “The failure to file a written opposition or to appear at a hearing or the voluntary provision of discovery shall not be deemed an admission that the motion was proper or that sanctions should be awarded.”  Rule of Court 3.1348(b).

[3] This is the third discovery motion on this file in the last three months.  On 16 May 2014, this Court granted the motion of Defendants to compel verified responses to perform interrogatories, set one, and special interrogatories, set one.  Plaintiffs did not oppose that motion.  Plaintiffs did not oppose this motion although she appeared at the hearing without having notified either the Court or Defendants about her intent to appear.

On 25 July 2014, Defendants filed their motion for terminating sanctions for Plaintiff’s failure to comply with the order of 16 March 2014 which was mooted by the 11th hour service of her responses.