Case Number: VC059950 Hearing Date: May 12, 2014 Dept: SEC

GOPAL v. CAREMORE HEALTH GROUP, INC.
CASE NO.: VC059950
HEARING: 05/13/14

#2
TENTATIVE ORDER

I. Plaintiff SUKUM GOPAL’s motion to compel further responses
to Requests for Admission (set three) is DENIED. C.C.P. § 2033.290.

II. Plaintiff SUKUM GOPAL’s motion to compel further responses
to Form Interrogatories (set five) is DENIED. C.C.P. § 2030.300.

III. Plaintiff SUKUM GOPAL’s motion to compel further responses
to Special Interrogatories (set four) is DENIED as to numbers 13 and 14; otherwise GRANTED. C.C.P. § 2030.300.

Defendant KAISER FOUNDATION HEALTH PLAN, INC. is ORDERED
to serve its further responses no later than May 27, 2014.

This action involves the wrongful death of Saismorn Gopal. Plaintiffs allege that defendants delayed the necessary treatment and transfer of decedent. Plaintiff served the subject discovery in December 2013. Defendant Kaiser timely served responses. After the parties were unable to informally resolve the discovery disputes, the subject motions were filed.

I. & II. Requests for admission and form interrogatories
The requests for admission at issue seek admissions or denials related to the existence of a legal duty. The motion to compel further responses to form interrogatories is directed only at number 17.1, which requires the responding party to state all facts in support of its denial of any of the items for which admissions were sought.

Defendant argues that responses would require expert opinion and, as such, the discovery is premature.

On the one hand, requests for admissions are used for the purpose of setting to rest certain issues in the interest of expediting trial. Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618. The subject requests for admission specifically pertain to the duties which may or may not be owed by defendant under the Knox-Keene Act and related to the transfer of a patient. A request for admission may seek an opinion relating to fact, or application of law to fact. C.C.P. § 2033.010.

In the context of medical malpractice, the issue of duty falls squarely in the realm of expert opinion. The disclosure of experts is governed by statutory timelines. C.C.P. § 2034.010 et seq. To require defendant to admit or deny the existence of a duty is premature. Moreover, if defendant denies a particular request, it is obligated to set forth the facts upon which that denial is based under form interrogatory 17.1 and thus would require it to divulge its experts’ opinions.

Plaintiff’s reliance on Chodos v. Superior Court (1963) 215 Cal.App.2d 318 is misplaced. There, the Court held that requests for admission may seek a response based on opinion, but the ruling did not involve the issue of an expert opinion or a premature disclosure of experts. The case was also decided well before the 1986 passage of the current Discovery Act. Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1106.

Plaintiff argues that he needs the information to fully oppose defendant’s motion for summary judgment. The moving party has the initial burden on the motion and if it is based on an issue which requires an analysis of a legal duty, defendant will have to proffer expert testimony to support its position. Plaintiff may then conduct the requisite discovery prior to filing his opposing papers (which are due 61 days later).

The motions to compel further responses to requests for admissions and form interrogatories are denied.

III. Special interrogatories
In its answer to the complaint, defendant asserts several affirmative defenses based on MICRA (Medical Injury Compensation Reform Act, C.C. §3333.1 et seq.; Bus. & Prof. Code § 6164; C.C.P. § 667.7). Plaintiff contends that defendant is not a “licensed health care provider” to which the statutory protections attach. The subject discovery pertains to the application of MICRA.

Plaintiff may properly seek information related to defendant’s affirmative defenses and the bases for asserting those defenses. See Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255. Here, it argues that defendant’s responses re incomplete and evasive. Defendant, on the other hand, contends that it has fully responded to the items at issue. The Court has reviewed the separate statement of items in dispute and rules as follows.

Defendant’s responses to number 13 and 14, which requests the identification of certificates and licensures which qualify it as a “health care provider” are sufficient because it expressly states it is not so qualified because it does not meet the statutory definition of a health care provider.

Interrogatory numbers 23 through 30 seek more specific information regarding various licensures and certifications. For most, a sufficient response would be “yes” or “no.” Instead, defendant responded with the same answer to each—that it is a “health care service plan” and is licensed by the Department of Managed Health Care. Defendant may also be charged with describing its licensure under certain statutes. It has not justified its boilerplate objections, which are hereby overruled. Further responses are ordered.

The response to number 15 is evasive. Plaintiff specifically asks whether Civil Code section 3333.1 applies, and defendant does not unequivocally state whether it is entitled to the application of the statute. While it may word its responses as it elects to do, it must answer the question posed; a “tacit” response is not enough. For the same reason, further responses to numbers 16 through 22 are also ordered. The conclusion as to whether a pled, statutory defense applies is not protected by the attorney-client privilege. While certain facts may arguably be protected under the work product doctrine, defendant has not so established. It failed to provide any factual response. To the extent it withholds information based on privilege, it must provide a privilege log or other information from which it can be determined if a privilege applies.