Case Number: BC516825    Hearing Date: July 29, 2014    Dept: A11

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTH DISTRICT

EDDIE YVETTE KENNYBREW-GUNN, )
L.C. GUNN, ) Case Number BC 516825
)
Plaintiffs, ) ORDER AFTER HEARING
)
v. ) Date of Hearing:
) July 29, 2014
ANTELOPE VALLEY HEALTHCARE ) Dept. A-11
DISTRICT, et al, ) Judge Randolph A. Rogers
)
Defendants. )
___________________________________)

Plaintiff Eddie Yvette Kennybrew-Gunn’s motion to compel the production of documents by Gurnam Singh Pannu came on for hearing on July 29, 2014. Plaintiff Eddie Yvette Kennybrew-Gunn appeared through her counsel of record, ______________________. Defendant Gurnam Singh Pannu appeared through his counsel of record, ______________________. The Court, having received and reviewed the pleadings of record and evidence submitted and having considered argument of counsel, it is hereby ORDERED:

The motion to compel production is DENIED.

SO ORDERED this the _____ day of July, 2014.

______________________
RANDOLPH A. ROGERS,
JUDGE

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTH DISTRICT

EDDIE YVETTE KENNYBREW-GUNN, )
L.C. GUNN, ) Case Number BC 516825
)
Plaintiffs, ) STATEMENT OF DECISION
)
v. ) Date of Hearing:
) July 29, 2014
ANTELOPE VALLEY HEALTHCARE ) Dept. A-11
DISTRICT, et al, ) Judge Randolph A. Rogers
)
Defendants. )
___________________________________)

The Court bases the Order After Hearing of this date upon the following Statement of Decision:

1. The present case is a medical negligence case. On September 17, 2012, Plaintiff Eddie Yvette Kennybrew-Gunn (“Plaintiff”) went to a facility of defendant Antelope Valley Healthcare District (“AVH”) for diagnosis and treatment. She was apparently admitted for surgical care and treatment. Defendant Gurnam Singh Pannu (“Defendant”) was an anesthesiologist involved in the post-operative care.

2. After the procedure, Plaintiff’s blood pressure apparently dropped following administration of an epidural by Defendant. Plaintiff suffered an anoxic brain injury.

3. On July 31, 2013 Plaintiff, together with co-plaintiff L.C. Gunn, brought Complaint for medical negligence and loss of consortium. Discovery ensued.

4. On April 1, 2014, Plaintiff served Defendant with Request for Production of Documents (set one) (“RFP”). Defendant responded on May 19, 2014.

5. A meet and confer letter was sent by Plaintiff’s counsel on May 28, 2014, seeking further discovery into RFP number 3, which calls for “[a]ny and all correspondence authored, prepared or dictated by Defendant regarding this incident sent to anyone other than Defendant’s attorneys.” Motion, Exhibit 1. Defendant’s response to the RFP was an objection on the grounds that the RFP “calls for information protected by Evidence Code 1157.” Motion, Exhibit 2. No response was apparently given to this meet and confer letter.

6. Plaintiff filed her motion to compel further response on June 27, 2014. Defendant filed his Opposition on July 16, 2014.

7. Motion to Compel – Code of Civil Procedure §2031.010 provides that “[a] party may demand that any other party produce and permit the party making the demand . . . to inspect and to copy a document that is in the possession, custody, or control of the party on whom the demand is made.” CCP §2031.010(b). The propounding party may bring a motion to compel further responses if it deems the response to be incomplete, objections are without merit or too general, or a representation to inability to comply is inadequate, incomplete, or evasive. CCP §2031.310(a). Such a motion must set forth specific facts showing good cause justifying the discovery sought and must be accompanied by a meet and confer declaration pursuant to CCP §2016.040. CCP §2031.310(b).

8. Timeliness – A motion to compel further answers under CCP §2031.310 must be brought within 45 days after service of response. CCP §2031.310(c). The responses were served on May 19, 2014. The motion was filed on June 27, 2014. The motion was timely made.

9. Separate statement — CRC Rule 3.1345(a) requires motions to compel further responses to a demand for inspection be accompanied by a separate statement of disputed items. Plaintiff’s motion contains a separate statement and complies with this requirement.

10. Meet and confer – A motion to compel further answers must be accompanied by a meet and confer declaration under CCP §2016.040. Section 2016.040 requires the declaration to state facts showing a reasonable and good faith attempt was made to resolve each issue presented informally. What constitutes reasonable depends on all the relevant circumstances of the case. Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 432-3 (“the level of effort that is reasonable is different in different circumstances . . . . These are considerations entrusted to the trial court’s discretion and judgment, with due regard for all relevant circumstances.”)

11. The court may consider various factors in determining whether a party made a “reasonable” and “good faith” attempt to resolve the issue informally, such as the size and complexity of the case, the time available before the motion filing deadline, the prospects of success. Obregon, supra 67 Cal.App.4th at 433. A greater effort at informal resolution may be required in larger, more complex cases. In others, “[a] single letter, followed by a response which refuses concessions, might in some instances be an adequate attempt at informal resolution.” Id.

12. In this case, the only attempt at informal resolution made by Plaintiff appears to be the solitary letter sent on May 28, 2014 contending that Defendant’s objection is meritless and inviting further responses or discussion. Motion, Exhibit 3. Opposing counsel failed to make any response, and Plaintiff made no further efforts at resolution.

13. Given that this appears to be the first discovery dispute that has arisen in the case, and certainly the first as between the parties, there is no reason to believe that further attempts to resolve the discovery dispute would have been fruitless. Because the responses were served on May 19, 2014, Plaintiff had until July 3, 2014, almost a week, before the deadline to file her motion to compel elapsed. The singular point of dispute here involved, coupled with what appears to be satisfactory responses to all other discovery, suggests that no difference in positions existed that was impregnable from informal attempts at discovery resolution.

14. While Defendant’s failure to provide even a cursory response suggests an attitude distinct from that ordinarily expected from good-faith attempts at resolving discovery disputes, there nevertheless does not appear to have been sufficient effort on the part of Plaintiff to make a reasonable and good-faith attempt at informal resolution.

15. Evidence Code §1157 – Turning to the substance of the dispute, the discovery here sought is apparently the note prepared by Defendant regarding Plaintiff’s case for submission to a review committee. Opposition at 2:11-12.

16. Evidence Code §1157 exempts the proceedings or records of medical committees and peer review bodies from discovery. Cal. Evid. Code §1157(a). A ‘peer review’ is “a process in which a peer review body reviews the basic qualifications, staff privileges, employment, medical outcomes, or professional conduct of licentiates to make recommendations for quality improvement and education.” Cal. Bus. & Prof. Code §805(a)(1)(A)(i). From the moving papers, it appears that the “root cause analysis committee” is one such body. As such, the note in question qualifies under §1157.

17. Plaintiff argues, however, that even should §1157 apply, the exemption from discovery is stymied from its own exclusion. Subdivision (c) of §1157 provides that “[t]he prohibition relating to discovery or testimony does not apply to the statements made by any person in attendance at a meeting of any of those committees who is a party to an action or proceeding the subject matter of which was reviewed at that meeting.” Plaintiff argues that this exception disarms subdivision (a)’s exemption and subjects the note to discovery. This notion is expressly disabused by case law.

18. In Schulz v. Superior Court (1977) 66 Cal.App.3d 440, the Court of Appeals dealt expressly with this provision. In that case, a medical malpractice case, the plaintiff sought discovery from the defendant of communications by the defendant to the medical advisory board about the subject matter of the litigation, that is, the claimed medical negligence. The defendant in the case objected, citing the protection of §1157. The plaintiff in the case argued on the same language in subdivision (c) that the discovery was permissible.

19. In rejecting the plaintiff’s argument, the Court of Appeal noted that the exclusion under subdivision (c) “is aimed directly at malpractice actions in which a present or former hospital staff doctor is a defendant. . . . To all appearances the exception was designed to set the immunity to one side to permit discovery in suits by doctors claiming wrongful or arbitrary exclusion from hospital staff privileges.” Schulz, supra, 66 Cal.App.3d at 446. The Court of Appeal notes that the immunity “does not apply to a malpractice proceeding in which the doctor or the hospital have been made parties.” Id.

20. Indeed, Plaintiff’s argument that the exclusion applies because Defendant is a party to the action is explicitly addressed in the opinion. The Court of Appeal states that “[t]o declare that the immunity is to be set aside when either the staff doctor or the hospital are parties to the malpractice proceeding would not only achieve an absurd result, but would render sterile the immunity provisions of the statute. Id. at 445.

21. The Court of Appeal in University of Southern California v. Superior Court (1996) 45 Cal.App.4th 1283, reiterated the Schulz court’s conclusion, noting that Plaintiff’s interpretation of the statute would render “the exemption from discovery provided by section 1157 [to] have little or no meaning. It would not apply whenever suit is filed, which is the only situation in which discovery is available.” Id. at 1291. The Court notes that such an interpretation would necessarily mean that “discovery would be allowed in virtually any situation in which suit has been filed. The exception would then swallow the rule.” Id. at 1292.

22. Because the note here sought is exempted from discovery by statute, and because it does not fall into an exception to the exemption, Plaintiff cannot compel the production of the note.

23. Accordingly, the motion to compel production is DENIED.

SO ORDERED AND ADJUDGED this the ______ day of July, 2014.

_____________________________
RANDOLPH A. ROGERS, JUDGE