Preview
E-FILED
Russell K. Ryan, #139835 2/14/2022 11:28 AM
1 MOTSCHIEDLER, MICHAELIDES, WISHON, Superior Court of California
BREWER & RYAN, LLP County of Fresno
2 1690 West Shaw Avenue, Suite 200 By: Louana Peterson, Deputy
Fresno, California 93711
3 Telephone (559) 439-4000
4 Facsimile (559) 439-5654
E-mail: rkr@mmwbr.com
5
Attorneys for Plaintiff
6 DAVID B. KA YE, M.D.
7 SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 COUNTY OF FRESNO
9
DAYID B. KA YE, M.D., CaseNo.: 17CECG04183
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Plaintiff, NOTICE OF MOTION TO COMPEL
11 FURTHER RESPONSES TO
v. REQUEST FOR PRODUCTION OF
12 DOCUMENTS (SET FOUR) AND
FRESNO SURGERY CENTER, a PRODUCTION OF DOCUMENTS
13 California Limited Partnership dba WITH REQUEST FOR IN CAMERA
14 FRESNO SURGICAL HOSPITAL, FSC REVIEW OF WITHHELD
HOSPITAL, LLC, a Delaware Limited DOCUMENTS
15 Liability Company dba FRESNO
SURGICAL HOSPITAL, and DOES 1 Date: May 5, 2022
16 through 100, inclusive, Time: 3 :30 p.m.
Dept: 502
17 Defendants. Judge: Honorable Rosemary McGuire
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19 TO DEFENDANT AND HIS ATTORNEYS OF RECORD:
20 PLEASE TAKE NOTICE that on May 5, 2022, at 3:30 p.m., or as soon
21 thereafter as the matter may be heard, in Department 502 of the above-entitled court,
22 Plaintiff David B. Kaye, M.D. ("Dr. Kaye"), will and hereby does move for an order
23 requiring Defendant Fresno Surgery Center dba Fresno Surgical Hospital ("FSH") to
24 provide further responses to Requests for Production of Documents (Set One)
25 propounded by Dr. Kaye in this action and produce responsive documents.
26 Dr. Kaye will and hereby does move the court for an order directing
27 Defendant to submit for in camera review documents identified in Item #s 1, 2, 3, 4, 5,
28 9, 10, 11, 12 and 13 on its privilege log that are currently being withheld, and that the
MOTSCHIEDLER,
MICHAELIDES,
WISHON, BREWER &
RYAN, LLP
-1-
{00995/0010//642765.DOC) Notice of Motion to Compel with Request for In Camera Review
1 court order that any documents it determines are not privileged pursuant to Defendant's
2 claims be immediately produced to Dr. Kaye. Plaintiff further requests that the court
3 direct Defendant to provide full and complete responses, without objection, to Request
4 for Production of Document Nos. 39-44 and 46-48.
5 This motion will be made on the grounds that the responses to the
6 Requests for Production of Documents (Set One) are relevant to the subject matter of
7 this action, do not relate to privileged matters and Defendant's failure to provide the
8 responses or produce the documents is without substantial justification. Defendants
9 have not met their burden of establishing the privileges that they assert have merit, nor
1O have they provided a proper privilege log identifying such documents.
11 This motion will based on this notice, the attached memorandum of points
12 and authorities, the declarations of David B. Kaye, M.D. and Russell K. Ryan and the
13 exhibits attached thereto and upon all documents on file herein as well as such other and
14 further oral or documentary evidence presented at the hearing.
15 Dated: February 14, 2022 MOTSCHIEDLER, MICHAELIDES,
WISHON, BREWER & RYAN, LLP
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B~
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19 Russell K. Ryan, Attorneys for
Plaintiff David B. Kaye, M.D.
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MOTSCHIEDLER,
MICHA ELIDES,
WISHON, DREWER &
RYAN,LLP -2-
{00995/00 I 0//642765.DOC} Notice of Motion to Compel with Request for In Camera Review
1 PROOF OF SERVICE
2 I, the undersigned, declare:
3 I am a citizen of the United States of America, am over the age of eighteen ( 18) years, and not a party to the within action.
am an employee ofMotschiedler, Michaelides & Wishon, LLP, and my business address is 1690 West Shaw Avenue, Suite
4 200, Fresno, California, 93711. My email address is crystal@ mmwbr.com.
5 On February 14, 2022, I caused to be served the following document(s):
NOTICE OF MOTION TO
COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS (SET FOUR) AND
6
PRODUCTION OF DOCUMENTS WITH REQUEST FOR IN CAMERA REVIEW OF WITHHELD DOCUMENTS
7 on the parties involved addressed as follows:
8 Stephen A. Rosa, Esq.
WEST & ROSA, LLP
1301 Dove Street, Suite 700
9 Newport Beach, California 92660-2470
10
11 D BY PERSONAL DELIVERY:
above.
I caused each such envelope to be delivered by hand to the offices of each addressee
12
13 • BY U.S. MAIL: I caused each envelope, with postage thereon fully prepaid, to be placed in the United
States mail at Fresno, California. I am readily familiar with the business practice for collection and processing of mail
in this office; and that in the ordinary course of business said document would be deposited with the U.S. Postal
I understand that service shall be presumed invalid upon motion of a
Service in Fresno, California on that same day.
14
party served ifthe postal cancellation date or postage meter date on the envelope is more than one day after the date
15 of deposit for mailing contained in this declaration.
16
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• BY ELECTRONIC MAIL: I caused the above-referenced document to be served via electronic mail to counsel
listed above and staff at srosa@westrosallp.com and lnowlin@westrosallp.com on this date.
transmission was reported as complete and without error.
The document
18 D BY FACSIMILE: By use of a facsimile machine telephone number (559) 439 5654, I served a copy of the within
document(s) on the above interested parties at the facsimile numbers listed above.
The transmission was reported as
19 complete without error.
The transmission repo11, which is attached to this proof of service, was properly issued by
the transmitting facsimile machine.
20
BY FEDERAL EXPRESS OVERNIGHT DELIVERY: I caused each envelope, with delivery fees provided for,
21 D to be picked up on this date by a Courier employed by Federal Express or deposited in a box regularly maintained by
Federal Express. I am readily famili ar with this firm's practice for collection and processing of documents for
22 overnight delivery and know that in the ordinary course of this firm's business practice the document(s) described
above will either be deposited in a box or other facility regularly maintained by Federal Express or delivered to an
23 authorized courier or driver authorized to receive documents on the same date that it is placed for collection.
24
I declare under penalty ofpe1jury under the laws of the State of California that the foregoing is true and correct.
25 Executed at Fresno, California on February 14, 2022.
26 ~ a -Bright~
crystal A.
B... ~
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MOTSCHIEDLER,
MICHA ELIDES,
WISHON, BREWER &
RYAN, LLP
-3-
(00995/00 I 0//642765 .DOC} Notice of Motion to Compel with Request for In Camera Review
Preview
E-FILED Russell K. Ryan, #139835 2/14/2022 11:28 AM 1 MOTSCHIEDLER, MICHAELIDES, WISHON, Superior Court of California BREWER & RYAN, LLP County of Fresno 2 1690 West Shaw Avenue, Suite 200 By: Louana Peterson, Deputy Fresno, California 93711 3 Telephone (559) 439-4000 4 Facsimile (559) 439-5654 E-mail: rkr@mmwbr.com 5 Attorneys for Plaintiff 6 DAVID B. KA YE, M.D. 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 COUNTY OF FRESNO 9 DAYID B. KA YE, M.D., CaseNo.: 17CECG04183 10 Plaintiff, NOTICE OF MOTION TO COMPEL 11 FURTHER RESPONSES TO v. REQUEST FOR PRODUCTION OF 12 DOCUMENTS (SET FOUR) AND FRESNO SURGERY CENTER, a PRODUCTION OF DOCUMENTS 13 California Limited Partnership dba WITH REQUEST FOR IN CAMERA 14 FRESNO SURGICAL HOSPITAL, FSC REVIEW OF WITHHELD HOSPITAL, LLC, a Delaware Limited DOCUMENTS 15 Liability Company dba FRESNO SURGICAL HOSPITAL, and DOES 1 Date: May 5, 2022 16 through 100, inclusive, Time: 3 :30 p.m. Dept: 502 17 Defendants. Judge: Honorable Rosemary McGuire 18 19 TO DEFENDANT AND HIS ATTORNEYS OF RECORD: 20 PLEASE TAKE NOTICE that on May 5, 2022, at 3:30 p.m., or as soon 21 thereafter as the matter may be heard, in Department 502 of the above-entitled court, 22 Plaintiff David B. Kaye, M.D. ("Dr. Kaye"), will and hereby does move for an order 23 requiring Defendant Fresno Surgery Center dba Fresno Surgical Hospital ("FSH") to 24 provide further responses to Requests for Production of Documents (Set One) 25 propounded by Dr. Kaye in this action and produce responsive documents. 26 Dr. Kaye will and hereby does move the court for an order directing 27 Defendant to submit for in camera review documents identified in Item #s 1, 2, 3, 4, 5, 28 9, 10, 11, 12 and 13 on its privilege log that are currently being withheld, and that the MOTSCHIEDLER, MICHAELIDES, WISHON, BREWER & RYAN, LLP -1- {00995/0010//642765.DOC) Notice of Motion to Compel with Request for In Camera Review 1 court order that any documents it determines are not privileged pursuant to Defendant's 2 claims be immediately produced to Dr. Kaye. Plaintiff further requests that the court 3 direct Defendant to provide full and complete responses, without objection, to Request 4 for Production of Document Nos. 39-44 and 46-48. 5 This motion will be made on the grounds that the responses to the 6 Requests for Production of Documents (Set One) are relevant to the subject matter of 7 this action, do not relate to privileged matters and Defendant's failure to provide the 8 responses or produce the documents is without substantial justification. Defendants 9 have not met their burden of establishing the privileges that they assert have merit, nor 1O have they provided a proper privilege log identifying such documents. 11 This motion will based on this notice, the attached memorandum of points 12 and authorities, the declarations of David B. Kaye, M.D. and Russell K. Ryan and the 13 exhibits attached thereto and upon all documents on file herein as well as such other and 14 further oral or documentary evidence presented at the hearing. 15 Dated: February 14, 2022 MOTSCHIEDLER, MICHAELIDES, WISHON, BREWER & RYAN, LLP 16 B~ 17 18 19 Russell K. Ryan, Attorneys for Plaintiff David B. Kaye, M.D. 20 21 22 23 24 25 26 27 28 MOTSCHIEDLER, MICHA ELIDES, WISHON, DREWER & RYAN,LLP -2- {00995/00 I 0//642765.DOC} Notice of Motion to Compel with Request for In Camera Review 1 PROOF OF SERVICE 2 I, the undersigned, declare: 3 I am a citizen of the United States of America, am over the age of eighteen ( 18) years, and not a party to the within action. am an employee ofMotschiedler, Michaelides & Wishon, LLP, and my business address is 1690 West Shaw Avenue, Suite 4 200, Fresno, California, 93711. My email address is crystal@ mmwbr.com. 5 On February 14, 2022, I caused to be served the following document(s): NOTICE OF MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS (SET FOUR) AND 6 PRODUCTION OF DOCUMENTS WITH REQUEST FOR IN CAMERA REVIEW OF WITHHELD DOCUMENTS 7 on the parties involved addressed as follows: 8 Stephen A. Rosa, Esq. WEST & ROSA, LLP 1301 Dove Street, Suite 700 9 Newport Beach, California 92660-2470 10 11 D BY PERSONAL DELIVERY: above. I caused each such envelope to be delivered by hand to the offices of each addressee 12 13 • BY U.S. MAIL: I caused each envelope, with postage thereon fully prepaid, to be placed in the United States mail at Fresno, California. I am readily familiar with the business practice for collection and processing of mail in this office; and that in the ordinary course of business said document would be deposited with the U.S. Postal I understand that service shall be presumed invalid upon motion of a Service in Fresno, California on that same day. 14 party served ifthe postal cancellation date or postage meter date on the envelope is more than one day after the date 15 of deposit for mailing contained in this declaration. 16 17 • BY ELECTRONIC MAIL: I caused the above-referenced document to be served via electronic mail to counsel listed above and staff at srosa@westrosallp.com and lnowlin@westrosallp.com on this date. transmission was reported as complete and without error. The document 18 D BY FACSIMILE: By use of a facsimile machine telephone number (559) 439 5654, I served a copy of the within document(s) on the above interested parties at the facsimile numbers listed above. The transmission was reported as 19 complete without error. The transmission repo11, which is attached to this proof of service, was properly issued by the transmitting facsimile machine. 20 BY FEDERAL EXPRESS OVERNIGHT DELIVERY: I caused each envelope, with delivery fees provided for, 21 D to be picked up on this date by a Courier employed by Federal Express or deposited in a box regularly maintained by Federal Express. I am readily famili ar with this firm's practice for collection and processing of documents for 22 overnight delivery and know that in the ordinary course of this firm's business practice the document(s) described above will either be deposited in a box or other facility regularly maintained by Federal Express or delivered to an 23 authorized courier or driver authorized to receive documents on the same date that it is placed for collection. 24 I declare under penalty ofpe1jury under the laws of the State of California that the foregoing is true and correct. 25 Executed at Fresno, California on February 14, 2022. 26 ~ a -Bright~ crystal A. B... ~ 27 28 MOTSCHIEDLER, MICHA ELIDES, WISHON, BREWER & RYAN, LLP -3- (00995/00 I 0//642765 .DOC} Notice of Motion to Compel with Request for In Camera Review