Motion for Compliance or Status in PHILIP WILLIAMS, et al. vs. SCOTT C. BAIRD, et al.| Trellis.Law

On July 05, 2017 a Party Discovery was filed involving a dispute between Williams, Judy, Williams, Philip, and Azeem K. Lakha, D.M.D., Baird, Scott C., Does 1 Through 100, Lakha, Azeem K., for civil in the District Court of San Mateo County.

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ARTHUR W. CURLEY, BAR NO.
PETER F. FINN, BAR NO. 267810
BRADLEY, CURLEY, BARRABEE
60902
FILED
5AM MATE?” CﬁUN‘ﬁf
& KOWALSKI, P. C.
1100 Larkspur Landing Circle, Suite 350 MAY 22 21118
Larks 111', California 94939 ~

Telep one: (415) 464- 8888
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Clerkof Court
101‘
Facs1mile. (415) 464- 8887
By ,

GLEN
Attorneys for Defendants
SCOTT C. BAIRD, D.M.D.
AZEEM K. LAKI-IA, D.M.D.
AZEEM K. LAKHA, D.M.D., A PROFESSIONAL CORPORATION
17— GIV— 02971
MPAH
Memorandum of Points and Authorities in Repl‘
1164823 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN MATEO
' J
_
ll _

(UNLIMITED JURISDICTION)
12 PHILIP WILLIAMS, JUDY WILLIAMS, 3 No. 17CIV02971
.3
13 Plaintiffs, .) DEFENDANTS’ REPLY TO PLAINTIFFS’
832883. ) OPPOSITION TO MOTION TO ENFORCE
14 v. 3 AND DIRECT COMPLIANCE WITH
3 DEPOSITION SUBPOENA FOR
15 SCOTT C. BAIRD, D. M. D. AZEEM K. ) PRODUCTION OF BUSINESS RECORDS
LAKHA, D. M. D. ,AZEEM K. LAKHA, ') ISSUED T0 V. A PALO ALTO HOSPITAL;
16 D. M. D. a Professional Corporation; and f) CROSS-MOTION FOR MONETARY
DOES I to 100, incluSive, SAN CTION
17 %

Defendants. )
18 3 Date: May 30, 2018
180 3 Time: 9:00 am.
19 3 Dept: Law & Motion
20 1% Complaint Filed. July 5,2017
I) Trial Date: September 24, 2018
21
WM I. PLAINTIFFS’ OPPOSITION IS WITHOUT LEGAL AND FACTUAL FOUNDATION
22
Plaintiffs efforts to throw mud at Defendants and their counsel are misguided and
23
harassing. There is m legal or factual foundation for Plaintiffs’ Opposition, let alone a brazen
24
request for monetary sanctions, as the following facts establish:
25
1. Defendants Motion does not seek to compel Plaintiffs to do anything. This is n_ot a
26
discovery dispute involving Plaintiffs. Rather, it is a Motion aimed at obtaining a Court Order that
27
enforces and directs the VA Hospital to comply with the Deposition Subpoena for Production to
28
Business Records (“Subpoena”) that Defendants had issued for Plaintiff Philip Williams’ medical
BRADLEY, CURLEY,
BARRABEE a. _ 1 _
KOWALSKI,P.C.
1100 Larkspur Landing DEFENDANTS’ REPLYTO PLATNTIFFS’ OPPOSITION TO MOTION TO ENFORCE AND DIRECT
Circle, Suite 350
Larkspur. CA 94939 COMPLIANCE WITH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS ISSUED To
TEL (415) 464—8886
FAX (415) 464-8587 V.A. PALO ALTO HOSPITAL; CROSS—MOTION FOR MONETARY SANCTION
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records. Plaintiffs’ Opposition — and the correspondence from their counsel — appears to

misunderstand this basic point.

2. The VA Hospital — the entity to whom the Subpoena was directed -— has 1_10_t

ﬁled any Opposition to Defendants’ Motion. This makes sense given the letter received from

Angeline Teano of the VA Palo Alto Health Care System in response to the Subpoena that advised

Defendants that a Court Order would permit the VA Hospital to disclose the records. (See 1]10 and
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Exhibit 7 of Firm Decl. in support of moving papers).
3. Plaintiffs did n_ot object to the Subpoena (or ﬁle a Motion to Quash it). (See 1] 9 of
Finn Decl. in support of moving papers).

4. Plaintiffs’ counsel refused to provide Defendants with a signed authorization from
Philip Williams authorizing the release of his records from the VA Hospital to Defendants. (See 1[

7 of Firm Decl. in support of moving papers).
5. Plaintiffs’ Opposition fag to cite any legal authority (a) justifying, permitting, or

indicating they have standing for their opposition to Defendants’ Motion or (b) suggesting that
Defendants are not entitled to have their un-obj ected to Subpoena enforced.
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6. Defendants have a legal right to issue a subpoena for Mr. Williams’ records from
the VA Hospital (as well as other medical providers identiﬁed in discovery), regardless of whether
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some or all of those records are also received via another source. There is no “exclusivity”
provision in the Code of Civil Procedure when it comes to the methods of obtaining relevant
information. This is particularly important where, as here, the records ultimately received from
Plaintiffs’ counsel on April 30, 2018 (after many months) did no_t include a Declaration of
Custodian of Records (“DCR”) certifying the documents produced under penalty of perjury, as is
required when a medical provider responds to a subpoena. (See 1[7 of Firm Reply Decl.).
Defendants have no way of verifying that aﬂ of Mr. Williams’ pertinent medical records from the
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VA Hospital were received by his counsel or produced by his counsel to Defendants. To date, no
DCR has been provided. (See 11 8 of Firm Reply Decl.).
[\J \I
II. PLAINTIFFS’ OPPOSITION IS .MISLEADING AND INCOMPLETE
28 Plaintiffs’ timeline and description of events in their Opposition is misleading and

BRADLEY, CURLEY,
BARRABEE 8
KOWALSKI,P.C
-2-
1100 Larkspur Landing DEFENDANTS’ REPLY TO PLAINTIFF S’ OPPOSITION TO MOTION TO ENFORCE AND DIRECT
Circie, Suite 350
Larkspur. CA 94939 COMPLIANCE WITH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS ISSUED TO
TEL (415) 464-8888
FAX (415) 464—8887 V.A. PALO ALTO HOSPITAL; CROSS-MOTION FOR MONETARY SANCTION
incomplete:

1. On February 12, 2018 and March 23, 2018, Defendants’ counsel wrote to Plaintiffs’

counsel regarding the status of them requesting and obtaining Mr. Williams’ records from the VA

Hospital and providing Defendants with the request that was made to the VA Hospital, as

Plaintiffs’
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counsel had agreed to do in Court on January 8, 2018 and as memorialized by the

Court’s January 30, 2018 Order. (See W 2—3 and Exhibits 1 and 2 of Firm Reply Decl.; see also

Exhibit 1 of Opposition Declaration of Joshua J .K. Henderson (“Henderson Decl.”) [“... plaintiff
will provide Defendant a courtesy copy of his request to the VA.”]). Defendants did EM receive

any response from Plaintiffs’ counsel to their February 12 and March 23, 2018 letter. It was not

until April 19, 2018 ~ after Defendants’ original Motion was ﬁled (i.e., only in response to the
initial Motion) — that Plaintiffs’ counsel ﬁnally forwarded to Defendants’ counsel 3. copy of their

January 9, 2018 letter to the VA Hospital, which Plaintiffs’ counsel obviously could have provided

months earlier. (See 11 4 of Firm Reply Decl.). Plaintiffs’ Opposition omits this history.
2. On April 19, 2018, Defendants’ counsel advised Plaintiffs’ counsel that the initial

Motion would be re-set and re-noticed because of an inadvertent omission in providing notice of
the initial Motion to the VA Hospital. (See ﬁl 5and Exhibit 3 of Finn Reply Decl.). Defendants’
initial Motion was formally taken off calendar on April 27, 2018. (See Exhibit 5 of Henderson
Decl.). The initial Motion was rLot taken off calendar because Plaintiffs’
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counsel had requested
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and/or received Mr. Williams’ records from the VA Hospital, but simply to correct the notice issue.

(See‘r‘ﬂ 6of Finn Reply Decl.). Plaintiffs’ Opposition omits Defendants’ April 19, 2018
correspondence.

3. By letter dated May 8, 2018, Defendants’ counsel noted to Plaintiffs’ counsel that

the production of Mr. Williams’ records from the VA Hospital was “irrelevant” insofar as
“Defendants are legally entitled to issue a subpoena for Mr. Williams’ records from the VA

Hospital (as well as other medical providers identiﬁed in discovery) regardless of whether some or :

all of those records are also received via another source.” (See Exhibit 8 of Henderson Decl.).
Plaintiffs’ Opposition omit this pertinent context. (See Opposition at 2: 13-14).

28 4. Similarly, by letter dated May 9, 2018, Defendants’ counsel pointed out to

BRADLEY, CURLEY,
BARRABEE 8- .
-3 -
KOWALSKIPL.
1 1 00 Larkspur Landing DEFENDANTS’ REPLY TO PLAINTIFFS’ OPPOSITION TO MOTION TO ENFORCE AND DIRECT
Circle, Suite 350
Larkspur. CA 94839 COMPLIANCE WITH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS ISSUED TO
TEL (415) 4648688
FAX (415) 464-8887 V.A. PALO ALTO HOSPITAL; CROSS-MOTION FOR MONETARY SANCTION
y—a
Plaintiffs’ counsel: “Further, as a practical matter, if as you contend, our Motion seeks the same
records that you have already produced, what are you so upset about?” (See Exhibit 10 of
Henderson Decl. [italics added]). Contrary to Plaintiffs’ Opposition, Defendants’ counsel did n__ot

“admit” that this Motion in fact seeks the same records that have already been produced. (See

Opposition at 2:23-24). With no CDR, Defendants’ counsel does n_ot know if other pertinent
records exist.
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Notably, the question posed by Defendants’ counsel remains unanswered by
Plaintiffs, even in their Opposition. That unanswered questions implies another, which simply

further establishes the justiﬁcation and need for a Court Order enforcing and directing compliance
with the Subpoena: Are Plaintiffs hiding something? Why else would Plaintiffs spend so much

time opposing a Motion that is not against them and which seeks records they claim have already

been produced?

IILCONCLUSION
The VA Hospital does n_ot oppose Defendants’ Motion.
Plaintiffs’ Opposition, including its request for monetary sanctions against Defendants and

their counsel, was ﬁled without any justiﬁcation. The Opposition has no legal or factual basis. It
misstates the facts and is incomplete.
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It appears to be nothing more than a harassing effort to
increase Defendants’ litigation costs.
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For the additional foregoing reasons, Defendants reSpectfully request the Court to issue an
order enforcing and directing the VA Hospital’s compliance with the Subpoena and denying
Plaintiffs’ request for monetary sanctions.

Dated: May 22, 2018 BRADLEY, CURLEY, BARRABEE
& KOWALSKI, P.C.

”M
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W'“ M {59/
“WM, (w
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ARTHUR W. CURLEY
Attorney for Defendants
N SCOTT C. BAIRD, D.M.D.; AZEEM K. LAKHA,
. D.M.D.; AZEEM K. LAKHA, D.M.D., A
N \l PROFESSIONAL CORPORATION
28; H:\Does\DOCSCO\10289\P\Motion to Compel VA\Reply:wpd

BRADLEY. CURLEY,
BARRABEE & .. .
-4-
KOWALSKI,P,C,
1100 Larkspur Landing DEFENDANTS’ REPLY TO PLATNTIFFS’ OPPOSITION TO MOTION TO ENFORCE AND DIRECT
Circle. Suite 350
Larkspur, CA 94939 COMPLIANCE WITH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS ISSUED TO
TEL (415) 464-8558
FAX (415) 464-8587 V.A. PALO ALTO HOSPITAL; CROSS-MOTION FOR MONETARY SANCTION

Case Info

Judge

John L. Grandsaert Track Judge’s New Case

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Document Filed Date

May 22, 2018

Case Filing Date

July 05, 2017

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Party Discovery: PHILIP WILLIAMS, et al. vs. SCOTT C. BAIRD, et al.

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