Preview
ROBERT H. ZIMMERMAN, Bar No. 84345 Supetion Court of Califomia
IAN A. SCHARG, BAR No. 285; County of Butte
SCHUERING ZIMMERMAN & DOYLE, LLP
400 University Avent 9/9/2021
Sacramento, California 95825-6502
(916) 567-0400
FAX: 568-0400 Shagj Ipyalli Clenk
Deputy
Ei ED
Attomeys for Defendant ENLOE MEDICAL CENTER
SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE
10 JOHN O'CONNELL, NO. 18CV00806
11 Plaintiff, Assigned to the Honorable Judge
Tamara L. Mosbarger for All Purposes
12 vs.
OPPOSITION TO MOTION TO COMPEL
13 ENLOE MEDICAL CENTER; ALLISON FURTHER RESPONSES TO REQUEST
GUSTER, RN; NORTH VALLEY SURGICAL FOR PRODUCTION OF DOCUMENTS,
14 ASSOCIATES; DERRON LUDWIG, M._D., SETS 6 AND 7
etal.,
15 Date: September 22, 2021
Defendants. Time: 9:00 a.m.
16 Dept: 1
13, 2018
17
18
Com
Trial b laint
ate:
filed: Februa
October 18, 2021
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01384320.WPD 1
OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO RFP, SETS 6 AND 7
TABLE OF CONTENTS
Page
INTRODUCTION
I APPLICABLE LAW
Il. ARGUMENT
A Plaintiff Failed to Engage in Good Faith Meet and Confer.
B. Defendant Should Not be Compelled to Produce Documents
Which Do Not Exist
Cc. Board of Trustees Documents
10 D. MIDAS Documentation
11 E Plaintiff Failed to Set Forth Good Cause to Compel Further Responses 14
12 IV. CONCLUSION, 15
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OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO RFP, SETS 6 AND 7
TABLE OF AUTHORITIES
Page
Cases
(Scripps Memorial Hospital v. Superior Court
(1995) 37 Cal.App.4th 1720 12
Alexander v. Superior Court
(1993) 5 Cal.4th 1218, 1225 10, 11
Bell v. Sharp Cabrillo Hospital
(1989) 212 Cal.App.3d 1034 12
County of Kern v. Superior Court
(1978) 82 Cal.App.3d 396 11
10 County of Los Angeles v. Superior Court
(1990) 224 Cal.App.3d 1446 10
11
Cruger v. Lov
12 (FI la. 1992) 599 So.2d 111 11
13 Hassan v, Mercy American River Hospital
(2003) 31 Cal.4th 709 10
14
Matchett v, Superior Court
15 (1974) 40 Cal.App.3d 623 11
16 Roseville Community Hospital v. Superior Court
(1977) 70 Cal-App.3d 809 12
17
Saddleback Community Hospital v. Superior Court
18 (1984) 158 Cal.App.3d 206 Tl
19 Santa Rosa Memorial Hospital v. Superior Court
(1985) 174 Cal.App.3d 711 10, 12
20
Snell v. Superior Court
21 (1984) 158 Cal.App.3d 44 12
22
23
24 Statutes
25 Code of Civil Procedure, section 2031.310
26 Code of Civil Procedure, section 2016.040
27 Code of Civil Procedure, section 2016.040
28 Code of Civil Procedure, section 2031.310(b) 14,15
01384320.WPD 3
OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO RFP, SETS 6 AND 7
Evidence Code section 1156 7,9
Evidence Code section 1157 7,9, 13, 14
Evidence Code section 1157(a)
Rules
California Rules of Court, Rule 3.1345(c) 14
Other Authorities
Patient Safety and Quality Improvement Act of 2005, 42 U.S.C. § 299b-21 et seq
10
11
12
13
14
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OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO RFP, SETS 6 AND 7
I
INTRODUCTION
Defendant Enloe Medical Center (“Defendant”) hereby opposes plaintiff John
O’Connell’s Motion to Compel Further Responses to Request for Production of Documents,
Sets Six and Seven, from Defendant Enloe Medical Center.
The lawsuit was filed by decedent's surviving spouse, plaintiff John O'Connell. Plaintiff
filed an unverified complaint with the Butte County Superior Court on February 13, 2018.
(Declaration of Alaina T. Dickens (“Dickens Declaration”) 12.) The operative pleading is
the Second Amended Complaint (SAC) filed on February 26, 2019. (Dickens Declaration 13.)
10 As against all defendants, plaintiff alleged causes of action for wrongful
11 death/negligence, elder abuse, and fraud. Plaintiff also asserted a separate cause of action
12 against Enloe Medical Center (EMC) for negligent hiring. The heart of plaintiff's complaint
13 focuses on the conduct of Ms. Guster. Briefly stated, decedent was admitted to EMC on
14 April 25, 2016, and underwent an elective hernia repair performed by Dr. Ludwig. On
15 postoperative day two, Ms. Guster was assigned to provide bedside care to decedent during
16 the evening shift. Plaintiff has alleged Ms. Guster intentionally abandoned her duties as a
17 nurse, resulting in decedent’s death.
18 On June 7, 2021, plaintiff served Request for Production of Documents, Set Six
19 (Request Nos. 208-219) and Request for Production of Documents, Set Seven (Request Nos.
20 220-232) on EMC. (Dickens Declaration 14.) On August 6, 2021, EMC served its response to
21 Request for Production of Documents, Set Six and Request for Production of Documents, Set
22 Seven. (Dickens Declaration 15.)
23 On August 24, 2021, plaintiff served his motion to compel further responses to Request
24 for Production of Documents, Set Six and Request for Production of Documents, Set Seven.
25 (Dickens Declaration 116.) As evidenced by the documents attached to the Declaration of
26 Peter Chen in support of plaintiff's motion to compel, plaintiff's did not engage in reasonable
27 and good faith efforts to meet and confer, as required by CCP § 2016.040, as counsel for
28 EMC unequivocally stated he was unavailable through August 21, 2021 and two days time
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OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO RFP, SETS 6 AND 7
would be insufficient to provide the requested responses. Nonetheless, plaintiff abruptly
discontinued meet and confer efforts and proceeded to file his motions to compel on August
24, 2021 without any attempt to agree to a production date which would be feasible for
defendant. (See Declaration Peter Chen at Exhibit C.)
Il.
APPLICABLE LAW
Code of Civil Procedure section 2031.310 states:
(a) On receipt of a response to a demand for inspection,
copyin:
move
demand
tr
testing, or sampli ins the demanding party may
if
an order compe in g further response to the
the demanding party deems that any of the
10 following apply:
11 a) A statement of compliance with the demand is
incomplete.
12
(2) A representation of inability to comply is
13 inadequate, incomplete, or evasive.
14 @) An objection in the response is without merit or
too general.
15
(b) Amotion under subdivision (a) shall comply with each of
16 the following:
17 aq) The motion shall set forth specific facts showing
‘ood cause justifying the discovery sought by the
18 lemand.
19 (2) The motion shall be accompanied by a meet and
confer declaration under Section 2016.040 .
20
(3) In lieu of a separate statement required under the
21 California Rules of Court, the court may allow the
moving party to submit a concise outline of the
22 discovery request and each response in dispute.
23
24 (h) Except as provided in subdivision (j), the court shall
impose a_moneta sanction under Chapter 7
25 (commencing with Section 2023.010 ) against any party,
person, or attorney who unsuccessfully makes or opposes
26 a motion to compel further response fo a demand, unless
it finds that the one subject to the sanction acted with
27 substantial justification or that other circumstances make
the imposition of the sanction unjust.
28
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OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO RFP, SETS 6 AND 7
Ill.
ARGUMENT
As fully set forth in Defendant's response to the Separate Statement, the Court should
deny Plaintiff's motion because they have failed to set forth specific facts showing good
cause justifying the discovery sought by the demand pursuant to Code of Civil Procedure
section 2031.310(b)(1). Further, Plaintiff has propounded discovery requests that seek
materials that are privileged under Evidence Code sections 1156 and 1157 and the Patient
Safety and Quality Improvement Act of 2005 (Patient Safety Work Product), 42 U.S.C. §
299b-21 et seq.; violate third parties right to privacy; attorney/client privilege and the
10 work/product doctrine. Finally, Plaintiff's requests are overbroad, oppressive, and not likely
11 to lead to the discovery of admissible evidence. Therefore, Plaintiff's motion should be
12 denied.
13 A. Plaintiff Failed to Engage in Good Faith Meet and Confer
14 Pursuant to Code of Civil Procedure § 2016.040 a party moving to compel must make
15 areasonable and good faith attemptat an informal resolution of each issue presented by the
16 motion prior to filing. Here, plaintiff's counsel’s declaration is insufficient. As an additional
17 note, plaintiff has served an excessive amount of discovery requests in this matter. The
18 subject requests are Numbers 208 through 232. Defendant has provided responses and
19 documents in good faith throughout the course of litigation. Plaintiffs instant motion was
20 filed unnecessarily. Defendant indicated its intention to produce numerous documents,
21 which itis still working on gathering due to the burdensome nature of the task. Rather than
22 agree to a mutual extension, plaintiff proceeded to file a motion to compel documents,
23 which EMC intends to produce. (See Separate Statement, Request Nos. 208-214, 220-221,
24 223, 227, 230-232.) Therefore, the vast majority of plaintiffs motion to compel concerns
25 requests with which defendant has already agreed to comply.
26 Further, at the time of plaintiff's meet and confer correspondence, counsel for EMC,
27 Ian Scharg was ona preplanned vacation. (Declaration of lan Scharg (Scharg Declaration),
28 at 13.) Once Mr. Scharg returned to California on August 21, 2021, he was unable to present
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OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO RFP, SETS 6 AND 7
to his office as his children necessitated quarantine for one week. (Scharg Declaration at
14.) As a result, Mr. Scharg was unable to conduct any meaningful work until his return to
the office the week of August 30, 2021. (Scharg Declaration at 15.) By that time, plaintiff had
already filed the instant motion to compel. (Scharg Declaration at 15.)
Moreover, on August 13, 2021, Kimberly Powers, Mr. Scharg’s legal assistant, suffered
a myocardial infarction and required hospitalization and surgical intervention. (Declaration
of Kimberly Powers (Powers Declaration), 13.) Ms. Powers was out of the office on medical
leave the following week, August 16 through August 20, 2021. (Powers Declaration, 14.)
During this same time, Mr. Scharg was out ona prepaid vacation. As a result, their desk was
10 manned by other attorneys and secretaries, who provided assistance to the extent able given
11 the demands of their own desks. (Powers Declaration, 15.)
12 Therefore, plaintiff's meet and confer lacked good faith and preyed upon a moment
13 wherein the attorney handling the matter was knowingly unavailable and his secretary
14 suffered a medical emergency. As such, plaintiff's motion to should denied. In the event the
15 motion is granted, the Court should set a reasonable time for production considering the
16 burdensome nature of the task.
17 B. Defendant Should Not be Compelled to Produce Documents Which Do Not Exist
18 Plaintiff has moved to compel further response to Request No. 222. As defendant's
19 response made clear, EMC does not have any responsive documents as they never existed.
20 EMC conducted a reasonable search and diligent inquiry and determined there is no job
21 description for the position of "Assistant Risk Manager" and never has been. There are no
22 documents for EMC to produce and as such it should not be compelled to produce
23 documents which never existed. Plaintiff's motion should be denied.
24 Cc. Board of Trustees Documents
25 The Court should not order Defendant to produce conflict of interests documentation
26 concerning the Board of Trustees. Any documents concerning conflicts of interests consist
27 entirely of personal identifying information for third parties with which the Board of Trustees
28 members may interact. (See Declaration Michael Wiltermood (Wiltermood Declaration),
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OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO RFP, SETS 6 AND 7
filed herewith, at 13.)
The Court should also not order Defendant to produce meeting agendas and minutes
for the Board of Trustees because these documents are irrelevant and privileged to the
extent they contain quality improvementand patient safety issues. Further, these documents
contain information concerning many other issues and as such include information
protected by third party privacy rights. (Wiltermood Declaration, 14.)
The requests for communications between the Board of Trustees and EMC’s
executive committee should be denied as no such documents exist.
Further, the information requested is wildly overbroad to the issues in this case.
10 Additionally, the requested documents are comprised of third party information, which is
11 privileged and protected.
12 Accordingly, plaintiff's motion should be denied.
13 D MIDAS Documentation
14 Plaintiff also requested documentation regarding the MIDAS system. Atthe outset, the
15 request itself is not narrowly tailored or clear. Plaintiff requests all documentation regarding
16 this system so it is unclear whether the request refers to things like manual, software
17 booklets, or other technological aspects or whether it requests entries into the system. As
18 to documents regarding the technology, the request is irrelevant to this elder abuse action.
19 Regarding the entries into the system, the requested documents are protected against
20 disclosure pursuant to Evidence Code sections 1156 and 1157 and the Patient Safety and
21 Quality Improvement Act of 2005 (Patient Safety Work Product), 42 U.S.C. § 299b-21 et seq.
22 As made clear by the Declaration of Kathy Cawthon, entries into the MIDAS system
23 are those which would not be put into a patient's medical record concerning patient safety
24 and quality improvement. This is an internal documentation system used exclusively for
25 documenting and recording quality concerns/patient safety concerns. (Declaration of Kathy
26 Cawthon (Cawthon Declaration), filed herewith, at 111.)
27 Evidence Code section 1157(a) provides the following:
28 “Neither the proceedings nor the records of organized
committees of medical, medical-dental, podiatric, registered
01384320.WPD 9
OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO RFP, SETS 6 AND 7
dietician, psychological, marriage and family therapist, licensed
clinical social worker, or veterinary staffs in hospitals, or of a
eer review body, as defined in Section 805 of the Business and
P rofessions Code, having the responsibility of evaluation and
improvement of the quality of care rendered in the hospital, or
for that peer review body, or medical or dental review or dental
hygienist review or chiropractic review or podiatric review or
registered dietician review or veterinary review or acupuncturist
review committees of local medical, dental, dental hygienist,
podiatric, dietetic, veterinary, acupuncture, or chiropractic
societies, marriage and family therapist, licensed clinical social
worker, or psychological review committees of state or local
marriage and family therapist, state or local psychological
associations or societies having the responsibility of evaluation
and improvement of the quality of care,_shall be subject to
discovery.”
10 A committee need not be comprised solely of physicians to be protected by peer
11 review; as long as the primary goal of the group is the peer professional evaluation and
12 improvement of the quality of patient care is served, the specific composition of the
13 reviewing body is best left to the health care professionals. (County of Los Angeles v. Superior
14 Court (1990) 224 Cal.App.3d 1446, 1454; see also Santa Rosa Memorial Hospital v. Superior
15, Court (1985) 174 Cal.App.3d 711.)
16 Section 1157 does not define the phrase, “neither the proceedings nor the records.”
17 However, the Supreme Court has stated, “it is unlikely the Legislature intended a narrow or
18 limited definition of ‘records’ in § 1157(a).” (Alexander v. Superior Court (1993) 5 Cal.4th
19 1218, 1225, fn.6, overruled in part on other grounds in Hassan v. Mercy American River
20 Hospital (2003) 31 Cal.4th 709, 724, fn. 4.) For example, in Alexander, the California Supreme
21 Court found that records protected under section 1157 were not just limited to records
22 generated to a committee, but also submitted to a committee, such as hospital staff
23 applications. In so doing, the Court stated:
24 “[NJothing in section 1157(a) limits the privilege to records that
are generated by a medical staff committee, nothing in the
25 statute supports the suggestion that materials submitted to a
committee for review are not protected ‘records’ of the
26
27 statute protects
f‘records’
i
committee. We ive effect to statutes according to the usual,
ordinary import o! the lan: gua: e employed in framii
of medical
them. The
staff committees, and,
contrary to petitioner's suggestion, we perceive no reason to
28 suspect the Legislature intended to exclude staff applications
from the definition of committee records, or to draw the
01384320.WPD 10
OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO RFP, SETS 6 AND 7
‘generated versus submitted distinction advanced by
petitioners.” (Alexander, supra, 5 Cal.4th at p. 1225, italics in
original, internal citations and quotations omitted.)
The Court cited with approval the Florida Supreme Court case Cruger v. Love (Fla.
1992) 599 So.2d 111, which likewise had made such a holding:
“As the Florida Supreme Court recently noted when it addressed
the same issue under a substantially identical statute protecting
the ‘records’ of medical staff committees, the court has no
authori! te qualify the statutory protection by limiting it to
‘oO
materials that are ‘generated by’ a committee: ‘We reject the
interpretation that documents, information, or records in the
ossession of the committee are not protected if they originated
rom sources outside the board or committee proceedings. If
the legislature intended the privilege to extend onl to
documents created by the board or committee, then surely that
10 is what it would have said.’ [Citation.] The Florida court
11 effectivel eliminate the protection
, supra, 5 Cal.4th
ranted
at
b
concluded that an inte retation so limiting the rivilege ‘would
the statute.’
1225-1226. )
{Citation.].” (Alexander
12
13 The Court further noted a contrary interpretation would be inconsistent with the
14 Legislative purpose of Section 1157, which was to elevate the quality of patient care by
15 “armoring staff inquiries with a measure of confidentiality” and “embraces the goal of
16 medical staff candor at the cost of impairing plaintiffs’ access to evidence.” (/d. at 1227,
17 quoting Matchett v. Superior Court (1974) 40 Cal.App.3d 623, 629.) The Alexander court found
18 that the necessary candor to improve patient care in accordance with the Legislative intent
19 of Section 1157 also applied to individuals submitting information to the peer review body
20 for consideration, as peer review bodies require accurate information to be effective and
21 this would be inhibited if Section 1157 did notinclude documents and information submitted
22 to the peer review committee. (Alexander, supra, 5 Cal.4th at 1227-1228.)
23 Records protected under Section 1157 do not lose their protection when they are
24 transmitted to files outside of the peer review committee. For instance, hospital
25 administration files (e.g., personnel files), which are not protected under Section 1157, “are
26 discoverable only to the extent they do not contain references to the immune proceedings.”
27 (Saddleback Community Hospital v. Superior Court (1984) 158 Cal.App.3d 206, 209; accord
28 County of Kern v. Superior Court (1978) 82 Cal.App.3d 396, 401-402; Matchett, supra 40
01384320.WPD 1
OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO RFP, SETS 6 AND 7
Cal.App.3d at 628.)
A “medical staff committee” or “peer review body” includes not only committees
comprised solely of physicians, but also multidisciplinary committees in which the majority
of the members are nurses and administrators. (Santa Rosa Memorial Hospital v. Superior
Court, supra, 174 Cal.App.3d at 718-721.) The privilege extends to committees that review
not only physicians but also any other aspects of hospital activities that relate to “evaluation
and improvement of the quality of care rendered in the hospital.” (/d. at 720-21.)
Section 1157's prohibition against discovery has been described as a “complete
protection” (Bell v. Sharp Cabrillo Hospital (1989) 212 Cal.App.3d 1034, 1046), an “absolute”
n.”
10 immunity (Snell v. Superior Court (1984) 158 Cal.App.3d 44, 49), and a “blanket exclusio
i (Roseville Community Hospital v. Superior Court (1 977) 70 Cal.App.3d 809, 813.) As a general
ns
12 tule, the statutory protection against discovery is construed expansively and any exceptio
13 narrowly. (Scripps Memorial Hospital v. Superior Court (1995) 37 Cal.App.4th 1720, 1724.)
14 Here, Defendant is an acute care facility that has adopted a Patient Safety Events
15 policy that outlines the procedure for identifying, responding to, investigating and reporting
the
16 the occurrence of any event that is outside the scope of normal operations for
17 organization (“occurrences.") (Cawthon Declaration, 113; see Exhibit A attached thereto.)
18 Enloe Medical Center has also adopted an incident reporting policy that outlines procedures
19 to report occurrences. (Cawthon Declaration, 13; see Exhibit B attached thereto.)
20 Included within the definition of occurrences is any incident or condition that could
21 have resulted or did result in harm to a patient. An occurrence can be the result of a
22 defective system or process design, a system breakdown, equipment failure, or human error.
23 (CDPH). (Cawthon Declaration, 14.)
24 Defendant will investigate the source of any occurrence and initiate mitigating actions
25 as indicated. (Cawthon Declaration, 115.)
26 Quality Management will review the circumstances of the occurrences and determine
27 the event review process. Certain occurrences warrant initiation of a preliminary review
28 team that will review the matter for case review Adverse Event reporting criteria, preparation
01384320.WPD 12
OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO RFP, SETS 6 AND 7
of an action plan, recommendations for improvements, and submission of the results to
Quality Committees. (Cawthon Declaration, 16.)
Enloe Medical Center will report these occurrences to CDPH no later than five days
not
after they have been detected. The patient, or the party responsible for the patient, shall
be provided with a copy of the report. The report to CDPH is not part of the patient's medical
record and is maintained under Evidence Code section 1157 protection. (Cawthon
Declaration, 17.)
The purpose of the occurrence reporting policy is to define the process for identifying,
reporting, and responding to any occurrence that is not consistent with routine hospital
10 operations or situations that may potentially or actually result in injury, harm, or loss to any
YW patient, visitor, student, volunteer, medical staff or employee of Enloe Medical Center.
12 (Cawthon Declaration, 18.)
13 The purpose of the occurrence report is to gather objective information and facts
14 about the events that occurred outside of regular hospital operations, allow for objective
15 review of care provided, offer education and develop ongoing performance strategies to
16 ensure all patients receive high quality of care. (Cawthon Declaration, 99.)
17 The manager of the department where the event occurred is responsible for ensuring
18 areport is entered into the MIDAS Risk Incident Report module within 72 hours of the event.
19 The department manager will complete the initial investigation and documentation of the
20 event within seven days. (Cawthon Declaration, 110.)
21 Enloe Medical Center inputs any information which would not be put into a patient's
22 medical record concerning patient safety and quality improvement into the MIDAS hospital
23 management system. This is an internal documentation system used exclusively for
24 documenting and recording quality concerns/patient safety concerns. (Cawthon Declaration,
25 111.)
26 No copies or printouts of an occurrence report can be made for any purpose. In
27 addition, no reference to the report is to be made in the medical records, nor shall any
28 reference be made that one has been or will be completed or submitted. (Cawthon
01384320.WPD 13
OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO RFP, SETS 6 AND 7
Declaration, 112.)
Data and information derived from the collective submission of occurrence reports
will be reported on an ongoing basis to the appropriate board and medical staff committees
that monitor organization performance to ensure risk reduction strategies are implemented
to reduce the number of events. (Cawthon Declaration, 113.)
Plaintiff's request for production of documents No. 229 seeks information that is peer
review protected. These Patient Safety Work Product records for these types of events
include analysis, potential opportunities for improvement, comparisons to identify trends,
identification of any contributing and mitigating factors, and are also reported to various
10 medical staff and organizational committees as appropriate. These types of events fall
11 within the reporting structure of the organization and medical staff and are protected by
12 Evidence Code section 1157 and Collaborative Healthcare Patient Safety Organization
13 (CHPSO). (Cawthon Declaration, 114.)
14 Plaintiff's request No. 229 seeks proceedings and records of organized committees
15 of medical staff in hospitals, or of a peer review body, as defined in Section 805 of the
16 Business and Professions Code, and are protected under Evidence Code section 1157, and
17 under the Patient Safety Work Product protections of the Collaborative Healthcare Patient
18 Safety Organization (CHPSO), having the responsibility of evaluation and improvement of the
19 quality of care rendered in the hospital, or for that peer review body. (Cawthon Declaration,
20 115.)
21 E. Plaintiff Failed to Set Forth Good Cause to Compel Further Responses
22 Further, Plaintiff has not set forth specific facts showing good cause justifying
23 discovery sought by the demand, as Code of Civil Procedure section 2031.310(b) requires
24 them to do.
25 Additionally, according to California Rules of Court, Rule 3.1345(c),a separate
26 statement must be full and complete and must include each discovery request, the answer,
27 a statement of factual and legal reasons compelling production. Plaintiffs separate
28 statement fails and cannot be responded to in its present form. Plaintiff fails to set forth any
01384320.WPD 14
OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO RFP, SETS 6 AND 7
facts which would justify discovery on issues wholly unrelated to those that willbe presented
to a jury. Plaintiff's motion embarks on a fishing expedition, which should not be permitted
by this Court. Therefore, plaintiff's motion should be denied for failing to comply with Rule
3.1345.
The law is clear that motions to compel further responses to requests for production
“shall set forth specific facts showing good cause justifying the discovery sought by the
demand.” (Code Civ. Proc., § 2031.310(b).) Here, Plaintiff has failed to assert any specific
facts, supported by evidence, to establish good cause to justify disclosure of the
documents requested. This Court should require Plaintiff to do more than merely file a
10 complaint and make conclusory allegations before ordering Defendant, a non-profit medical
11 facility, to produce third party private information. (See Code Civ. Proc., § 2031.310(b).)
12 IV.
13 CONCLUSION
14 Based on the foregoing, Plaintiff's Motion to Compel Further Responses to Requests
15 for Production of Documents, Set Six and Set Seven from Defendant Enloe Medical Center
16 should be denied because the subject matter and documents requested:
17 a) violate Defendant’s Quality Assurance Immunity pursuant to Evidence
18 Code section 1157;
19 (2) seek information which is protected by third party privacy rights,
20 (3) go beyond issues related to the issues raised in this case; and
21 (4) are overbroad, burdensome, and irrelevant.
22 Further, plaintiff failed to reasonably and in good faith meet and confer prior to filing his
23 motion to compel.
24 Dated: September 9, 2021
25 SCHUERIYG ZIMME Dove, LLP
26
27 By
IAN AR
28 Att s for Defendant ENLOE MEDICAL
CE
01384320.WPD 15
OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO RFP, SETS 6 AND 7
Proof of Service by Electronic Transmission - Civil
[Code of Civ. Proc. §§ 1010.6, 1011, 1013, 1013a, 2015.5; Cal. Rules of Court, rules
10.503, 2.100-2.119, 2.251]
I, Lucia Ruiz, declare:
At the time of service, I was over 18 years of age and not a party to this action. My
business address is: 400 University Avenue, Sacramento, California 95825.
On September 9, 2021, I served the following documents:
. OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO
REQUEST FOR PRODUCTION OF DOCUMENTS, SETS 6 AND 7;
10 RESPONSE TO SEPARATE STATEMENT;
11 DECLARATION OF ALAINA T. DICKENS;
12 DECLARATION OF IAN A. SCHARG;
13 . DECLARATION OF KIM A. POWERS; and
14 . DECLARATION OF MICHAEL WILTERMOOD
15 by electronic service. I served the documents by email to the addresses listed below. I did
16 not receive, within a reasonable time after the transmission, any electronic message or other
17 indication that the transmission was unsuccessful.
18 Attomey Representing Phone/Fax/E-Mail
19 Jack Vetter, Esq. Plaintiff John PHONE: 916-441-4441
1903 21* Street O'Connell FAX: 916-456-6698
20 Sacramento, CA 95811 EMAIL:
jvetter@vetterlawoffice.com
21 ris@vetterlawoffice.com
22
David Smith, Esq. Plaintiff John PHONE: 916-333-5933
23 Smith Zitano Law Firm, LLC O'Connell FAX: 916-333-5338
641 Fulton Ave., Suite 200 EMAIL:
24 Sacramento, CA 95825 dsmith@smithzitanolaw.com
klopez@smithzitanolaw.com
25 contact@smithzitanolaw.com
esimmons@smithzitanolaw.com
26
27
28
01384320.WPD 16
OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO RFP, SETS 6 AND 7
Attorney Representing Phone/Fax/E-Mail
John Garner, Esq. Plaintiff John PHONE: 530-934-3324
109 N Marshall Ave. O'Connell FAX: 530-934-2334
Willows, CA 95988 EMAIL:
john@garner-associates.com
peter@garner-associates.com
marina garner-associates.com
monica@garner-associates.com
John Quincy Brown, III Defendant Allison PHONE: 916-449-3800
Hard Erich Brown & Wilson Guster FAX: 916-449-3888
455 Capitol Mall, Suite 200 EMAIL: jbrown@hebw.com
Sacramento, CA 95814 sroetken@hebw.com
csimmons@hebw.com.
10 D. Marc Lyde, Esq. Defendants Deron PHONE: 530-345-3494
Michael Gallert, Esq. Ludwig, M.D., and EMAIL:
11 Leonard & Lyde North alley leonardandlyde@gmail.com
1600 Humboldt Road, Suite 1 Surgical Associates marc.lyde@gmail.com
Chico, CA 9592 michaelgallert@yahoo.com
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I declare under penalty of perjury, under the laws of the State of California, that the
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foregoing is true and correct, and that this declaration was executed on September 9, 2021,
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at Sacramento, California.
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18 Lucia Ruiz
1579-11148
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