The Regents of The University of California vs. Kaiser Foundation Hospitals

Motion to Compel

Cal. Super. - 4th Dist.May 19, 2017

O O 0 0 N N O N Un » A W W N D = N O N N N N N N N N D me m or m p m m d p m p d pe d e d pe d p e C 0 N N O N U n b h W N = O o O O 0 0 N D R A W N D = O STEPHENSON, ACQUISTO & COLMAN JOY Y. STEPHENSON, ESQ. (SBN 113755) RICHARD A. LOVICH, ESQ. (SBN 113472) SHADI SHAYAN, ESQ. (SBN 265467) AANCHAL V. SANGHVI, ESQ. (SBN 315053) 303 N. Glenoaks Blvd., Suite 700 Burbank, CA 91502 Telephone: (818) 559-4477 Facsimile: (818) 559-5484 Attorneys for Plaintiff THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, a public trust corporation, on behalf of the University of California, Irvine Medical Center SUPERIOR COURT OF CALIFORNIA FOR THE COUNTY OF ORANGE THE REGENTS OF THE Case No.: 30-2017-00921367 UNIVERSITY OF CALIFORNIA, a public trust corporation, on behalfTHE PLAINTIFF’S NOTICE OF MOTION UNIVERSITY OF CALIFORNIA, AND UNIFIED MOTION TO COMPEL IRVINE MEDICAL CENTER, FURTHER DISCOVERY RESPONSES Plaintiffs Hearing Date: January 23, 2019 Hearing Time: 10:00 am VS. Dept: C25 [Filed concurrently with Memorandum KAISER FOUNDATION HOSPITALS,|of Points and Authorities in Support of a California corporation; KAISER Motion to Compel; Declaration of Shadi FOUNDATION HEALTH PLAN,a Shayan; Separate Statement; and California corporation; SOUTHERN (Proposed) Order] CALIFORNIA PERMANENTE MEDICAL GROUP, a California Action filed: April 17,2017 partnership; THE PERMANENTE MEDICAL GROUP, INC., a California |ITial Date: August 26, 2019 corporation; KAISER FOUNDATION HEALTH PLAN OF GEORGIA, a Georgia corporation; KAISER FC 17600 -1- PLAINTIFF'S NOTICE OF MOTION AND UNIFIEDMOTION TO COMPEL FURTHER DISCOVERYRESPONSES O © 0 3 O& O U n B b W W N D = N N N N N N N N N e m e m p d p d p e pe d pe d p e p e C O N N O N W n B h W I N D = O O D O 0 0 N D B W -- = O o PERMANENTE INSURANCE COMPANY, a California corporation; and DOES 1 THROUGH 25, INCLUSIVE, Defendants. TO DEFENDANT, KAISER PERMANENT INSURANCE COMPANY, AND ITS ATTORNEY OF RECORD: PLEASE TAKE NOTICE that on January 23, 2019, or as soon as can be set by the court, at 10:00 A.M., in Department C25 of the above-entitled Court, Plaintiff The Regents of the University of California, on behalf of University of California, Irvine Medical Center (“UC Irvine Health”) will and hereby does move this Court for an Order compelling Defendant Kaiser Permanente Insurance Company (“Kaiser”) to provide further responses to UC Irvine Health’s discovery requests: Requests for Special Interrogatories, Set Two and Requests for Production of Documents, Set Two (“Discovery Requests Sets No. Two”). PLEASE TAKE FURTHER NOTICE that this Motion is made pursuant to Cal. Civ. Proc. Code (C.C.P.) §2031.310; and is made on the grounds that (1) Kaiser failed to provide substantive responses in response to the Discovery Requests Sets No. Two; (2) Kaiser’s failure to provide substantive responses to discovery propounded is unjustified; and (3) all efforts to meet and confer with Kaiser have failed to resolved this matter. PLEASE TAKE FURTHER NOTICEthat this Motion is based upon this Notice of Motion, the Memorandum of Points and Authorities in support thereof, the Declaration of Shadi Shayan, the Court’s file on record, any facts or documents upon which the Court may or must take judicial notice, and further argument or FC 17600 - 2 - PLAINTIFF'S NOTICE OF MOTION AND UNIFIED MOTION TO COMPEL FURTHER DISCOVERY RESPONSES O O 6 0 9 O& O W n BA » W N = N D N N N N N N N N D r m e m e m p m p d e m p e e e p e p e 0 0 N N O N n h A W N = O O L O 0 0 N D W N evidence that may be produced before or at the hearing of this Motion. Dated: STEPHENSON, ACQUISTO & COLMAN SHADI SHAYAN Attorneys for THE REGENTS OF THE UNIVERSITY OF CALIFORNIA,a public trust corporation, on behalf of the University of California, Irvine Medical Center FC 17600 -3- PLAINTIFF'S NOTICE OF MOTION AND UNIFIED MOTION TO COMPEL FURTHER DISCOVERY RESPONSES O O 6 0 3 9 O N U n ~ ~ W W N h = N O N N N N O N O N N N r m r m m t p d p m e d pe d p d e d 0 N N O N O n B A W N N = O o O O 0 N N B l N D - = O o MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION AND SUMMARY OF ARGUMENT A. UC Irvine Health’s Introductory Statement in Support of its Motion to Compel This case involves an overarching issue: Whether Plaintiff’s billed charges for Patient No. 7 as pled in Plaintiff’s First Amended Complaint (“Patient J.N.”) are “reasonable.” The Regents of the University of California on behalf of the University of California, Irvine Medical Center (“UC Irvine Health”) asserts that they are. UC Irvine Health brings this Motion before the Court because Defendant Kaiser Permanente Insurance Company (“Kaiser”) has denied the production of documents and responses to special interrogatories that go to the heart ofUC Irvine Health’s case involving “reasonable” charges, including its causes of action for quantum meruit and breach of implied in fact contract. Kaiser, for its part, has asserted a number of affirmative defenses to UC Irvine Health’s complaint in this action. Chiefly, Kaiser asserts that UC Irvine Health’s billed charges for Patient J.N. are unreasonable, and that Kaiser’s evaluation has found that the usual and customary rates are an amount lower than the billed charges for the claim. UC Irvine Health attempted to test these assertions by propounding various forms of discovery, including written interrogatories and requests for production of documents. Despite attempts to meet] and confer on these issues, the parties were unable to reach resolution on the issues described below, and thus the intervention of the Court is necessary. FC 17600 -4 - PLAINTIFF'S NOTICE OF MOTION AND UNIFIED MOTION TO COMPEL FURTHER DISCOVERY RESPONSES O O 0 3 O& O U n K h W W N D = N S I E T T E S y - 0 N N O N U n b h W I N D = O O O O N N N B R A W N = O On September 10, 2018, UC Irvine Health propounded the following written discovery upon Kaiser: Request for Production of Documents, Set Two (the "RPD") and Special Interrogatories, Set Two (“Special Interrogatories”). Declaration of Shadi Shayan § 6 (“Shayan Decl.”). UC Irvine Health tailored its RPDs and Special Interrogatories to delve into critical issues of this case and to essentially determine why Kaiser underpaid UC Irvine Health for payment for Patient J.N. (Shayan Decl. § 7). In particular, the RPD and Special Interrogatories sought documents to support the findings of Kaiser’s methodology, policies and procedures set for the payment calculation. Kaiser served its Responses and Objections to the RPD and Special Interrogatories on October 11, 2018 and has produced no documents responsive to the vast majority of those requests ofthe date of this motion filing. (Shayan Decl. 9 8). On November 1, 2018, UC Irvine Health sent a meet and confer letter to address the deficiencies in Kaiser’s responses. Id. at § 9. In response, Kaiser sent a letter on November 16, 2018, refusing to provide any documents on those Requests. Id. As will be demonstrated below in greater depth, the requested information and documents meet the test of discoverability imposed by the California Code of Civil Procedure, are not protected under any applicable privilege, and are subject to the existing Protective Order. Hence, Kaiser ought to be compelled to produce them. Therefore, UC Irvine Health respectfully request this Court’s intervention to compel Kaiser to provide this information. FC 17600 -5- PLAINTIFF'S NOTICE OF MOTION AND UNIFIED MOTION TO COMPEL FURTHER DISCOVERY RESPONSES O O 0 0 J O& O U n B A W W N D - - N N N N N N N N N m m m m e m e m e e e e p e e m e e e e 0 9 A n n B A W I N D = O O O N D D R A W N = IL. THE LEGAL STANDARD OF DISCOVERABILITY A. General Discoverability Standard "Unless otherwise limited . . . any party may obtain discovery regarding any matter, not privileged . . . if that matter either is itself admissible as evidence or appears reasonably calculated to lead to the discovery of admissible evidence." C.C.P. § 2017.010. As to requests for production of documents, C.C.P. § 2031.310 authorizes a requesting party to move to obtain a further written response to a document demand where such a motion set forth "specificfacts showing good cause justifying the discovery sought by the inspection demand." C.C.P. § 2031.310(b) (1) (emphasis added); Kirkland v. Superior Court, 95 Cal. App. 4™ 92, 98 (2nd Dist. 2002). For purposes of discovery, information should be regarded as “relevant to the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof. Gonzalez v. Sup. Ct. (City of San Fernando), 33 Cal. App. 4™ 1539, 1546 (2" Dist. 1995) (emphasis added). Admissibility at trial of the information being sought is not required; rather, the test is whether the information sought may aid in the parties’ in preparation for trial. Davies v. Superior Court, 36 Cal.3™ 291, 301 (1984). In turn, responding party is required to either make "[a] statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling..." C.C.P. § 2031.210 (a) (1); or "[a] representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item FC 17600 -6- PLAINTIFF'S NOTICE OF MOTION AND UNIFIED MOTION TO COMPEL FURTHER DISCOVERY RESPONSES O O 0 0 3 O& O W n B A W N 0 N N O N U n B A W B N = , O O O V 0 J N A i A V W N D - ~ © or category of item." C.C.P. § 2031.210 (a) (2). A "representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and reasonable inquiry has been made in an effort] to comply with that demand." C.C.P. § 2031.230. In addition, the statement of inability to comply must also "specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost misplaced, or stolen, or has never been, or is no longer, in the possession, custody or control of the responding party." Id. Finally, the statement of inability to comply must "set forth the name and address of any natural person or organization known or believed by that party to have possession, custody or control of that item or category of item." Id. The party disputing the production bears the burden of establishing lack of relevancy or lack of potential to lead to admissible evidence. Oleson v. Kmart Corp.,175 F.R.D. 560, 565 (D.Kan.1997) (“The objecting party has the burden to substantiate its objection.”) Without such elaboration, a recitation that the discovery requestis “overly broad, burdensome, oppressive and irrelevant” is not adequate to voice a successful objection. Josephs v. Harris Corp., 677 F.2d 985, 992 (3d Cir.1982) (The party resisting discovery must instead “show specifically how ... each interrogatory [or request for production] is not relevant or how each question is overly broad, burdensome or oppressive.”). B. Standards Regarding Written Discovery The following quote from the California Code of Civil Procedure regarding interrogatories (form or special) sets out the basis for the instant motion to compel: FC 17600 - 7 - PLAINTIFF'S NOTICE OF MOTION AND UNIFIED MOTION TO COMPEL FURTHER DISCOVERY RESPONSES O © 0 0 N N O& O n h p b Ww W N D - - B N N N N N N N N N m m e m e m e m e e e t p e e t e d p e On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete; (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documentsis inadequate; (3) An objection to an interrogatory is without merit or too general. Cal. Civ. Proc. Code § 2030.300(a). The enabling statutes for document production requests has nearly identical wording. Cf. Cal. Civ. Proc. Code § 2031.310(a) (document production requests) to Cal. Civ. Proc. Code § 2030.300(a). IIL. KAISER’S RESPONSES AND OBJECTIONS TO UC IRVINE HEALTH’S WRITTEN DISCOVERY ARE WITHOUT MERIT The written discovery of the Requests for Production of Documents and special interrogatories sought by the instant Motion pertain to the fundamental issue of the entire matter in dispute: Kaiser’s basis for its payment of Patient J.N.’s claim (Shayan Decl. § 3.) While Kaiser has responded to UC Irvine Health’s Requests for Production of Documents and Special Interrogatories, it has elected to assert boilerplate, meritless objections to the majority of the requests and has fallen short of its obligations under the California Code of Civil Procedure. FC 17600 -8- PLAINTIFF'S NOTICE OF MOTION AND UNIFIED MOTION TO COMPEL FURTHER DISCOVERY RESPONSES O O 0 0 N N O N n n b h W N N o N N N N D N N N D D N m e e m e e e m p e e e b e t p e d p e d e d c o N N O N U n B A W N D = O O V W 0 0 N N O N N R A W I N D -~ = O O A. Further Responses from Kaiser Are Warranted Because the Questions are Narrowly Tailored, Relevant and Likely to Lead to Admissible Evidence. Discovery is intended to “take the ‘game’ element out ofthe trial preparation” and “designed to minimize the opportunities for fabrication and forgetfulness.” Puerto v. Superior Court, 158 Cal.App.4™ 1242, 1249 (2008) [citation omitted]. However, Kaiser disregarded the basic principles of discovery when it avoided making any substantive responses by way of meritless objections. As explained below, the objections are not well taken because the written discovery is reasonably calculated to obtain information as to the relevant processes in place at Kaiser and to find out the payment calculation for Patient J.N, which is relevant to establishing the theory of “reasonableness” in UC Irvine Health’s case. B. Kaiser Failed To Provide Proper Responses To Written Discovery Pertaining To How It Determined “Reasonable” Payments At the crux ofthis dispute is how Kaiser determined whatit believesis the “reasonable” value of services for Patient J.N, who received outpatient infusion medical services at UC Irvine Health from March 3, 2015 to July 4, 2015. The requests propounded by UC Irvine Health seek the identification and production of relevant documents, including agreements that Kaiser has with other providers, evidencing whether Kaiser’s payment to UC Irvine Health was “reasonable.” Any documents produced by Kaiser in response to those requests would be subject to the parties’ Protective Order and could be stamped “Confidential - Attorney’s Eyes only”. However, Kaiser evaded its obligations under the Code of Civil Procedure by providing patently insufficient responses to the discovery. As FC 17600 -0. PLAINTIFF'S NOTICE OF MOTION AND UNIFIED MOTION TO COMPEL FURTHER DISCOVERY RESPONSES O O 0 N N O& O W n b b W W N D N O N N N N N N N N N N r m o m o m op m p m p m p m p m p m C 0 N N O N W n B h W N D = O O 0 0 0 N D B W N D - = O o demonstrated in the separate statement, the discovery requests at issue were narrowly tailored and straightforward. C. Kaiser Refuses to Provide Proper Responses Pertaining to Its Payments to Other Contracted and Non-Contracted Providers Kaiser has further objected to producing documents related to its contracted and non-contracted payments with other hospitals regarding similar, if not identical, medical services that were provided to Patient J.N. In fact, Kaiser provided nothing but blanket objections to those requests. Kaiser’s payments to other hospitals are relevantto interpreting how Kaiser determined thatits partial payment to Patient J.N. was “reasonable.” Further, the payments to other hospitals can be compared with Kaiser’s payment to UCI to determine Kaiser’s payment methodology. D. Further Responses from Kaiser is Warranted Because the Requests Are Not Overbroad, Vague, Ambiguous or Oppressive California’s discovery rules are liberally construed, and any doubtis generally resolved in favor of permitting discovery. Coloniallife & Accident Ins. Co. v. Superior Court, 31 Cal.3d 785, 790 (1982). Kaiser objected RPD Nos. 20- 22 and Special Interrogatories Nos. 6-7 by stating that they are overbroad, vague, ambiguous or oppressive. Kaiser’s objections on those grounds are disingenuous. UC Irvine Health has made it clear that these documents pertain to Patient J.N. in this case. Further, for the contracted and non-contracted payment information, UC Irvine Health has limited the timeline from 2014 to the present. That timeline is relevant because the FC 17600 -10- PLAINTIFF'S NOTICE OF MOTION AND UNIFIED MOTION TO COMPEL FURTHER DISCOVERY RESPONSES O O 0 N O N W n A W N D N O N N N N N N O N O N r m e m p m p m p d p m m d e d pe d p e 0 0 N N O N n n B A W N N = O O O V 0 0 N D B R A W N = O patient received services in 2015, and the rates and payment to other hospitals within that time range may show how Kaiser determined that its partial payment for Patient J.N. was “reasonable.” Kaiser’s inaction is in violation of C.C.P. § 2031.230, which requires “a diligent search and reasonable inquiry” in an effort to comply with that demand. D. Kaiser Should be Compelled to Provide Amended, Verified Responses UC Irvine Health’s discovery requests are targeted toward precise, narrow issues regarding Kaiser’s policy and procedures in paying the claim in dispute and calculation of that payment. Kaiser has inexcusably provided boilerplate objections to UC Irvine Health’s written discovery, thus disregarding the rules of California Civil Procedure. As a result, UC Irvine Health is prejudiced in its preparation ofthe trial at this juncture. Fairness dictates that Kaiser cannot simultaneously claim UC Irvine Health’s charges were "not reasonable" as a matter ofstatistics or ambiguous criteria on one hand, and yet, on the other hand, deny UC Irvine Health the right to examine the documentary basis regarding how and why those particular guidelines were chosen, and how those guidelines were applied to payment of Patient J.N. at hand. Hence, Kaiser should be compelled to provide amended, verified responses. IV. CONCLUSION Forall the foregoing reasons, UC Irvine Health respectfully requests this Court enter an Order compelling Kaiser to provide, within ten (10) business days of the Order on this Motion: complete (without objections) and straightforward FC 17600 -11- PLAINTIFF'S NOTICE OF MOTION AND UNIFIED MOTION TO COMPEL FURTHER DISCOVERY RESPONSES © 0 0 3 & U n ~ ~ W W N D = N O N O N N N N N N N D e e e e e m e m e m e e e e e s 0 ~ ~ O N W L A W N = © V W O N O BR E W N O amended, verified responses to UC Irvine Health's written discovery for the Request for Production of Documents, Set Two, Nos. 20-22 and Special Interrogatories, Set Two, Nos. 6-7. Dated: November 29, 2018 STEPHENSON, ACQUISTO & COLMAN ya (SHADI SHAYAN Attorneys for THE REGENTS OF THE UNIVERSITY OF CALIFORNIA,a public trust corporation, on behalf of the University of California, Irvine Medical Center FC 17600 -12- PLAINTIFFS NOTICE OF MOTION AND UNIFIED MOTION TO COMPEL FURTHER DISCOVERY RESPONSES O S O O O w N N N n n R W = B Y M D D D = e m e e e e e e e e e e e e N D = O O O w 0 N N o N n n B R W D 24 25 26 27 28 PROOF OF SERVICE I am employed in the county of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 303 North Glenoaks Boulevard, Suite 700, Burbank, California 91502-3226. On 29 November 2018, I served the foregoing document(s) entitled: PLAINTIFF'S NOTICE OF MOTION AND UNIFIED MOTION TO COMPEL FURTHER DISCOVERY RESPONSES by placing a true copy thereof enclosed in a sealed envelope addressed per the attached Service List. [1] BY U.S. MAIL: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the United States Postal Service on that same day with postage thereon fully prepaid at Burbank, California in the ordinary course of business. 1 am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. [C.C.P. 1013a(3); F.R.C.P. 5(b)] BY FEDERALEXPRESS: I caused such envelope(s), with overnight Federal Express Delivery Charges to be paid bythis firm, to be deposited with the Federal Express Corporation at a regularly maintained facility on the aforementioned date. [C.C.P. 1013(c) 1013(d)] BY PERSONALSERVICE: 1 caused the above-stated document(s) to be served by personally delivering a true copy thereof to the individuals identified above. [C.C.P. 1011(a); F.R.C.P. 5(b)] BY EXPRESS MAIL: I caused such envelope(s), with postage thereon fully prepaid and addressed to the party(s) shown above, to be deposited in a facility operated by the U.S. Postal Service and regularly maintained for the receipt of Express Mail on the aforementioned date. [C.C.P. 1013(¢)] BY TELECOPIER: Service was effected on all parties at approximately ~:am/pm by transmitting said document(s) from this firm's facsimile machine (818/559-4477) to the facsimile machine number(s) shown above. Transmission to said numbers was successful as evidenced by a Transmission Report produced by the machine indicating the documents had S O 0 N y W n B R E W r o b o N o b o r o r o b o r o r o - _ p - -_ - n t p - p - - - -_ - p t been transmitted completely and without error. C.R.C. 2008(e), Cal. Civ. Proc. Code § 1013(e). [ ] BY ELECTRONIC SERVICE: By emailing true and correct copies to the personsat the electronic notification address(es) shown on the accompanying service list. The document(s) was/were served electronically and the transmission was reported as complete and without error. [X] State: I declare under penalty of perjury under the lawsofthe State of California that the above is true and correct. Executed on 29 November 2018 in Burbank, California. Karine [sagulyan SERVICE LIST Rey S. Yang, Esq. YANG PROFESSIONAL LAW CORPORATION 80 S. Lake Ave, Suite 820 Pasadena, CA 91101 (626) 921-4300 phone (626) 243-7050 fax