Nicole Denise Griggs vs Cottage Health et al

Case Number

21CV04146

Case Type

Hearing Date / Time

Fri, 09/13/2024 - 10:00

Nature of Proceedings

Motion to Compel

Tentative Ruling

For the reasons set for the below, plaintiff’s motion to compel is denied.

Background:

Plaintiff Nicole Denise Griggs (Griggs) filed the current action on October 18, 2021. She filed her first amended complaint (FAC) on February 17, 2022, in propria persona, against nine defendants, including Cottage Health Inc. (Cottage). Griggs’ FAC sets forth a cause of action for professional negligence (medical malpractice).

Griggs claims that on July 9, 2019, among other things, that she suffered an internal cystic rupture and received negligent care at Saint Ynez Cottage Hospital. (FAC, p. 4, ll. 12-22.) Griggs states that she then went to Santa Barbara Cottage Hospital and again received negligent medical care. (FAC, p. 5, ll. 9-18.) Griggs then claims that she went to Goleta Cottage Hospital and received negligent medical care and was assaulted by a security guard. (FAC, p. 8, ll. 11-23.)

On September 26, 2022, Cottage filed a motion for an order to declare plaintiff a vexatious litigant. Griggs did not file an opposition. The hearing was scheduled to take place on January 13, 2023. Plaintiff appeared, presented argument, and requested a continuance. The matter was continued to January 27, 2023. By way of stipulation, the hearing was continued a second time to February 10, 2023. At the February 10, 2023, hearing, Griggs appeared remotely, and defense counsel appeared in person.

As a result of the February 10, 2023, hearing, Griggs was declared a vexatious litigant subject to all the pre-filing requirements of Code of Civil Procedure section 391.7 and ordered to post security in the amount of $1,000.00, for the benefit of Cottage, pursuant to Code of Civil Procedure section 391.4. Griggs posted security in February 2023.

On July 31, 2023, Griggs filed a motion to vacate vexatious litigant status, return security bond deposit, and change venue. On October 27, 2023, the motion was denied.

On July 9, 2024, Griggs filed the present “motion to compel.” By way of the motion, Griggs asks the court for orders compelling Cottage to produce video surveillance pursuant to subpoenas, and to compel a response to an interrogatory. She also requests that the court hold Cottage’s counsel in contempt of court.

Cottage opposes the motion.

Griggs late-filed a reply on September 9, 2024. The reply does not address any of the issues presently before the court.

Analysis:

“Notices must be in writing, and the notice of a motion, other than for a new trial, must state when, and the grounds upon which it will be made, and the papers, if any, upon which it is to be based.” (Code Civ. Proc., § 1010.)

“Section 1010’s requirement “ ‘is for the benefit of the party upon whom the notice is served,’ ” to make him or her aware of the issues to be raised in the motion. (Hecq v. Conner (1928) 203 Cal. 504, 506, 265 P. 180; see also Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1277, 203 Cal.Rptr.3d 183 (Kinda).) As stated in Kinda: “ ‘The purpose of the notice requirements ‘ “is to cause the moving party to “ ‘sufficiently define the issues for the information and attention of the adverse party and the court.” ’ ” [Citations.]” (Golf & Tennis Pro Shop, Inc. v. Superior Court (2022) 84 Cal.App.5th 127, 137-138.)

Griggs did not file a notice of motion and the grounds upon which she brings her motion is not stated anywhere in the motion. The issues of Griggs’ motion are not defined and the purpose of requiring the notice has not been satisfied.

In motion practice: “The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” (Cal. Rules of Court, rule 3.113(b).)

Griggs’ motion is devoid of “a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.”

Further, Griggs did not file a separate statement, which is required for her motion, and based on her vague descriptions, the court does not even know the subject of the “interrogatory” or the precise language used in the subpoenas that she wishes to compel a response to. The failure to file a conforming separate statement is grounds alone for denying a motion to compel. (See Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 892-893.)

“A separate statement is a separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue. The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response. Material must not be incorporated into the separate statement by reference. The separate statement must include--for each discovery request (e.g., each interrogatory, request for admission, deposition question, or inspection demand) to which a further response, answer, or production is requested--the following: . . . (3) A statement of the factual and legal reasons for compelling further responses, answers, or production as to each matter in dispute.” (Cal. Rules of Court, rule 3.1345(c).)

Because Griggs did not file a separate statement in support of her motion, the motion will be denied.

Alternatively, the motion will be denied on substantive grounds as set forth below.

1. Responses to Subpoenas

Griggs argues that she served subpoenas to Cottage’s attorney on October 13, 2023, and May 24, 2024, for production of video surveillance from all three hospitals listed in the complaint. (Motion, p. 1, ll. 24-27.) Counsel for Cottage informed plaintiff that “they have no such video surveillance even though Plaintiff has an informed recording from a conversation with security at Santa Barbara Cottage Hospital agreeing the hospitals do in fact have video surveillance.” (Motion, p. 1, l. 27 - p. 2, l. 1.)

In support of her motion, Griggs attaches the first page of two subpoenas. The first subpoena specifies October 13, 2023, as the date of production. The second subpoena specifies May 24, 2024, as the date of production. Neither subpoena is filled out correctly in that they are not directed to any person or entity. Under the caption, there is a section that provides: “THE PEOPLE OF THE STATE OF CALIFORNIA, TO (name, address, and telephone number of witness, if known):” The section is left blank on both subpoenas so that one cannot determine to whom the subpoenas are directed. Also, in section 3, either subdivision a or subdivision b is required to be checked. For the second subpoena, neither of the subdivisions is checked. Additionally, other than what Griggs argues in her motion, it is unknown what specific documents or things she was requesting because she has not provided a copy of the description of documents.

Upon receipt of the first subpoena, with the production date of October 13, 2023, counsel for Cottage served a written response on August 23, 2023, stating that “responding party has made a reasonable inquiry and diligent search and has no documents and/or materials responsive to the subpoena because no such documents and/or materials have ever existed.” (Clinkenbeard Decl., ¶ 4 & Exh. C.)

Additionally, in opposition to Griggs’ motion, Cottage submits the declaration of the Security Supervisor for Cottage Health Security Department, Ricardo Marquez which confirms the non-existence of video footage. Marquez declares: (1) “Cottage Health has never installed or operated video cameras which record in patient treatment areas, which would be violative of patient privacy rights.” (Marquez Decl., ¶ 3.); (2) “Cottage Health uses video cameras which record certain hospital public areas such as lobbies and hallways, as well as areas outside of the hospital. Prior to 2021, the videotape system in place would hold videotapes for 30 days. After 30 days, if there was no notice or request for the videotape to be saved manually, the videotape would be routinely overwritten. Presently, any video pertaining to any Cottage Health medical facility that was not saved in 2019 is no longer in existence.” (Marquez Decl., ¶ 4.); and (3) “If Ms. Griggs is requesting videotape(s) involving hospital patient treatment areas, then no such tapes would ever have existed. If Ms. Griggs is requesting videotape(s) from 2019 relating to hospital non-treatment areas, or areas outside of the hospital, then any such tapes would have been overwritten as a matter of course. I have specifically confirmed that no videotapes were saved by Cottage Health involving Nicole Griggs from 2019.” (Marquez Decl., ¶ 5.)

The court cannot compel production of things that do not exist.

The motion to compel further responses to the subpoenas will be denied. This does not prevent Griggs from serving a valid request for production of documents and things pursuant to Code of Civil Procedure, section 2031.010, et seq.

            2. Interrogatory

Griggs next argues that she sent Cottage, through counsel, an interrogatory on February 13, 2024, and that Cottage has refused to answer. Griggs does not provide the court with a copy of the interrogatory, the language of the interrogatory, failed to file a separate statement, and failed to submit a meet and confer declaration.

Cottage denies being served an interrogatory on February 13, 2024, but states that on March 7, 2024, Griggs served a set of special interrogatories on Cottage Health with a signature date of February 8, 2022. (Clinkenbeard Decl., ¶ 2 & Exh. A.) Cottage replied with objections on March 20, 2024, based on untimeliness because, at that time, trial was scheduled to commence on April 4, 2024. (Clinkenbeard Decl., ¶ 2 & Exh. B.)

Code of Civil Procedure, section 2030.010 provides, “(a) Any party may obtain discovery within the scope delimited by Chapter 2 (commencing with Section 2017.010), and subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by propounding to any other party to the action written interrogatories to be answered under oath. (b) An interrogatory may relate to whether another party is making a certain contention, or to the facts, witnesses, and writings on which a contention is based. An interrogatory is not objectionable because an answer to it involves an opinion or contention that relates to fact or the application of law to fact, or would be based on information obtained or legal theories developed in anticipation of litigation or in preparation for trial.”

A party may respond to interrogatories, in writing and under oath, by (1) providing an answer containing the information sought, (2) exercising the option to produce writings, or (3) by objecting to the particular interrogatory. (Code Civ. Proc., section 2030.210 subd. (a).)

Cottage responded by asserting proper objections. Griggs presents no argument as to why the objections are invalid.

A motion to compel further responses to interrogatories “shall be accompanied by a meet and confer declaration.” (Code Civ. Proc., § 2030.300, subd. (b)(1).) “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., § 2016.040.)

Griggs did not file a meet and confer declaration, and it does not appear that she made any effort to informally resolve any issues with respect to any of the interrogatories.

To the extent that Griggs is seeking a further response to Cottage’s March 20, 2024, objections, the motion is time-barred under Code of Civil Procedure section 2030.300, subdivision (c). That section provides: “Unless notice of this motion [to compel further responses to interrogatories] is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories.” The deadline for Griggs to seek a further response was Monday, May 6, 2024. The present motion, as noted above, was filed on July 9, 2024.

The motion to compel a further response to the unspecified interrogatory will be denied.

To the extent that Griggs is requesting other things, such as explanations from the court regarding what a clerk allegedly said or to dismiss her classification as a vexatious litigant, those requests are not properly brought, nor do they have any merit, and they will be denied.