Torres v. Health

LUIS M. TORRES et al., Plaintiffs and Appellants, v. SCRIPPS HEALTH, Defendant and Respondent.

D057583

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

DATED: January 3, 2012

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 37-2008-00099564-CU-OE-SC)

APPEAL from a judgment of the Superior Court of San Diego County, William S. Cannon, Judge. Affirmed.

Plaintiffs and appellants Luis Torres, Martel Mesina, Burdella Thomas, David McElroy, Sheryl Greenaway, Carol Vrooman, and Milagros Fontillas appeal from a summary judgment entered in favor of Scripps Health (Scripps) after the trial court denied their motion for relief from its order that Scripps's discovery requests for admission be deemed admitted, and granted summary judgment based on those admissions. Plaintiffs contend the court erred by: (1) granting Scripps's ex parteapplication to continue the trial and pretrial deadlines so as to permit it to file a motion for summary judgment; (2) denying plaintiffs' motion under Code of Civil Procedure¹sections 473 and 2033 for relief from the discovery admissions; and (3) granting Scripps's motion for summary judgment. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs are current or former employees of Scripps Mercy Hospital Chula Vista (hospital) employed in hospital's emergency department. As of December 31, 2004, hospital had a policy entitled "Rest and Meal Periods" that stated in part: "Employees are provided with rest periods at the rate of 10 minutes net rest time for each four hours of work or major fraction thereof. Rest periods should be scheduled as close to the middle of the four (4) hour work period as is appropriate to departmental operations . . . ." The policy further provides: "Employees must obtain prior authorization from their supervisor if they believe they are unable to take their rest period in any workday. Additionally, employees must promptly report to their supervisor, no later than the end of their shift, any occasion on which they are unable to take their rest periods. Failure to obtain pre-authorization for missed rest periods may result in corrective action up to and including termination."

Plaintiffs' Lawsuit; Scripps's Discovery and Grant of Discovery Extensions

In December 2008, plaintiffs filed a lawsuit against Scripps alleging it failed to provide rest breaks under California labor laws and engaged in unfair competition underthe Unfair Competition Law (UCL; Bus. & Prof. Code, § 17200 et seq.) In August 2009, Scripps propounded four sets of discovery to each plaintiff, including six requests for admissions. These requests asked plaintiffs to admit that at all times during the period of December 31, 2004, through the present:

(1) "YOU were aware of SCRIPPS HEALTH's policy authorizing and permitting YOU to take ten-minute rest breaks";

(2) SCRIPPS HEALTH "authorized and permitted YOU to a ten-minute rest break for every four hours of work or a major fraction thereof";

(3) "YOU were aware of SCRIPPS HEALTH's rest break policy, which states that non-exempt SCRIPPS HEALTH employees must promptly report to their supervisor, no later than the end of their shift, any occasion on which they are unable to take their rest periods";

(4) "YOU were aware of SCRIPPS HEALTH's rest break policy, which states that all non-exempt SCRIPPS HEALTH employees must obtain prior authorization from their supervisor if they believe they are unable to take their rest periods in any workday"; and

(5) "YOU were never denied permission to take a rest break if you asked to take a rest break." Plaintiffs were also asked to admit: (6) "SCRIPPS HEALTH pays YOU one extra hour of pay at your regular hourly rate when YOU report that YOU were unable to take a rest break during your shift."

Thereafter, the parties engaged in settlement discussions. Scripps's and plaintiffs' counsel agreed to extend the deadline for all outstanding discovery several times, so that eventually, responses to that discovery were due on November 13, 2009.

Scripps Obtains an Order to Compel Discovery Responses, Deem Plaintiffs Admissions Admitted, and for Sanctions

When plaintiffs did not respond to the discovery by November 13, 2009, Scripps served objections and communicated with plaintiffs' counsel, Deborah Brady-Davis, concerning the matter. On November 30, 2009, having received no discovery responses, Scripps's counsel sent a meet and confer letter to Brady-Davis asking her to provide her clients' responses to the written discovery without objection by December 4, 2009. As of December 18, 2009, plaintiffs had not served their responses. Accordingly, on that day, Scripps filed a motion to compel and for sanctions, which plaintiffs did not oppose.

On January 15, 2010, the court granted Scripps's motion, ordered plaintiffs to provide verified responses without objections, and deemed Scripps's requests for admissions admitted. It ordered plaintiffs and their counsel jointly and severally to pay $1,125 in sanctions to Scripps's counsel.

The Court Vacates the Trial Date and Scripps Files a Motion for Summary Judgment/Summary Adjudication

On January 25, 2010, Scripps applied ex parte to continue the trial date and pre-trial deadlines. It sought a 90-day continuance to bring a motion for summary judgment. Following a short hearing unattended by plaintiffs' counsel, the court ordered the trial date stricken by the filing of Scripps's motion. Scripps served notice of entry of the minute order on the same day.

Thereafter, Scripps moved for summary judgment or alternatively summary adjudication of issues on grounds all of the undisputed material facts were conclusivelyestablished by plaintiffs' discovery admissions. In particular, Scripps argued the admissions established that "Scripps authorized and permitted" plaintiffs to take ten-minute rest breaks for every four hours of work or major fraction thereof during the relevant time period; plaintiffs were aware of the contents of Scripps's written policy authorizing and permitting their ten-minute rest breaks during the entire time period; plaintiffs knew they were required to promptly report to a supervisor if they ever felt they were unable to take their authorized rest breaks; and Scripps never denied any plaintiffs' request to take a rest break. Scripps argued plaintiffs' UCL claims fell with the underlying rest break claims.

Plaintiffs Move for Relief from the Discovery and Sanctions Order

In March 2010, plaintiffs moved under section 473 or alternatively section 2033.280 et seq. for relief from the January 15, 2010 sanctions order and the order deeming Scripps's discovery requests admitted, further asking for "any other relief that the court may consider in law or equity." In a supporting declaration, plaintiffs' counsel Brady-Davis recounted how, after agreeing to the extension of time for discovery and rejecting Scripps's settlement offer, she "became severely ill and was unable to work on a consistent basis." According to Brady-Davis, during the period from late October to mid-November 2009, she experienced extreme stomach and lower abdominal pains with significantly elevated blood pressure, and though she sought medical care while attempting to work, she did not tend to her physical condition as she should have. During that period, Brady-Davis had a few telephone conversations with defense counsel, Jeffrey Ames, and told him she was and had been ill. Brady-Davis stated that after she receiveda November 30, 2009 letter demanding responses to the outstanding discovery by December 4, 2009, she had her sister call Ames's office and request a further continuance to December 18, 2009, due to her illness.

Brady-Davis stated she unrealistically believed she would meet the December 18, 2009 deadline, but was unable to do so and realized she should have sought ex parte a 90-day continuance of all the trial dates. She averred that after Scripps filed its motion to compel, her plan was to respond to the discovery and avert the consequences of the motion, but because she was not fully functioning, she did not properly note the date of Scripps's motion or remember that it had served requests for admissions. Consequently, on the date of Scripps's motion, she was at a trial call in a different case. She stated, "Had I been thinking clearly and realized that this was also the date of the motion to compel, I would have at least called to notify the court of this conflict." Finally, Brady-Davis averred she was hospitalized on February 21, 2010, for internal bleeding and blood pressure so elevated that she was at risk for a heart attack or stroke, and was not released until February 25, 2010.

As for Scripps's request to continue the trial and pretrial dates, Brady-Davis stated in her declaration that, during their telephone conversation concerning the matter, Scripps's counsel had only asked to continue the trial date; he never told her he would also be seeking to move other pre-trial dates, including the deadline by which to move for summary judgment. According to Brady-Davis, she would have opposed the request had she known this, and agreed only because she knew the parties were past the filing date for such a motion. She attached defense counsel's letter notifying her that Scripps wasappearing ex parte "to request a 90-day trial continuance," which concludes: "You indicated that you do not oppose a request for a trial continuance unless such a continuance puts the trial date in June 2010." Brady-Davis asked for relief under section 473 under either the discretionary or mandatory portions of that statute, acknowledging she should have had someone help her but her...