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DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

Case Number: 20STCP01449    Hearing Date: December 23, 2020    Dept: 56














      CASE NO.: 20STCP01449




Date:  December 23, 2020

Time: 8:30 a.m.

Dept. 56


MOVING PARTY: Plaintiff Charles Davenport


RESPONDING PARTY: Defendant Windsor Westlake Healthcare, LLC (“WWH”)


            The Court has considered the moving, opposition, and reply papers.



This is an action in which Plaintiff alleges that Defendants committed elder abuse, alleging causes of action for: (1) elder abuse; and (2) negligent hiring and supervision.  


Plaintiff filed a motion (the “Motion”) for an order compelling further deposition of the Person Most Knowledgeable (“PMK”) of WWH to take place within 10 days of the hearing on a date selected by Plaintiff’s counsel as well as monetary sanctions against WWH and its attorneys of record, jointly and severally, in the amount of $4,860.00.  The Motion is based on the failure of WWH to produce documents responsive to Request for Production (“RFP”) numbers 1-2, 4, 10-11, 14, and 18[1] as requested in its notice of deposition[2], as well as WWH’s failure to collaboratively schedule the further deposition of the PMK of WWH. 


In the Motion, Plaintiff advances the following arguments: (1) WWH has no legitimate grounds for its failure to produce a deponent for its properly noticed deposition; (2) WWH has the burden of substantiating its failure to produce documents at its lawfully noticed deposition; (3) the Court has authority to compel the PMK of WWH to appear for deposition; and (4) the imposition of sanctions is warranted.


In opposition to the Motion, WWH advances the following arguments: (1) several Code of Civil Procedure sections under which Plaintiff brings the Motion are inapplicable; (2) the documents requested are privileged; and (3) Plaintiff’s requested sanctions lack substantial justification.





            The meet and confer requirement has been met.



            The Court OVERRULES all of WWH’s evidentiary objections to the evidence in support of the Motion.



            In California, discovery statutes must be construed liberally in favor of disclosure unless the request is clearly improper (Williams v. Superior Court (2017) 3 Cal.5th 531, 541.) Consequently, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action. (Id.) Every party to an action may take depositions as a matter of right. (Greyhound v. Superior Court (1961) 56 Cal.2d 355, 388.)  Any party may obtain discovery by taking in California the oral deposition of any person, including any party to the action.  (Code Civ. Proc. § 2025.010.)  Under Code Civ. Proc. § 2025.450 where a deponent fails to attend to a deposition and produce documents, an opposing party can ask the court to order the deponent’s attendance and testimony at a deposition, as well the production of the documents specified in the deposition notice.  The motion must include: (1) facts showing good cause justifying the production of documents; and (2) where a deponent fails to attend the deposition and produce the documents, a declaration must accompany the motion indicating that the party seeking the order to compel contacted the deponent to inquire about the deponent’s nonappearance.  (Code Civ. Proc. § 2025.450(b)(1)-(2).)  Objections to a deposition notice must be served at least three calendar days prior to the date of a scheduled deposition. (Code Civ. Proc. § 2025.410(a).)  A party who seeks to resist a deposition has the burden of showing good cause to deny the party a right to seek a deposition for the production of documents.  (Southern California Edison Co. v. Superior Court (1972) 7 Cal.3d 832, 843.) 


Issue No.1: Inapplicability of Several Code Sections

            WWH contends that several of the California Code of Civil Procedure sections cited in Plaintiff’s notice of motion are inapplicable to the procedural posture of the case.  Plaintiff’s motion is brought under Code Civ. Proc. §§ 2023.010, 2023.030, 2025.250, 2025.410, 2025.420, 2025.450, and 2025.480.  WWH specifically asserts that Code Civ. Proc. §§ 2025.410 and 2025.450 do not provide Plaintiff with grounds for relief.


            Code Civ. Proc. § 2023.010 indicates various grounds that are misuses of the discovery process such as failing to respond or submit to an authorized method of discovery.  Code Civ. Proc. § 2023.030 explains conduct that is subject to monetary, issue, or evidentiary sanctions.  Code Civ. Proc. § 2025.250 concerns the location of a deposition.  Code Civ. Proc. § 2025.410 concerns timely objections to a notice of deposition.  Code Civ. Proc. § 2025.420 concerns protective orders in the context of a deposition.  Code Civ. Proc. § 2025.480(a) states that if a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.  The motion shall be made no later than 60 days after the completion of the record of deposition and shall be accompanied by a meet and confer declaration.  (Code Civ. Proc. § 2025.480(b).) 

             The Court finds that while Code Civ. Proc. §§ 2025.410 and 2025.450 are inapplicable to the relief Plaintiff seeks, Plaintiff has grounds to seek to compel a further deposition under Code Civ. Proc. § 2025.480.  Thus, the Court will assess the merits of the Motion. 


Issue No.2: Evid. Code § 1157

            WWH contends that Evid. Code § 1157 protects many of the documents at issue from being compelled.  Specifically, WWH asserts that Evid. Code § 1157 protects the documents requested in RFP numbers 1-2, 4, 10, 11, and 14.


            Evid. Code § 1157 gives a blanket exclusion from discovery to proceedings and records of committees of hospital medical staffs concerned with evaluation and improvement of the quality of care in the hospital.  (Roseville Community Hospital v. Superior Court (1977) 70 Cal.App.3d 809, 813.)  The section contains an express exception allowing discovery as to statements made by any person in attendance at a committee meeting who is a party to an action or proceeding the subject matter of which was reviewed at such meeting, and also as to any person requesting hospital staff privileges.  (Id.)   The purpose of the exception in Evid. Code § 1157 is to allow discovery in connection with staff discharge or staff exclusion matters.  (Id. at 815.)  Evid. Code § 1157(a) shields the proceedings and records of a peer review body having the responsibility of evaluation and improvement of the quality of care from disclosure.  According to Bus. & Prof. Code § 805, a peer review body is defined as a medical or professional staff of any health care facility or clinic.  A skilled nursing facility is a type of health care facility under California Health and Safety Code, Section 1250(c)(1).


Evid. Code § 1157 specifies that the records of a medical staff committee are immune from discovery when the committee has the responsibility of evaluation and improvement of the quality of care rendered in the hospital.  (Matchett v. Superior Court (1974) 40 Cal.App.3d 623, 627.)  The burden of establishing entitlement to nondisclosure rests with the party resisting the discovery, not the party seeking it.  (Id.)  Evid. Code § 1157 was enacted upon the theory that external access to peer investigations conducted by staff committees stifles candor and inhibits objectivity.  (Id. at 629.)  The party resisting discovery under Evid. Code § 1157 must sufficiently establish that an answer cannot be given without divulging the proceedings or records of the medical staff committees to which Evid. Code § 1157 refers.  (Mt. Diablo Hospital Medical Center v. Superior Court (1984) 158 Cal.App.3d 344, 347-348.) 



The Court finds that as to RFP numbers 4, 10, 11, and 14, WWH has met its burden through the declarations provided in support of the opposition in showing that such documents are: (1) connected to the Quality Assurance Committee at WWH; and (2) are reviewed for the purpose of improving the quality of care rendered at WWH.  Such documents are immune from discovery under Evid. Code § 1157. 


Therefore, the Court DENIES Plaintiff’s request to compel WWH to produce the documents at issue in RFP numbers 4, 10-11, and 14. 


As to RFP numbers 1-2 and 18, however, WWH has not met its burden in establishing that such requested documents come within the scope of Evid. Code § 1157 as required by Mt. Diablo.   As to RFP number 2, WWH provides no evidence[3] that nurse staffing information is used to improve the quality of care at WWH. 


The Court will now assess whether the RFPs not subject to Evid. Code § 1157 are protected by Civ. Code § 3295 as argued by WWH.


Issue No.2: Civ. Code § 3295

            Civ. Code § 3295(c) provides that no pretrial discovery shall be permitted as to: (1) the profits the defendant has gained by virtue of the wrongful course of conduct of the nature and type shown by the evidence; or (2) the financial condition of the defendant, unless the court enters an order permitting such discovery.  A court may, however, enter an order at any time permitting discovery of otherwise prohibited financial information if the plaintiff has established there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294.  (Civ. Code § 3295(c).)  The financial status of the defendant is discoverable where such information goes to the heart of the cause of action itself.  (GT, Inc. v. Superior Court (1984) 151 Cal.App.3d 748, 754.) 


            The Court finds that only RFP number 11 implicates WWH’s financial condition, as it seeks documents as to WWH’s budget.  This RFP is, however, shielded from disclosure under Evid. Code § 1157 as explained above.  In any event, the Court finds that WWH’s financial information is not discoverable under GT because the crux of the complaint is elder abuse and negligence. RFP numbers 1-2 and 18 do not implicate WWH’s financial condition or profits.


            Therefore, the Court finds that Civ. Code § 3295 does not prevent the production of the documents requested in RFP numbers 1-2 and 18 from being disclosed.  The Court will now address WWH’s argument that RFP numbers 1-2 and 18 are protected by a right to privacy.


Issue No.3: The Right to Privacy

            WWH contends that it has a right to privacy under the United States Constitution.  Initially, the Court finds that WWH’s citation to Roberts v. Gulf Oil (1983) 147 Cal.App.3d 770 is inapposite on this point.  Also, where a state law cause of action has been asserted, a constitutional right of privacy is examined under state law.  (Littlefield v. NutriBullet, L.L.C. (C.D. Cal. 2018) 2018 WL 5264148 at *6.) 


            Corporations do not have a right to privacy protected by the California Constitution.  (SCC Acquisitions, Inc. v. Superior Court (2015) 243 Cal.App.4th 741, 755.)  The California Constitution protects the privacy rights of people only.  (Id.) 


            The Court finds that the documents requested in RFP numbers 1-2 and 18 are relevant to Plaintiff’s proving his claims.  Plaintiff has provided sufficient evidence showing that the documents sought in RFP numbers 1-2 and 18 are relevant to proving his claims, and Plaintiff has shown good cause for such disclosure.  Under SCC, WWH has no right to privacy in the documents requested in RFP numbers 1-2 and 18.


            Therefore, the Court GRANTS Plaintiff’s request to compel WWH to produce documents at issue in RFP numbers 1-2 and 18. 


Issue No.4: Monetary Sanctions

            Given that Plaintiff did not succeed in compelling production of all documents at issue in the Motion, the Court finds that WWH did not oppose the Motion without substantial justification.  The Court therefore DENIES Plaintiff’s request to impose monetary sanctions against WWH and its counsel of record under Code Civ. Proc. §§ 2023.010, 2023.030, and 2025.480.


            The Motion therefore is GRANTED IN PART.  The Court: (1) denies Plaintiff’s request for WWH to produce all documents responsive to RFP numbers 4, 10, 11, and 14; and (2) grants Plaintiff’s request for WWH to produce all documents responsive to RFP numbers 1-2 and 18.  The further deposition of the PMK of WWH is to take place within 30 calendar days of the date of this order.   


Moving party is ordered to give notice of this ruling.


In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org stating your intention to appear in person.  The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.  This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.


Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.


         Dated this 23rd day of December 2020





Hon. Holly J. Fujie

Judge of the Superior Court


[1] The Motion concedes that the deposition of the PMK of WWH occurred on August 28, 2020; however, Plaintiff asserts that WWH failed to produce all documents responsive to RFP numbers 1-2, 4, 10-11, 14, and 18. 

[2] The notice of deposition is not provided with either the moving or reply papers; however, the notice of deposition is attached as Exhibit 2 to the declaration of Jodie C. Feusner in support of the opposition and such deposition notice is before the Court.

[3] In law and motion practice, factual evidence is provided to the Court by way of declarations.  (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224.) 

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