Judge: Alison Mackenzie, Case: 22STCV01148, Date: 2023-12-18 Tentative Ruling

Case Number: 22STCV01148    Hearing Date: December 18, 2023    Dept: 55

NATURE OF PROCEEDINGS:  MOTION of Plaintiff TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE, AGAINST COLLEGE VISTA POST-ACUTE dba COLLEGE VISTA, LLC; REQUEST FOR MONETARY SANCTIONS IN THE SUM OF $5,505.00 AGAINST DEFENDANT COLLEGE VISTA POST-ACUTE dba COLLEGE VISTA, LLC AND ITS ATTORNEYS OF RECORD GIOV ANNIELLO LAW GROUP.

The motion is granted.

On or before 1/18/24, Defendant COLLEGE VISTA POST-ACUTE shall serve further responses, and produce documents, without objections, and in full compliance with the California Discovery Act, CCP §2016.010 et seq., as to the requests for documents identified in moving party’s separate statement filed with the motion.

On or before that same date, Defendant COLLEGE VISTA POST-ACUTE and GIOV ANNIELLO LAW GROUP jointly and severally shall pay discovery sanctions in the sum of $5,505.00 to Plaintiff, the Court finding the absence of substantial justification.    E.g., CCP   § 2023.030.

On 1/11/22, MARINA SAFARIAN (“Plaintiff”), as successor-in-interest to ARTHUR SAFARIAN, an elder resident at a skilled nursing facility, filed a Complaint against COLLEGE VISTA POST-ACUTE, et al. (“defendants”).  On 8/1/23, Plaintiff filed a First Amended Complaint, alleging elder abuse consisting of reckless neglect at a skilled nursing facility, including largely ignoring the care plan and failing to provide proper wound care, leading to deterioration of his medical conditions and serious pain and suffering.

Plaintiff filed a motion to compel Defendant COLLEGE VISTA POST-ACUTE to serve further document responses and production, as to request numbers 18-37, 50, 51, 53, and 86, and for sanctions. Defendant opposes the motion and seeks sanctions against Plaintiff.

The disputed document requests seek Defendant’s policies and procedures regarding  Defendant’s handling of treatments, medicines, infections, diabetes, resident readmissions, resident transfers, medical records, care plans, monitoring, records, condition changes, communications, wound management, billing, pain management, clinical procedures, administrative procedures and retention procedures. Defendant does not dispute that Plaintiff has good cause to seek production of these relevant documents. While Defendant claims that Plaintiff will use the documents sought in this case for future litigation, the fact that a party seeking relevant discovery might have an unauthorized motive or may “gain an incidental additional benefit from information it is legally entitled to receive is not grounds for denying it access to that information ….”.  Home Ins. Co. v. Sup. Ct. (1996) 46 Cal. App. 4th 1286, 1294.

Defendant nevertheless argues that it should not have to produce the documents unless Plaintiff signs Defendant’s proposed stipulated protective order. Defendant’s responses to the discovery requests state that the documents requested by Plaintiff require a protective order before production because they seek confidential or proprietary information. Parties may choose to enter into stipulated protective orders permitting limited use of discovered information deemed to contain confidential or proprietary information, to avoid the need for court rulings but where parties are unable to stipulate, and must resort to the courts, parties seeking protective orders must filed a notice motion and have the burden to show good cause.  Nativi v. Deutsche Bank Nat’l Trust Co. (2014) 223 Cal.App.4th 261, 317-18; Titmas v. Sup. Ct. (2001) 87 Cal. App. 4th 738, 743.  A case cited by defense counsel distinguishably did not address any inherent power of a court to issue a protective order without a noticed motion (opp., 5:28).  See Northpoint Homeowners Assn. v. Superior Court (1979) 95 Cal. App. 3d 241, 245 (“they authorized the making of an inspection and subsurvey of the oil well for the purpose of gathering information, not for the purpose of preserving the oil well as evidence.”).  Moreover, that opinion predated the current Discovery Act, as did the opinion it relied upon.  Discovery-related opinions decided before the current Civil Discovery Act of 1986 may have been superseded.  Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1106.

Also, the party claiming a qualified privilege, such as confidential commercial information, has the burden of showing that the information falls within the privilege.   Lipton v. Sup. Ct.  (1996) 48 Cal. App. 4th 1599, 1618-19 (addressing reinsurance discovery that may involve confidential commercial information about insurer financial condition).

The Court cannot force a stipulated protective order on parties, as it is voluntary by definition.  There is no motion for protective order before the Court. And Defendant fails to show a right to protection from disclosure of the requested documents because opposing counsel’s declaration, filed 11/14/23, does not address proprietary or confidential documents, and there is no other proof filed in opposition.

Moreover, the Court agrees with Plaintiff that the controlling regulations (22 CFR §§ 72523(b) and 72527) entitles Plaintiff to Defendant’s policies and procedures and Defendant has no statutory or case law to the contrary. Defendant does not attempt to defend its other objections to the discovery requests (vague, ambiguous, overbreadth, violates Copyright laws) and the Court finds no merit in those objections.   

Contrary to Defendant’s contention, the Court concludes there was no substantial justification for Defendant’s opposition to the motion and refusal to produce the documents without a protective order. Sanctions against Defendant and counsel therefore are appropriate. The Court finds that the fee billing rate and hours set forth by Plaintiff’s counsel are reasonable for this matter. Ghanooni v. Super Shuttle of Los Angeles (1993) 20 Cal.App.4^th 256, 262 (holding that monetary discovery sanctions must be reasonable in amount). Defendant’s request for sanctions against Plaintiff has no merit and is denied.