Judge: Anne Richardson, Case: 22STCV31730, Date: 2023-07-21 Tentative Ruling

Case Number: 22STCV31730    Hearing Date: July 21, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Pleadings

Plaintiff Nunilon Ledesma, in and through her Successor-in-Interest Edwin Ledesma, Edwin Ledesma, and Cynthia Villasis (Plaintiffs) sue Defendants AG Arcadia, LLC, dba Huntington Drive Health and Rehabilitation Center, and Cambridge Healthcare Services, LLC (Defendants) pursuant to a January 17, 2023 Second Amended Complaint (SAC) alleging claims of (1) Elder Abuse, (2) Negligence, (3) Wrongful Death, and (4) Violation of Health and Safety Code § 1430(B).

The claims arise from allegations that while under the care of Defendants, Defendants and their employees failed to exercise the degree of care that reasonably skilled nursing facility owners, operators, officers, directors, and employees in similar positions would have exercised with regard to Nunilon Ledesma—an individual who was 65 years old at all relevant times—thus causing injuries to Nunilon Ledesma, including but not limited to unnecessarily suffering from Covid-19 and being quarantined in Defendants’ skilled nursing facility’s Covid “Red Zone” for a prohibited amount of time of over twenty days, during which time Defendants repeatedly failed to provide Nunilon Ledesma with her anti-seizure medication—thus causing Nunilon Ledesma to suffer numerous seizures—and allowed Nunilon Ledesma to aspirate while she was receiving nutrition and medication through a gastrostomy tube and a nasogastric tube, leading to her death on January 12, 2021, as well as a loss of personal dignity, shame and humiliation, extreme and unnecessary pain and suffering, degradation, anguish, and emotional trauma prior to death.

The SAC pleads Defendants as alter egos and joint enterprises of one another, with Huntington Drive Health and Rehabilitation Center being a dba for AG Arcadia, LLC and Does 1-50 (collectively, the Facility), and with Cambridge Healthcare Services, LLC and Does 51 to 100 being the pleaded owners, operators, parent company, and/or management company (collectively, the Management Defendants).

Motions Before the Court

On January 9, 2023, Plaintiffs served Special Interrogatories, Set One, on AG Arcadia.

On February 24, 2023, AG Arcadia served responses to Special Interrogatories, Set One.

On March 27, 2023, Plaintiffs sent a meet and confer letter to AG Arcadia, including a request for further responses to Special Interrogatories Nos. 62-63.

On June 19, 2023, AG Arcadia provided a series of further responses, except to Special Interrogatories Nos. 62-63.

On June 26, 2023, Plaintiffs moved to compel further responses to Special Interrogatories Nos. 62-63, which request that AG Arcadia:

“… IDENTIFY each and every person who shared a room with the PLAINTIFF during [her] ADMISSION at the FACILITY”; and

“… IDENTIFY the RESPONSIBLE PARTY of each and every person who shared a room with the PLAINTIFF during [her] ADMISSION.”

The hearing for this motion was set for July 21, 2023.

On June 27, 2023, AG Arcadia moved for a protective order against Special Interrogatories Nos. 62-63. The hearing for this motion was set for September 18, 2023.

On July 7, 2023, Plaintiffs and AG Arcadia filed a stipulation and proposed order to advance the hearing on the motion for protective order to July 21, 2023.

On July 10, 2023, the Court entered the stipulation and the order related thereto.

That same day, AG Arcadia opposed the motion to compel further responses to Special Interrogatories Nos. 62-63.

That same day, Plaintiffs opposed AG Arcadia’s motion for protective order.

On July 14, 2023, AG Arcadia replied to Plaintiffs’ July 10, 2023 opposition.

That same day, Plaintiffs replied to AG Arcadia’s July 10, 2023 opposition.

Both motions are now before the Court.

Request for Judicial Notice

The Court TAKES Judicial Notice of Exhibit B attached to the Hassell Declaration in AG Arcadia’s motion for protective order, i.e., California Department of Public Health “Preparing for Coronavirus Disease 2019 (COVID-19) in California Skilled Nursing Facilities” dated April 15, 2020. (See Protective Mot., Hassell Decl., Ex. B, p. 2; see also Evid. Code., §§ 452, subd. (c), (h), 453, subds. (a)-(b).)

However, the Court DECLINES to take judicial notice of the remaining requests by AG Arcadia because the Court finds insufficient reasons to take notice of those rulings, which, though involving similar matters as those before the Court now, do not involve this action and are not dispositive of the Court’s determinations here. (Evid. Code., § 453, subd. (b); see Protective Mot., RJN, pp. 2-3 [seeking notice of Protective Mot., Hassell Decl., Exs. G-Q].)

Motion for Protective Order

Legal Standard

A motion for a protective order is used to ask the court to modify, prohibit, or limit discovery procedures to protect a party from an excessive or unnecessary burden, expense, or intrusion. (See Code Civ. Proc., §§ 2017.020, subd. (a) [burden, expense, or intrusiveness of the discovery clearly outweighs the likelihood that information sought will lead to the discovery of admissible evidence], 2019.030, subds. (a)(1)-(2), (b) [discovery obtainable from other source, cumulative or duplicative, or discovery method is unduly burdensome or expensive]; see also Code Civ. Proc., §§ 1987.1, subd. (a) [same or similar standards for subpoenas], 2025.420 [same or similar standards for depositions], 2025.460, subd. (a) [same or similar standards for depositions], 2025.470 [same or similar standards for depositions], 2030.090 [same or similar standards for interrogatories], 2031.060 [same or similar standards for demands to produce], 2032.510, subds. (d), (e) [same or similar standards for medical examinations], 2033.080 [same or similar standards for admission requests], 2034.250 [same or similar standards for expert-witness discovery], 2034.420 [same or similar standards for expert-witness discovery]; see, e.g., Liberty Mut. Ins. v. Superior Court (1992) 10 Cal.App.4th 1282, 1285 [defendant sought protective order to prohibit apex deposition on grounds of annoyance and embarrassment]; Stony Brook I Homeowners Ass’n v. Superior Court (2000) 84 Cal.App.4th 691, 693 [defendant made motion for protective order to prevent plaintiff’s inquiry into how much defense work defense’s expert had performed in personal-injury actions].)

Good cause must normally be shown to prevail on a motion for protective order. (See Code Civ. Proc., §§ 2025.420, subd. (b) [oral deposition] 2028.070 [written deposition], 2030.290, subd. (b) [interrogatories], 2031.060, subd. (b) [demands to produce], 2033.080, subd. (b) [admission requests], 2034.250, subd. (b) [expert-witness discovery].)

Motion for Protective Order: GRANTED.

AG Arcadia seeks a protective order against Special Interrogatories, Nos. 62 and 63. (See Protective Mot. generally.) The interrogatories request that AG Arcadia:

“… IDENTIFY each and every person who shared a room with the PLAINTIFF during [her] ADMISSION at the FACILITY”; and

“… IDENTIFY the RESPONSIBLE PARTY of each and every person who shared a room with the PLAINTIFF during [her] ADMISSION.”

(Protective Mot., Hassell Decl., Ex. C.)

AG Arcadia argues that such relief is merited because: “Pursuant to HIPAA and California law, the identity and contact information of its patients and responsible parties constitutes protected health information and therefore cannot be disclosed”; “Plaintiff does not have a compelling need for this information that outweighs the patient privacy rights of elderly, infirm individuals”; “[t]he information sought by Plaintiff is not directly relevant”; “[t]he residents and their responsible parties are not percipient witnesses[,] and they are not expert witnesses and therefore cannot provide any relevant opinion as to whether Defendant provided adequate care or supervision to Plaintiff, or had sufficient staff, or adequate funding”; “there are less intrusive means for obtaining the discovery sought by Plaintiff”; “Plaintiff’s proposed [opt-in] compromise is unjustified, is still an intrusion of privacy rights and allowing the discovery will inevitably result in abuse.” (Protective Mot., p. 11; see also Protective Mot., pp. 11-21.)

In opposition, Plaintiffs argue that the discovery propounded is: (1) reasonably likely to lead to the discovery of admissible evidence because the discovery will show Defendants’ pattern and knowing practice of improperly understaffing to cut costs, as well as the failure to remedy this shortcoming; (2) justified by a compelling public interest to ascertain the truth and prevent systemic abuse in healthcare facilities, which outweighs the privacy interests of the Terracina residents and the responsible parties; and (3) not overly broad, unduly burdensome, or oppressive. (Protective Opp’n, pp. 2-13.)

In reply, AG Arcadia argues that (1) the interrogatories are not relevant and are overbroad, with no compelling need overcoming the rights to privacy at issue, (2) the interrogatories violates the right to privacy, HIPPA, and the CMIA, (3) the proposed opt-in letter is inconsistent with the discovery at issue and would amount to a breach of privacy, and (4) the opposition fails to address the potential for abuse. (Reply, pp. 6-15.)

The Court finds in favor of AG Arcadia.

The argument on which the Court relies is the argument that there are far less intrusive means of obtaining the discovery sought by Plaintiffs. It is unclear how discovery secured from patients or persons in charge of patients that shared facility space with Nunilon Ledesma will be more useful to Plaintiffs in establishing pattern and practice evidence over discovery secured directly from Defendants. Regardless of how Plaintiffs frame their interrogatories, requests 62 and 63 seek highly intrusive information by seeking the identity of Defendants’ patients or those in charge of the patients. The Court must be convinced that this form of discovery is justified. Plaintiffs’ briefing fails to show such justification.

The cases cited by Plaintiffs in their Opposition do not justify the invasion here – in those cases, either the party had already complained about the defendant or the defendant’s product, or was an employee on whose behalf the plaintiff was seeking to recover civil penalties. (Compare Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 372 [“Revealing names, addresses and contact information on persons who have already complained about their Pioneer DVD players would not be particularly sensitive or intrusive.”]; Belaire v. Superior Court (2007) 149 Cal.App.4th 554, 553; see also Bartold v. Glendale Federal Bank (2000) 81 Cal.App.4th 816, 820-21 [contact information regarding the identity of potential class members is generally discoverable].) If Plaintiff had propounded this discovery only on such residents who had in fact complained, or if this were a class or representative action, the analogy would be more apt.

Moreover, the Court rejects the analogy that Plaintiff is only seeking witness contact information. As phrased, the request are much broader than seeking the contact information for witnesses to the alleged incidents in the complaint. “Every person who shared a room” with Plaintiff during the time of Plaintiff’s admission could include people who shared a room with her months or years previously, for a week, a month or a day. Had Plaintiff limited her request to the names and contact details for witnesses to specific relevant incidents or time periods, as was the case in Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1246, this Court’s ruling would likely be different.

Accordingly, the motion for protective order is GRANTED.

Motion to Compel Further Interrogatories

Legal Standard

A motion to compel a further response is used when a party gives unsatisfactory answers or makes untenable objections to interrogatories, demands to produce, or requests for admission. (See Code Civ. Proc., §§ 2030.300, subd. (a), 2031.310, subd. (a), 2033.290, subd. (a); Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403 [interrogatories and demands to produce].) To compel a further response to interrogatories, the movant can show that: (1) the responding party’s answer to a particular interrogatory is evasive or incomplete (Code Civ. Proc., § 2030.300, subd. (a)(1)); (2) the responding party’s exercise of the option to produce documents in response to an interrogatory was unwarranted or the required specification of those documents was inadequate (Code Civ. Proc., § 2030.300, subd. (a)(2)); and (3) the responding party’s objection to an interrogatory is without merit or too general (Code Civ. Proc., § 2030.300, subd. (a)(3); see, e.g., Williams v. Superior Court (2017) 3 Cal.5th 531, 550 [defendant’s argument that plaintiff was required to establish good cause or prove merits of underlying claim before propounding interrogatories without merit].)

Order Compelling Further Interrogatory Responses: DENIED.

Plaintiffs’ motion seeks to compel further responses to Special Interrogatories, Nos. 62 and 63. (See Interrogatories Mot., p. 15 [Conclusion].)

In light of the Court’s ruling on the motion for protective order, this motion is DENIED.

Sanctions: DENIED.

The court must impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2030.300, subd. (d).)

Imposition of sanctions would be unjust here where the motion was denied and in light of the ruling on the motion for protective order. 

Conclusion

Defendant AG Arcadia, LLC’s Motion for Protective Order is GRANTED.

Plaintiff Nunilon Ledesma, in and through her Successor-in-Interest Edwin Ledesma, Edwin Ledesma, and Cynthia Villasis’s Motion to Compel Further Responses to Special Interrogatories, Set One is DENIED.

The corresponding Request for Sanctions is DENIED.