Judge: John J. Kralik, Case: 21STCV16663, Date: 2022-08-12 Tentative Ruling

Case Number: 21STCV16663    Hearing Date: August 12, 2022    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Patricia Hernandez (“Plaintiff”) alleges that she was subject to egregious elder abuse committed by Defendants Continuity Care Home Nurses, Inc. (“CCHN”) and Continuity Care Staffing Services, Inc. (“CCSS”), along with their owner and director, Defendant Maryann Sawoski.  Plaintiff alleges that CCHN and CCSS (collectively, “Continuity Care”) turned a blind eye as one of its employees, Carmen Magaña de Mendoza, repeatedly raped Plaintiff, an elderly and debilitated patient. 

The complaint, filed May 3, 2021, alleges causes of action for: (1) elder abuse by neglect, abandonment, and physical abuse; (2) financial elder abuse; (3) IIED; (4) professional negligence; (5) negligence; and (6) unlawful and fraudulent business practices.

On April 5, 2022, CCHN, CCSS, and Sawoski filed a first amended cross-complaint (“FAXC”) against Cross-Defendant Michael Hernandez for: (1) equitable indemnity; and (2) declaratory relief. 

B.     Motions on Calendar

On July 8, 2022, CCHN filed a motion to compel Michael Hernandez’s further responses to CCHN’s discovery requests and $5,075 in sanctions.  On August 1, 2022, Michael Hernandez filed an opposition brief.  On August 5, 2022, CCHN filed a reply brief.  On August 8, 2022, Michael Hernandez filed a sur-reply.

On July 8, 2022, Defendants filed a motion to compel non-party Jancy Aldana to comply with Defendants’ Deposition Subpoena for Personal Appearance and Production of Documents and Things, and sanctions in the amount of $4,200.  On August 1, 2022, Aldana filed an opposition brief.  On August 5, 2022, Defendants filed a reply brief.

DISCUSSION RE MOTION TO COMPEL MICHAEL HERNANDEZ’S FURTHER RESPONSES

A.    Single Motion for Three Sets of Discovery

In a single motion, Defendants seek Michael Hernandez’s further responses to CCHN’s Requests for Admissions, set one (“RFA”), Requests for Production of Documents, set one (“RPD”), and Special Interrogatories, set one (“SROG”).  Defendants have only paid 1 filing fee and only secured 1 reservation number for these 3 separate sets of discovery.  As such, the Court will enter to order concerning the RFA.  However, the order as to the SROG and RPD will be stayed pending Defendant’s payment of two additional filing fees for these separate sets of discovery. 

B.     Discovery Cut-off Period

CCP § 2024.020(a) states: “Except as otherwise provided in this chapter, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.” 

The jury trial is scheduled for August 15, 2022.  The motion was filed on July 8, 2022 and was scheduled/reserved for August 12, 2022.  The Court will allow the hearing on the motion to compel further responses in light of the preferential trial date and in recognition to the fact that this may have been the earliest date that Defendants were able to reserve for the hearing. 

C.     RFA

RFA No. 11 asks Michael Hernandez to admit that he received compensation for homecare he provided to Plaintiff.  Michael Hernandez objected to the RFA on the grounds that the RFA was overbroad, burdensome, oppressive/harassing, and was not limited in time frame; seeks irrelevant information; assumes facts; is vague and ambiguous as to the terms “homecare” and “compensation”; and seeks information protected by the attorney work product doctrine, trade secret protections, confidentiality nondisclosure agreements, third party privacy rights, and other privileges or immunity.  In response, Michael Hernandez stated that RFA was too vague and ambiguous for him to admit or deny. 

The RFA defined “compensation” to include, but was not limited to, “payment or reimbursement in any form transmitting or carrying monetary value such as checks, deposits, bank transfers, money orders, or trusts, given in exchange for services rendered or benefit received.”  (Mot. at Ex. 1 [RFA Requests at p. 5].)  “Homecare” was also defined to include, but was not limited to “personal hygiene assistance, assistance dressing, bathing, toilet assistance, changing linens, and other household tasks.”  (RFA Requests at p.3.) 

The terms “compensation” and “homecare” are not so vague and ambiguous such that Michael Hernandez was unable to respond.  The terms are defined in the RFA requests.  Further, the RFA simply asks if Michael Hernandez received compensation related to homecare services of Plaintiff.  This RFA is not protected by attorney-client privilege or any other type of privilege such as trade secrets or third-party privacy. Further, responding to this RFA would not be burdensome or harassing as it simply asks whether he received compensation.  Although he objected with respect to the lack of specification as to time, this in itself does not make the RFA overbroad.  Michael Hernandez could have also provided a qualified response if necessary.

The motion to compel Michael Hernandez’s further response to RFA No. 11 is granted.

The Court will award $525 (=$175/hour x 3 hours) in monetary sanctions in favor of CCHN for bringing this motion with respect to the RFAs.

D.    RPD

Defendants seek Michael Hernandez’s further responses to RPD Nos. 2-22. 

            RPD Nos. 2-3 seek all communications between Michael Hernandez and any and all agents of (2) CCHN and (3) CCSS relating to the incident. Michael Hernandez objected to the RPDs on the ground that they were overbroad, burdensome, oppressive/harassing, seek documents over a 12-year period; were vague as to “incident”; seek irrelevant information; and based on the attorney-client privilege, attorney work product doctrine, joint defense or common interest privilege, and third party’s privacy rights.  The scope of the RPDs is overbroad as they do not specify any time limitation.  Thus, discovery will be limited to May 3, 2017 to May 3, 2021 (the filing of the action).  The remaining objections raised by Michael Hernandez are overruled, as the documents sought are relevant and communications Michael Hernandez had with CCHN and CCSS are unlikely to be protected by any attorney-client privilege, work product doctrine, or privacy rights as they are not communications with counsel or seek counsel’s strategies.  The motion is granted as to RPD Nos. 2-3.

            RPD No. 4 seeks all documents relating to Michael Hernandez’s time spent caring for Plaintiff from July 2008 to November 2020.  RPD No. 5 seeks all documents memorializing services Michael Hernandez rendered to Plaintiff from July 2008 to November 2020.  Michael Hernandez objected on the same grounds as above.  Similar to the above, these documents do not include privileged material. The boilerplate objections are overruled.  The motion is granted as to RPD Nos. 4-5.  However, the Court limits discovery from May 3, 2017 to May 3, 2021.

            RPD Nos. 6-7 seek documents Michael Hernandez (6) relied upon and (7) produced in support of his lien issued in Plaintiff’s workers’ compensation case. RPD No. 12 seeks documents relating to his lien issued in Plaintiff’s workers’ compensation case.  Michael Hernandez objected on the same grounds as above.  In opposition, Michael Hernandez argues that Defendants already subpoenaed the entire file of Plaintiff’s workers’ compensation attorney, The Law Offices of Rowen, Gurvey & Win, such that he should not have to reproduce this information.  However, this is not a valid objection to these RPDs and Michael Hernandez should produce the documents that he has in compliance with the RPDs.  The motion is granted as to RPD Nos. 6-7.

            RPD Nos. 8-9 seek documents in Michael Hernandez’s possession relating to (8) homecare services and (9) home healthcare services he provided to Plaintiff from July 2008 to November 2020.  RPD Nos. 10-11 seek all documents memorializing or referring to (10) dates for which Michael Hernandez provided homecare services and (11) the services Michael Hernandez was compensated for providing to Plaintiff between July 2008 to November 2020.  RPD No. 15 seeks documents memorializing compensation he received in connection with services he provided to Plaintiff.  Michael Hernandez provided the same boilerplate objections as above.  Again, the objections are overruled as well as the claims for privilege.  The motion is granted as to RPD Nos. 8-11 and 15.  However, the Court limits discovery from May 3, 2017 to May 3, 2021.

            RPD Nos. 13-14 seek all communications between (13) Michael Hernandez and any other persons and (14) Michael Hernandez and Plaintiff, relating to services he rendered to Plaintiff.  Michael Hernandez objected on the same grounds as above.  For the same reasons discussed above, the Court grants the motion as to RPD Nos. 13-14.  However, the Court limits discovery from May 3, 2017 to May 3, 2021.

             RPD Nos. 16-17 seek documents referring to or describing (16) Michael Hernandez’s homecare obligations to Plaintiff and (17) his healthcare services obligations to Plaintiff.  Michael Hernandez objected on the same grounds as above.  The objections are overruled.  Although a time limitation for these RPDs is not provided, Michael Hernandez has been providing homecare and healthcare services to Plaintiff over the years.  It may be that his role has not changed in the past 4 years and that this information may be discovered in the earlier years when he undertook care of Plaintiff.  As such, the motion is granted as to RPD Nos. 16-17 as written.

            RPD Nos. 18-19 seek all communications which refer or relate to homecare and healthcare of Plaintiff on days for which he was absent from Plaintiff’s residence for more than (18) 10 hours and (19) 24 hours.  RPD No. 20 seeks all documents memorializing dates for which he was not present at Plaintiff’s residence for more than 24 hours.  Michael Hernandez objected to these RPDs on the same grounds as above.  The objections and claims of privilege are overruled.  The motion is granted as to RPD Nos. 18-20, but will be limited to documents from May 3, 2017 to May 3, 2021. 

            RPD Nos. 21-22 seek all videos or other recordings captured by a camera or other recording device which captures, depicts, or otherwise relates to care and services Plaintiff received from (21) CCSS or CCHN; and (22) Michael Hernandez during all times relevant to the incident.  Michael Hernandez objected to these RPDs on the same grounds as above.  The objections and claims of privilege are overruled.  The motion is granted as to RPD Nos. 21-22, but will be limited to documents from May 3, 2017 to May 3, 2021. 

The Court will award $1,050 (=$175/hour x 6 hours) in monetary sanctions in favor of CCHN for bringing this motion with respect to the RPDs. 

However, as stated above, the Court will stay entry of this order on the RPDs and sanctions until Defendants pay an additional filing fee for this motion. 

E.     SROG

Defendants seek Michael Hernandez’s further responses to SROG Nos. 13-14 and 17-20. 

SROG Nos. 13 and 14 ask Michael Hernandez for all date for which (13) he was Plaintiff’s primary caretaker responsible for homecare and home healthcare of Plaintiff and (14) he was compensated for providing homecare services to Plaintiff.  Michael Hernandez objected to the SROGs on the ground that they were overbroad, burdensome, oppressive/harassing, seek documents over a 12-year period; were vague as to certain terms; seek irrelevant information; and based on the attorney-client privilege, attorney work product doctrine, joint defense or common interest privilege, and third party’s privacy rights.  The scope of the SROGs is overbroad as they do not specify any time limitation.  Arguably the timeframe is proper given the scope of the complaint, but the Court will take into account the statute of limitations. Thus, discovery will be limited to May 3, 2017 to May 3, 2021 (the filing of the action).  However, the remaining objections are overruled as the SROGs seek relevant information.  Further, the information sought regarding dates for when Michael Hernandez was Plaintiff’s caretaker and his compensation are not privileged matters.  The motion is granted as to SROG Nos. 13-14, but limited to the time period of May 3, 2017 to May 3, 2021. 

SROG Nos. 17-20 ask Michael Hernandez how many times Plaintiff was left by herself (17) more than 2 hours, (18) 10 hours, (19) 24 hours, and (20) more than 24 hours while under his care during the incident (i.e., from July 2008 to November 2020).  Michael Hernandez objected to these SROGs on the same grounds as above.  Again, the Court overrules the objections as they are boilerplate in nature.  However, the Court will limit the timeframe for the SROGs from May 3, 2017 to May 3, 2021.  The motion is granted as to SROG Nos. 17-20. 

The Court will award $1,050 (=$175/hour x 6 hours) in monetary sanctions in favor of CCHN for bringing this motion with respect to the SROGs. 

However, as stated above, the Court will stay entry of this order on the SROGs and sanctions until Defendants pay an additional filing fee for this motion. 

DISCUSSION RE MOTION TO COMPEL ALDANA TO COMPLY WITH DEFENDANTS’ DEPOSITION SUBPOENA

            Defendants move to compel the non-party Jancy Aldana (Michael Hernandez’s fiancé) to comply with their Deposition Subpoena for Personal Appearance and Production of Documents and Things.  They argue that Aldana has refused to provide any documents requested and that these documents are relevant because they relate to communications involving Aldana dealing directly with the subject matter of claims made by Plaintiff because Aldana lived on Plaintiff’s property during the relevant time period, and he personally supervised, directed, and assisted the caregivers working for Plaintiff, and communicated with Spanish-speaking caregivers. 

            In response to the RPD requests, Aldana essentially provided boilerplate objections.  Aldana objected to the RPDs on the grounds that the RPDs were overbroad and burdensome; the documents are within the possession of Defendants; the RPDs seek irrelevant information; the RPDs seek information protected by the attorney work product doctrine, attorney client privilege, and common interest privilege; the RPDs are vague and ambiguous as to the terms “Plaintiff” and “action.” 

            RPD Nos. 1, 2, and 5 seek all (1) texts, (2) emails, and (5) communications exchanged between Aldana and Plaintiff relating to, referring to, or regarding the action.  RPD No. 10 seeks all communications between Aldana and Plaintiff relating to, referring to, or regarding Defendants’ employees including, but not limited to, caregivers and nurses assigned to work in Plaintiff’s home.  Without waiving objections, Aldana responded to Nos. 1, 2, and 5 that he “will conduct a reasonably diligent search for all non-privileged documents responsive to this Request within his possession, custody, or control and will produce such documents, if any, at his deposition.”  With respect to RFA No. 10, Aldana only objected and did not provide a response.

At his deposition, Aldana testified that he ran over his old phone with a car before January 2021, he tried to search through all his text messages on his new phone, and he did not have any responsive documents.  (Weintrop Decl., Ex. 3 [Aldana Depo. at pp. 206-207, 215-216, 217-218].) Aldana also stated that he did not believe that he had any communications or text messages with Michael Hernandez about this lawsuit because they lived together and they would have communicated in person.  (Aldana Depo. at pp. 210, 212.)  To the extent that he would have had any text messages with Michael Hernandez, such communications would have been on his old phone that was destroyed by a car, and he has no communications on his current phone about Plaintiff.  (Id. at pp. 211, 213-214, 220.) 

            The circumstances of the destruction of Aldana’s phone prior to January 2021 are unfortunate and somewhat convenient to Plaintiff and inconvenient to Defendants, but it appears that Aldana is not in possession of any phone communications between himself and Plaintiff—on his old phone or his new phone at the present time. As such, the motion is denied as to RPD No. 1.  While Aldana testified at his deposition that he has no written phone data regarding communications about the lawsuit, he did not expressly testify whether he had emails (which could be obtained via a computer) or other types of communication between Aldana and Plaintiff.  Thus, the Court will require Aldana to provide further responses to RPD Nos. 2, 5, and 10. 

            RPD Nos. 3, 4, and 6 seek all (3) texts, (4) emails, and (6) communications exchanged between Aldana and Michael Hernandez relating to, referring to, or regarding the action.  RPD No. 9 seeks all communications between Aldana and Michael Hernandez relating to, referring to, or regarding Defendants’ employees including, but not limited to, caregivers and nurses assigned to work in Plaintiff’s home. To RPD Nos. 3, 4, and 6, Aldana responded similarly as he did to Nos. 1, 2, and 5.  His response to No. 9 is similar to his objection to No. 10.  For the same reasons discussed above regarding Aldana’s communications with Plaintiff, the Court denies the motion as to RPD No. 3, but grants the motion as to RPD Nos. 4, 6, and 9. 

            RPD Nos. 7 and 8 seek all (7) communications and (8) documents evidencing communications between Aldana and any other person relating to, referring to, or regarding the action.  RPD No. 11 seeks all communications between Aldana and any other person relating to, referring to, or regarding Defendants’ employees including, but not limited to, caregivers and nurses assigned to work in Plaintiff’s home.  To RPD Nos. 7 and 8, Aldana responded similarly as he did to Nos. 1, 2, and 5.  His response to No. 11 is similar to his objections to Nos. 9 and 10.  While Aldana testified that he did not have any text messages between himself and Plaintiff or himself and Michael Hernandez at the deposition, he did not clarify whether he had any communications or documents with any of persons regarding the action or Defendants’ employees.  As such, clarification should be provided in a further response.  The motion is granted as to RPD Nos. 7, 8, and 11. 

            RPD No. 12 asks for all communications between Aldana and Magana.  Aldana objected to this RPD and responded that he would conduct a diligent search and produce documents at the deposition.  Based on the pages of Aldana’s deposition that were provided to the Court, Aldana did not respond to whether he had documents reflecting communications with Magana.  As such, this RPD has not been responded to in full.  The motion is granted as to RPD No. 12.

            RPD No. 13 seeks all communications between Aldana and Defendants’ employees including, but not limited to, caregivers, and nurses assigned to work in Plaintiff’s home. Aldana objected to the RPD and stated he would interpret Plaintiff to mean Patricia Hernandez only, but he did not provide a response thereafter.  This response to No. 13 appears to be incomplete.  Further, the deposition pages provided to the Court do not show Aldana’s testimony on whether he had documents between himself and Defendants’ employees.  The motion is granted as to RPD No. 13. 

            RPD Nos. 14 and 15 seek all communications between Aldana and any other person relating to, referring to, or regarding (14) Magana and (15) Plaintiff. 

To No. 14, Aldana objected but responded he would produce documents at the deposition.  As discussed above, it does not appear that Aldana testified whether he had documents between himself and to her persons referring to Magana.  As such, a further response is warranted to clarify whether such documents exist.  The motion is granted as to RPD No. 14. 

To No. 15, Aldana again objected and stated that he would interpret Plaintiff to mean Patricia Hernandez only, but then he failed to provide an actual response.  As such, the motion is granted as to No. 15. 

RPD Nos. 16 and 17 seek all communications between Aldana and any other person relating to, referring to, or regarding Plaintiff’s allegations that she was (16) sexually abused by Magana as alleged in her complaint and (17) neglected, assaulted, or abused while under Defendants’ care as alleged in her complaint.  Aldana objected to Nos. 16 and 17, but stated he would provide responsive documents at his deposition.  Again, the deposition transcript does not reflect whether Aldana does or does not have documents related to communications he had with other persons regarding Plaintiff’s allegations of sexual abuse, neglect, assault, or abuse.  The motion is granted as to RPD Nos. 16 and 17.  

            RPD Nos. 18 and 19 seek all documents in Aldana’s possession relating to, referring to, or regarding (18) Plaintiff and (19) Magana.  

To No. 18, Aldana again objected and stated that he would interpret Plaintiff to mean Patricia Hernandez only, but then he failed to provide an actual response.  As such, the motion is granted as to No. 18.

             To No. 19, Aldana objected but stated he would provide responsive documents at his deposition.  The deposition transcript does not reflect whether Aldana does or does not have documents related to documents regarding Magana.  The motion is granted as to RPD No. 19. 

            The motion is denied as to RPD Nos. 1 and 3, and granted as to RPD Nos. 2 and 4-19.

            Defendants request sanctions in the amount of $4,200 against Aldana and Plaintiff/Cross-Defendant’s counsel.  The request is granted in the reasonable sum of $1,750 (=$175/hour x 10 hours). 

CONCLUSION AND ORDER 

Defendant Continuity Care Home Nurses, Inc.’s motion to compel Cross-Defendant Michael Hernandez’s further response to Request for Admission No. 11 is granted.  Cross-Defendant is ordered to provide further responses within 5 court days of this order.  Cross-Defendant and his counsel of record, jointly and severally, are ordered to pay monetary sanctions in the amount of $525 to Defendant, by and through counsel, within 10 days of notice of this order. 

Defendant Continuity Care Home Nurses, Inc.’s motion to compel Cross-Defendant Michael Hernandez’s further response to Requests for Production Nos. 2-22 and Special Interrogatories Nos. 13-14 and 17-20 is granted, subject to the limitations stated in this written order.  Cross-Defendant and his counsel of record, jointly and severally, are ordered to pay monetary sanctions in the amount of $3,100 to Defendant, by and through counsel, within 10 days of notice of this order.  However, as stated above, the Court will stay entry of this order on the Requests for Production, the Special Interrogatories, and sanctions pending Defendants’ payment of two additional filing fee for the motion on these two separate sets of discovery.  If Defendants fail to pay the additional filing fees and file proof thereof by the end of the business day on August 15, 2022, the Court will take the motion off-calendar as to the Requests for Production, the Special Interrogatories, and accompanying sanctions. 

Defendants Continuity Care Home Nurses, Inc., Continuity Care Staffing Services, Inc., and Maryann Sawoski’s motion to compel non-party Jancy Aldana’s compliance with Defendants’ Deposition Subpoena for Personal Appearance and Production of Documents and Things is denied as to Request for Production of Documents Nos. 1 and 3, and granted as to Request for Production of Documents Nos. 2 and 4-19.  Jancy Aldana is ordered to provide further responses within 5 court days of this order.  Jancy Aldana and Plaintiff’s counsel, jointly and severally, are ordered to pay monetary sanctions in the amount of $1,750 to Defendants, by and through counsel, within 10 days of notice of this order. 

Defendants shall provide notice of this order.