Judge: John J. Kralik, Case: 22STCV26984, Date: 2024-05-03 Tentative Ruling
Case Number: 22STCV26984 Hearing Date: May 3, 2024 Dept: NCB
North
Central District
|
kimberly
k.,
by and through her Guardian Ad Litem WILLIAM FERRELL, Plaintiff, v. imperial care
center llc,
et al., Defendants. |
Case No.: 22STCV26984 Hearing Date: May 3, 2024 [TENTATIVE]
order RE: motion for an order to
take the deposition of defendant rafael moya in prison |
BACKGROUND
A.
Allegations
Plaintiff Kimberly K., by and through her
guardian ad litem William Ferrell, alleges that Plaintiff (a “dependent adult”
within the meaning of the Welfare & Institutions Code) was raped, sexually
assaulted, sexually harassed, abused, and sexually battered by Defendant Rafael
Moya (“Moya”), while Plaintiff was a patient confined to the lockdown unit at
Defendant Imperial Care Center LLC (“ICC”).
Plaintiff alleges that the rape occurred on March 12, 2022. Plaintiff alleges that Defendants ICC
Convalescent Corp. (“ICC Convalescent”), Longwood Management Corp. (“Longwood”),
Comfort Care Hospice Inc. (“Comfort Care”), and Aveanna Healthcare, LLC
(“Aveanna”) negligently hired, supervised, and retained Moya.
The first amended complaint (“FAC”),
filed on March 11, 2024, alleges causes of action for: (1) elder/dependent
adult abuse and neglect; (2) negligence; (3) false imprisonment; (4) sexual
battery (Civil Code, § 1708.5); (5) IIED; (6) violation of Civil Code, § 51.9;
(7) neglect; (8) negligent hiring; (9) negligent control; (10) premises
liability; (11) enhanced remedies based on reckless conduct; and (12) survival
action. The 1st–7th
and 11th–12th causes of action are brought against all
Defendants. The 8th–10th
causes of action are brought against ICC, ICC Convalescent, Longwood, Comfort
Care, and Aveanna.
B.
Relevant Background and Motion on Calendar
On February 10, 2023, the Court granted
Defendants ICC Convalescent Corp., Longwood Management Corporation, and
Imperial Care Center, LLC’s motion to compel arbitration and request for stay
of the entire action. The Court ordered
that Plaintiff’s claims in the complaint based on conduct occurring prior to
March 3, 2022 shall be submitted to arbitration, but ordered that the remainder
of the claims based on conduct occurring on or after March 3, 2022 (including
the alleged rape claim) shall be stayed pending the resolution of the
arbitration. The Court noted that
Defendants Comfort Care, Moya, and Aveanna had not joined the motion to compel
arbitration such that the action against those Defendants was stayed pending
the outcome of the arbitration. (2/10/13
Order at p.9.)
On March 23, 2023, Plaintiff dismissed
without prejudice Defendant Aveanna Healthcare, LLC only.
On January 22, 2024, Plaintiff filed a
Notice of Death of Plaintiff Kimberly K.
The notice states that Kimberly K passed away on October 8, 2023 and
that William Ferrell, the surviving husband and guardian ad litem of Kimberly
K. will proceed with the action.
On April 16, 2024, Plaintiff’s ex parte
application for an order to take the deposition of Defendant Rafael Moya came
for hearing. The Court denied the ex
parte application so that the noticed motion would go forward. The Court noted that the case was stayed
pending the arbitration and if the arbitrator ordered a deposition to be taken
in prison and the prison refuses to honor the request, the Court would consider
making an order to effectuate the arbitrator’s request. The Court set the motion for an order to take
Moya’s deposition in prison for May 3, 2024.
On April 18, 2024, Plaintiffs filed the
instant motion for an order to take the deposition of Moya in prison. On April 22, 2024, Defendants ICC
Convalescent Corp., Longwood Management Corporation, and Imperial Care Center,
LLC (hereinafter, “Opposing Defendants”) filed an opposition brief. On April 26, 2024, Plaintiffs filed the reply
brief.
DISCUSSION
Plaintiffs
William Ferrell, an individual and as guardian ad litem for Kimberly K; Collin
Ferrell, an individual; and Shannon Elizabeth Ferrell, by and through her
guardian ad litem William Ferrell (collectively, “Plaintiffs”) move for an
order to take the deposition of Defendant Rafael Moya who is currently an
inmate at Avenal State Prison in Avenal, California.
According to the
declaration of Plaintiffs’ counsel Meylin P. Alfaro, the following requirements
to schedule a deposition are: (1) a court order is required to schedule Moya’s
deposition; (2) once the court order is obtained and provided to the Avenal State
Prison’s Litigation Coordinator, Verenice Torres, Ms. Torres will email the
required documents to be filled out with the required information from everyone
who will be in attendance, including the court reporter; (3) once everyone is
cleared, Ms. Torres will contact counsel to inform them when the deposition can
go forward, which will be on a date and time available to the prison; and (4)
the deposition can be taken in prison (with a charge for the officers’ time) or
via Zoom. (Id., ¶6.)
In
the reply brief, Plaintiffs state that a hearing to obtain an order from the Arbitrator
regarding the deposition at issue occurred on April 23, 2024, which counsel for
Opposing Defendants, counsel for Comfort Care, counsel for Rafael Moya, and
counsel for Plaintiffs attended. Plaintiffs
state that Arbitrator Jay Cordell Horton, Esq., granted Plaintiff’s Application
to Take the Deposition of Defendant Rafael Moya in prison. The parties agreed to take the deposition of
Moya on areas concerning both the Arbitration and this action. The deposition is scheduled by the Avenal
State Prison to take place no earlier than May 20, 2024 or, alternatively, on
the next available date to the Avenal State Prison. The Arbitrator signed the Order on Claimants’
Oral Application for an Order to Take the Deposition of Defendant Rafael Moya
in Prison on April 26, 2024. (Reply, Ex.
1.)
As
the parties have resolved the issue in this motion to take the deposition of
Rafael Moya, the substantive merit of this motion is moot. In the abundance of caution, the Court will
grant this motion for an order to take the deposition of Defendant Rafael Moya
and issue this order so that the Avenal State Prison has both the Arbitrator’s
order and the Court’s written order allowing Plaintiffs to conduct the
deposition of Rafael Moya.
CONCLUSION
AND ORDER
Plaintiffs William Ferrell, an individual and as guardian ad litem for Kimberly
K; Collin Ferrell, an individual; and Shannon Elizabeth Ferrell, by and through
her guardian ad litem William Ferrell’s motion for an order to take the
deposition of Defendant Rafael Moya is granted. Plaintiffs should submit a form
of order.
Plaintiff shall provide
notice of this order.
DATED:
May 3, 2024 ___________________________
John
Kralik
Judge
of the Superior Court