Judge: Loren G. Freestone, Case: 37-2022-00012279-CU-NP-CTL, Date: 2023-08-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 03, 2023

08/04/2023  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited  Non-PI/PD/WD tort - Other Discovery Hearing 37-2022-00012279-CU-NP-CTL BONADIO VS VISTA WOODS HEALTH ASSOCIATES CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Plaintiff Karen Bonadio (individually and as trustee of the Clare M. Bonadio Trust and successor-in-interest to Clare M. Bonadio)'s motion to compel Defendant Pacifica Regency Palms LLC (d/b/a Alta Vista Senior Living) to provide further responses to requests for production is GRANTED as set forth below.

RFP 25, 44, 45 RFP 25 seeks performance evaluations for the Executive Director/Administrator while the decedent was a resident. RFP 45 seeks performance evaluations from January 1, 2020 through the present for employees who provided care to the decedent. And RFP 44 seeks documents relied upon by Alta Vista to ensure those employees were fit for their jobs, which although somewhat vague, was clarified in the motion to encompass documents such as 'training manuals, orientation manuals, and in-service training documents.' As limited below, these documents are directly relevant to Plaintiff's claim for enhanced remedies/punitive damages under the Elder Abuse and Dependent Adult Civil Protection Act, which requires clear and convincing evidence that Alta Vista either had advanced knowledge of the unfitness of its employees and employed them with a conscious disregard for the rights and safety of patients, authorized/ratified those employees' actions, or that a managing agent was personally culpable. (Welf.

& Inst. Code, § 15657; Civ. Code, § 3294.) Alta Vista argues that the documents are irrelevant because the quality of its care and its staffing levels were not the cause of the decedent's injuries. While causation may be a defense, it is not a basis for precluding discovery into these areas. (See Williams v. Superior Court (2017) 3 Cal.5th 531, 558 ['to show the merits of one's case has never been a threshold requirement for discovery'].) Alta Vista also objects based on the right to privacy, which must be evaluated according to the California Supreme Court's framework. (See Williams v. Superior Court (2017) 3 Cal.5th 531, 552, citing Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35–40.) 'The party asserting a privacy right must establish a legally protected privacy interest, and objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective Calendar No.: Event ID:  TENTATIVE RULINGS

2952709  34 CASE NUMBER: CASE TITLE:  BONADIO VS VISTA WOODS HEALTH ASSOCIATES  37-2022-00012279-CU-NP-CTL measures that would diminish the loss of privacy. A court must then balance these competing considerations.' (Ibid.) As to step one, Alta Vista employees have a privacy interest in their performance evaluations. (See, e.g., Harding Lawson Associates v. Superior Court (1992) 10 Cal.App.4th 7, 10; but see Williams, supra, 3 Cal.5th at p. 557, fn. 8 [disapproving Harding to the extent it automatically assumed the privacy interest at stake could only be overcome by a compelling need].) As to step two, as set forth above, Plaintiff has demonstrated that the requested documents are directly relevant to its elder abuse claim and essential to establishing enhanced remedies. As to the third step, Alta Vista asserts that Plaintiff can simply depose its employees about their performance.

Having taken everything into account, the balance tips in favor of Plaintiff, especially in light of the safeguards mentioned below. Although employees' privacy rights are at stake, those concerns are somewhat limited. Plaintiff is not seeking the employees' entire personnel files, but rather only performance reviews, and even then only for a limited timeframe. Plaintiff's interest in the performance reviews is also significant, and less intrusive means may be an insufficient substitute in the context of this case. As noted above, Plaintiff not only bears the burden of proving neglect, and that Alta Vista had advance knowledge of the unfitness of its employees, but she bears the burden of doing so by clear and convincing evidence. Employee depositions may reveal performance issues from the employees' perspective, but the written performance evaluations documenting those issues may be instrumental in meeting Plaintiff's high burden of showing, among others, notice. Moreover, any privacy (and overbreadth) concerns can be further alleviated by restricting the scope of disclosure to negative performance reviews specifically involving problems with patient care. Patient names can also be redacted and the documents can be produced pursuant to a protective order limiting their use to this litigation and requiring their destruction at the conclusion of the case.

So limited, the motion to compel is granted as to these requests.

RFP 46–49 These requests seek documents exchanged between Alta Vista and the other defendants regarding the facility's operating budget and staffing levels in 2020 and 2021.

Alta Vista initially objected to these requests on various grounds. After meeting and conferring, Alta Vista served an amended response withdrawing all objections and agreeing to produce the documents.

But then, nearly three months later, Alta Vista served another amended response purporting to 'retract' its agreement to produce documents and 'reaffirm' its prior objections.

Objections must be specifically stated. (See Code Civ. Proc., § 2031.240, subd. (b)(2).) Any objections not specifically stated are waived. (See Scottsdale Ins. Co. v. Superior Court (1997) 59 Cal.App.4th 263, 273.) Thus, once a party responds, without objection, and agrees to produce documents, that party cannot go back on its word. (See Stadish v. Superior Court (1999) 71 Cal.App.4th 1130, 1141.) Alta Vista waived its objections by withdrawing them and agreeing to produce documents. It is not free to simply change its mind months later and renege on that agreement. The motion to compel is therefore granted as to these requests.

Conclusion The motion to compel is granted as set forth above. Further verified responses shall be served within 20 days.

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