Judge: Margaret L. Oldendorf, Case: 22BBCV00073, Date: 2023-05-02 Tentative Ruling
Case Number: 22BBCV00073 Hearing Date: May 2, 2023 Dept: P
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
NORTHEAST DISTRICT
I.
INTRODUCTION
This litigation concerns the death
of Barbara Bereny (Decedent) during the time she was a resident at a Residential
Care Facility for the Elderly (RCFE). Decedent was a resident at Sunrise of
Studio City, which is owned by Sunrise Senior Living Management, Inc. (SSLMI). Shahin
Taghizadeh, Sunrise Studio City’s administrator, was named as a defendant but
later dismissed. Nominal defendants include Decedent’s lawful heirs.
The complaint alleges elder abuse, negligence, and willful
misconduct (on behalf of Decedent by her successor in interest) and wrongful
death (by Decedent’s heirs). Plaintiff Joshua Bereny pursues Decedent’s claims
as her successor in interest and sues on his own behalf for wrongful death.
Before the Court is Plaintiff’s motion to compel SSLMI to
provide further responses to three Requests for Production of Documents (RFPs).
As to the request for production of incident reports the motion is denied. As
to requests for policies and procedures and for assignment sheets the motion is
granted.
II. LEGAL
STANDARD
When a party propounding demands for inspection deems
responses to the demands to be incomplete or evasive, or deems objections to be
without merit, the propounding party may move for an order compelling further
responses. Such motion must set forth facts showing good cause for the
discovery, be accompanied by a meet and confer declaration, and include a
separate statement. Such motion must also be made within 45 days of verified
responses or supplemental responses, or on or before any specific later date
the parties have agreed to in writing. Code Civ. Proc. §2031.310(a)-(c).
Subdivision (h) provides for the imposition of monetary
sanctions against any party who unsuccessfully makes or opposes such a motion
unless the court finds that the one subject to sanction acted with substantial
justification or that other circumstances make the imposition of sanctions
unjust.
III. ANALYSIS
A. Procedural Considerations
The Declaration of Reza Sobati and attached exhibits
demonstrates that good faith efforts to meet and confer were engaged in prior
to the filing of this motion. The discovery at issue was propounded in
September 2022. Responses were served in October and meet and confer
correspondence commenced in November 2022. As a result of those efforts SSMLI
agreed to supplement its responses and its privilege log more than once,
narrowing the issues to be resolved.
Paragraph 15 and Exhibit N memorialize their written
agreement to extend Plaintiff’s date for filing this motion to February 24,
2023.
Exhibit A to the Sobati Declaration is a copy of the RFPs
that were served on SSLMI. Exhibit B is a copy of SSLMI’s initial responses.
B. RFP No. 9 - Incident Reports
RFP No. 9 seeks all “incident reports” involving
Decedent. This is different from the “Unusual Incident/Injury Report” (LIC 624
form) that RCFEs like SSLMI are required to fill out and submit to the California
Department of Social Services following an incident. SSMLI responded to RFP No.
9 with objections and it produced a privilege log. The log identifies 7 incident
reports. For each, the date of preparation and author of the report are
identified. The recipients of each report are identified as “Resident Director,
Executive Director, Sunrise Legal Department, and Litigation defense counsel.”
Plaintiff challenges the validity of the objection that
incident reports are protected by attorney-client privilege and attorney work
product. Plaintiff bases the objection on deposition testimony wherein
employees testified that incident reports were transmitted to the Executive
Director, Resident Director, nurse, and then only later to an attorney. Plaintiff
urges that because the reports were initially sent between non-attorneys they
cannot be considered attorney-client communications.
The test is what the document’s primary purpose is. Chadbourne,
Inc. v. Superior Court (1964) 60 Cal.2d 723, 737. In Chadbourne the
Supreme Court grappled with how to ensure that corporations were not given
greater privilege than natural persons simply because they have to utilize a
person in order to speak. Chadbourne outlined rules for determining
rules for determining when a corporation may claim attorney-client privilege.
Numbers 5 and 6 are applicable here:
5. If the employer requires the employee (by standing rule
or otherwise) to make a report, the privilege of that report is determined by
the employer’s purpose in requiring it [“that is to say, if the employer directs
the making of the report for confidential transmittal to its attorney, the
communication may be privileged”]; and
6. “When the corporate employer has more than one purpose
in directing such an employee to make such report or statement, the dominant
purpose will control, unless the secondary use is such that confidentiality has
been waived.”
Plaintiff has taken the deposition of Executive Director
Sean (Shahin) Taghizadeh. Taghizadeh described the form as having sections to
fill out such as the resident’s name and the time of the incident; he further
testified that it has a place for a nurse to review it, for Rhonda to review,
and then has a place for executive signature at the bottom. Exhibit R to Sobati
Declaration, Taghizadeh Deposition at 140:18-141:8. In response to the question, “As you
understand it what is the purpose of making [an] Incident Report?” he
responded, “It’s to inform Rhonda and David of the incidents.” Id. at
141:15-21. Prior to his response counsel objected to the question on the
grounds of lack of foundation and calling for speculation. Taghizadeh also
testified that incident reports are discussed at morning meetings and that they
were usually reviewed with coordinators and the incident care director. Id.
at 125:20-23.
The “Rhonda” referred to above is Rhonda Bunnin, Resident
Care Director. Plaintiff also took her deposition. Bunnin testified when she
received incident reports she reviews them, follows up with staff, alerts the
Executive Director, and reviews them together at the daily meeting. Exhibit S
to Sobati Declaration, Bunnin Deposition at 28:13-25.
SSMLI opposes the motion by urging that Taghizadeh’s
testimony was “inaccurate” on this point. SSMLI offers the declaration of its
Regional Director of Operations. According to Herman Marquez, SSMLI uses a
self-created internal form that is separate from the governmentally required
form. As to this self-created form, Marquez avers as follows:
“5. The Sunrise internal
incident report form was specifically created by the legal and risk management
departments for the purpose of obtaining information to assist the legal
department in providing legal advice regarding the incident.
6. Sunrise’s internal
incident reports, titled “Resident/General Liability Incident Report”, are used
by the legal department to make an initial assessment of liability in
anticipation of litigation. The incident report is also used internally as a
quality control measure to assess and evaluate areas of opportunity to improve
the quality of care provided to residents and determine ways to reduce
morbidity and mortality rates.
7. Per the instruction of the
legal department, the incident report form was to be completed at Sunrise of
Studio City whenever there was an incident that warranted creation of the
report.
8. Sunrise’s internal
incident report forms are filled out by the care staff and then transmitted to
the Executive Director of Sunrise of Studio City for review and action.
9. The incident report forms
are to be transmitted to the Sunrise legal department.
10. The incident report form
was provided to the Sunrise of Studio City community so that the community
could document any incidents that might lead to litigation and obtain legal
advice with regard to that incident.”
Based upon his position with the corporation, which is at
a regional rather than site specific level, Marquez’s evidence regarding the
purpose of the incident report form is accepted. Plaintiff does not attempt to
object to it. Instead, Plaintiff argues that this evidence has no bearing on
the motion because Marquez does not have any specific knowledge as to the
incident reports at issue. Whether he has seen the reports or not is not
pertinent. As he is not counsel for SSMLI it is not clear why he would have
seen them. The reason his testimony bears on the issue is that he can testify
about the purpose for which the corporation created the form. In ¶6 he
testifies that this purpose is for use by the legal department but that they
are also used by staff for quality control. The testimony by Taghizadeh and
Bunnin is not to the contrary; rather, it confirms that these forms also serve
a secondary purpose.
“The landmark case of D.I. Chadbourne, Inc. v.
Superior Court (1964) 60 Cal.2d 723, 36 Cal.Rptr. 468, 388 P.2d 700 (Chadbourne)
details eleven basic principles to be applied in determining whether the
attorney-client privilege exists in a corporate setting. (Id. at pp.
736–738, 36 Cal.Rptr. 468, 388 P.2d 700.) Where, as here, a corporate employer
requires that its employees make a report, the privilege of that report is
determined by the employer’s purpose in requiring the report. (Id. at p.
737, 36 Cal.Rptr. 468, 388 P.2d 700.) When the corporate employer has more than
one purpose in requiring the report, the dominant purpose will control. (Ibid.)”
Scripps Health v. Superior Court (2003) 109 Cal.App.4th 529, 533.
SSMLI has established that the incident reports are
shielded by attorney-client privilege. The motion to compel a further response
is therefore denied.
C. RFP No. 13 – Policies and Procedures
This RFP seeks policies and procedures that were used by
the facility and were in effect at the relevant time period [December 31, 2019
to February 24, 2021].
SSMLI provided all policies and procedures regarding
falls but has objected to further production on the ground that the request is
overbroad and seeks material not relevant to this action.
Code Civ. Proc. §2017.010 permits a party to “obtain
discovery regarding any matter, not privileged, that is relevant to the subject
matter . . . if the matter is either itself admissible in evidence or appears
reasonably calculated to lead to the discovery of admissible evidence.”
According to a leading treatise, “For discovery purposes, information should be
regarded as ‘relevant’ to the subject matter if it might reasonably assist a
party in evaluating the case, preparing for trial, or
facilitating settlement. [Gonzalez v. Sup.Ct. (City of San
Fernando) (1995) 33 CA4th 1539, 1546, 39 CR2d 896, 901 (citing text); Lipton
v. Sup.Ct. (Lawyers' Mut. Ins. Co.) (1996) 48 CA4th 1599, 1611, 56
CR2d 341, 347 (citing text); Stewart v. Colonial Western Agency, Inc.
(2001) 87 CA4th 1006, 1013, 105 CR2d 115, 120 (citing text)]” Weil & Brown,
Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group June 2022),
¶8:66.1.
Relevance is broad. SSMLI is correct that it is not
limitless, but the requested documents here are not beyond the bounds of what
is relevant. Discovery of SSMLI’s policies and procedures is a request that appears
to be calculated to lead to the discovery of admissible evidence. Calcor
Space Facility, Inc. v. Superior Court (1997) 53 Cal. App. 4th 216 (Calcor),
on which SSMLI relies, is distinguishable because it concerns discovery
requested for a third party. “As between parties to litigation and nonparties, the
burden of discovery should be placed on the latter only if the former do not
possess the material sought to be discovered.” Id. at 225. Moreover, the
discovery requested from the third party there amounted to 32 pages of requests
with six pages of definitions which the third party indicated would take two
employees two and a half weeks to located. No such showing is made here.
As to the request for policies and procedures during the
relevant time period, the objections are overruled and the motion to compel a
further response is granted.
D. RFP No. 16 – Assignment Sheets
RFP No. 16: “Please produce all assignment sheets, staff
schedules, employee sign-in sheets, and time sheets evincing the identity,
quantity, and classification of staff who worked at the FACILITY during the
RELEVANT TIME PERIOD.”
SSMLI objects that this discovery request is overbroad,
unduly burdensome, and oppressive. It also objects on the basis of privacy and
relevance. Subject to a protective order, SSMLI agreed to produce the staffing
information for the neighborhood where Decedent resided but only for the one
month period during which on fall incident occurred (February 2021). The
parties have entered into a protective order, which deals with the privacy
objection. December 16, 2022 Order Regarding Stipulated Protective Order
Regarding Confidential Documents.
The relevance objection is overruled. As Plaintiff points
out, the staffing sheets are a viable means for obtaining the names of
potential witnesses, including those who were assigned to different parts of
the facility. As testified to by Katiria Soto, the assignment sheets will show
what tasks a caregiver was assigned on a particular shift. Sobati Declaration,
Exhibit Q, Soto Deposition at 24:22-25:12.
The assignment sheets are also pertinent to Plaintiff’s
allegation that SSMLI siphoned off profits and understaffed the facility. Complaint,
¶¶29, 58. Thus, staffing levels overall and not just in the part of the
facility where Decedent resided are relevant.
As to the burdensome and oppressive
objections, the much-cited West Pico Furniture Co. of Los Angeles v.
Superior Court (1961) 52 Cal.2d 407, 417-418 has this to say:
“Oppression
must not be equated with burden. The objection based upon burden must be
sustained by evidence showing the quantum of work required, while to support an
objection of oppression there must be some showing either of an intent to
create an unreasonable burden or that the ultimate effect of the burden is
incommensurate with the result sought. . . . But, under the pertinent code sections burden,
alone, is not a ground for objection. In addition to expressly incorporating
the provisions of subdivision (b) of section 2016, and of subdivision (b) of
section 2019, subdivision (b) of section 2030 provides that the court may
‘protect the (objecting) party from annoyance, expense, embarrassment or
oppression.’ Subdivision (b) of section 2019 includes similar language,
omitting the word ‘expense.’ Each of the sections grants the power to make such
orders as justice requires, but none of them so much as refers to ‘burden.’
This indicates a legislative acknowledgment that some burden is inherent in all
demands for discovery. The objection of burden is valid only when that burden
is demonstrated to result in injustice. Hence, the trial court is not empowered
to sustain an objection in toto, when the same is predicated upon burden,
unless such is the only method of rendering substantial justice.”
Here, SSMLI has not offered evidence of the “quantum of
work” that would be required to respond to this discovery request. Unlike in Calcor,
where the party resisting discovery presented evidence that it would require
two employees working two and a half weeks to find and produce the documents,
no such showing is made here.
The discovery request appears to be relevant and is not
shown to be burdensome or overbroad. The motion is granted and a further
response is required.
E. Sanctions
Plaintiff requests monetary sanctions. As SSMLI has prevailed
on an important aspect of the motion, the Court finds that the motion was not
opposed without substantial justification. The request is therefore denied.
IV. CONCLUSION
Plaintiff’s motion for an order compelling further
responses is granted in part and denied in part. As to RFP No. 9 the
attorney-client privilege is sustained and the motion is denied. As to RFP Nos.
13 and 16 the objections are overruled and the motion is granted. SSMLI is ordered
to provide further responses to RFP Nos. 13 and 16 within 20 days of notice of
this order. Plaintiff is ordered to provide notice of this order.
Dated: _______________________________
MARGARET OLDENDORF
JUDGE
OF THE SUPERIOR COURT