Judge: Margaret L. Oldendorf, Case: 23AHCV00068, Date: 2024-03-20 Tentative Ruling

Case Number: 23AHCV00068    Hearing Date: March 20, 2024    Dept: P

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NORTHEAST DISTRICT

          I.        INTRODUCTION

          This case concerns the death of Victor Lucchesi, who died at the age of 75 while a resident of skilled nursing facility (SNF) Care Unlimited Health Services (Care Unlimited). His daughter, Debra L. Bachman, sues individually and as trustee of the trust set up by her parents. She alleges that her father suffered from Parkinson’s disease, suffered a stroke in 2018, and required full care. Care Unlimited provided care for Mr. Lucchesi from 2020 until his death in 2022. Bachman alleges that the care her father received was inadequate, as the nurses were not properly trained, her father had several setbacks, and his medication was not properly or promptly administered.

          The complaint contains seven causes of action: (1) elder neglect, (2) negligence, (3) wrongful death, (4) negligent hiring and supervision, (5) violation of consumer legal remedies act, (6) intentional misrepresentation and (7) negligent misrepresentation.

Plaintiff filed the instant motion to compel further responses on October 27, 2023 as to Requests for Production, Set One. Plaintiff filed a notice that no opposition was received on March 11, 2024. Two hours later, also on March 11, 2024, Counsel for Defendants filed a declaration attempting to address the status of Defendants’ responses.

At issue is the sufficiency of Care Unlimited’s compliance with Requests for Production Nos.  2, 11, 21, 23-27, 39, 40, 44-46, and 48-50 propounded as Requests for Production, Set One on April 13, 2023. For the reasons that follow, the motion is granted in part.  

II.       LEGAL STANDARD

          A party responding to requests for inspection must either provide a statement of compliance, represent that it lacks the ability to comply, or object. (Code Civ. Proc. § 2031.210.) When a party propounding demands for inspection deems responses to the responses to be incomplete or evasive, or deems objections to be without merit, the propounding party may move for an order compelling further responses. Such a motion must set forth facts showing good cause for the discovery, be accompanied by a meet and confer declaration, and include a separate statement. The 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).)

          Code Civ. Proc. Section 2031.310(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. Meet and Confer

Code Civ. Proc. §2031.310(b) mandates that a motion to compel further responses be accompanied by a meet and confer declaration under Section 2016.040. Code Civ. Proc. §2016.040 details what this requirement entails: “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”

Counsel for Plaintiff, Rewa Ousman, declares that after receiving Defendant Care Unlimited’s response on May 31, 2023, she sent a meet and confer letter on July 7, 2023. (Ousman Decl. ¶ 7, Exh. E.) Counsel then met telephonically on July 19, 2023.  They agreed that the deadline to file a motion to compel further responses was extended, and the deficiencies in the responses were discussed. (Ousman Decl. ¶ 8.) 

Ousman then provided clarification as to what documents Plaintiff was seeking, via an email sent on July 28, 2023. She received no response. (Ousman Decl. ¶ 9, Exh. G.) Plaintiff’s counsel granted several extensions in which to provide supplemental responses to the discovery requests. (Ousman Decl. ¶¶ 10-17.) On October 13, 2023, the date of the last extension, no supplementals were received. (Ousman Decl. ¶ 18.) Defendant’s counsel emailed on October 17 that he would send the supplementals by October 19, 2023. (Ousman Decl. ¶ 19.) Supplementals were provided October 19, 2023. (Ousman Decl. ¶ 20.)

Ousman declares that the October 19, 2023 production had no documents attached, and several documents counsel had discussed were not provided. (Ousman Decl. ¶ 21.) Defendant’s counsel responded by providing a link to the documents; but he did not clarify regarding the missing documents that counsel had discussed (personnel records). (Ousman Decl. ¶ 22, Exh. R.) Ousman then filed this motion to compel.

Ousman’s declaration is sufficient for meet and confer purposes.

          B. Discovery Requests at Issue

At issue in this motion are Requests for Production Nos. 2, 11, 21, 23-27, 39, 40, 44-46, 48-50.

Request for Production No. 2: Please produce the entire Designated Record Sets as defined by 45 CFR § 164.501 for VICTOR D. LUCCHESI. This request includes records originating at THE FACILITY and received from other sources.

Request for Production No. 11: All DOCUMENTS submitted to any person or entity, including any governmental agency or insurance provider consisting of or reflecting bills, statements of account, claims for compensation for services, and/or requests for payments RELATED TO any services rendered to VICTOR D. LUCCHESI while under the care of CARE UNLIMITED HEALTH SERVICES, INC.

 Note: This request includes itemized bills submitted to Medi-Cal, and/or any other third-party payer.

Request for Production No. 21: The table of contents of all policy and procedure manuals or Protocols in effect at CARE UNLIMITED HEALTH SERVICES, INC. from September 2020 to January 30, 2022.

Request for Production No. 23: All written personnel policies in effect at CARE UNLIMITED HEALTH SERVICES, INC. from September 2020 to January 30, 2022.

Request for Production No. 24: All policies and procedures related to accepting patients for treatment or case on the basis of a reasonable expectation that the patient's needs can be met by the agency in effect at CARE UNLIMITED HEALTH SERVICES, INC. from September 2020 to January 30, 2022.

Request for Production No. 25: All POLICIES and procedures or Protocols for medication administration in effect during the RELEVANT TIME PERIOD while under the care of CARE UNLIMITED HEALTH SERVICES, INC.

Request for Production No. 26: All POLICIES and procedures or Protocols for tracheostomy care in effect during the RELEVANT TIME PERIOD while under the care of CARE UNLIMITED HEALTH SERVICES, INC.

Request for Production No. 27: All POLICIES and procedures or Protocols for g-tube care in effect during the RELEVANT TIME PERIOD while under the care of CARE UNLIMITED HEALTH SERVICES, INC.

Request for Production No. 39: The PERSONNEL file and all PERSONNEL DOCUMENTS for all home health aides at CARE UNLIMITED HEALTH SERVICES, INC. involved in the care of VICTOR D. LUCCHESI.

Request for Production No. 40: The PERSONNEL file and all PERSONNEL DOCUMENTS for Nery De Loen.

Request for Production No. 44: Please produce all DOCUMENTS you contend show that you submitted a Plan of Correction for the deficiencies found in the Department of Public Health Survey of CARE UNLIMITED HEALTH SERVICES, INC. completed on December 9, 2019

Request for Production No. 45: Please produce all DOCUMENTS you contend show that you complied with a Plan of Correction for the Department of Public Health Survey of CARE UNLIMITED HEALTH SERVICES, INC. completed on December 9, 2019.

Request for Production No. 46: Please produce a copy of all DOCUMENTS exchanged between YOU and the California Department of Public Health that refers in any way to the care of VICTOR D. LUCCHESI.

Request for Production No. 48: All Annual Reports submitted to the Department of Public Health or Department of Health Care services from 2019 to 2022.

Request for Production No. 49: All DOCUMENTS that you claim that CARE UNLIMITED HEALTH SERVICES, INC. maintained a system of reviewing and evaluating the appropriateness and effectiveness of patient services and the correction of deficiencies from 2019 to 2022.

Request for Production No. 50: All Plans of Correction submitted in response to deficiencies issued to CARE UNLIMITED HEALTH SERVICES, INC. by the Department of Public Health from 2019 to 2022.

          C. Analysis

          i. Relevance

Code Civ. Proc. Section 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.” (CCP § 2017.010.) 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.  (1995) 33 CA4th 1539, 1546 (citing text); Lipton v. Sup.Ct. (1996) 48 CA4th 1599, 1611 (citing text); Stewart v. Colonial Western Agency, Inc. (2001) 87 CA4th 1006, 1013 (citing text)]” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group June 2022), ¶8:66.1.) 

As Plaintiff notes, the scope of discovery is broad by design. (Memorandum of Points and Authorities p.14: 21, p. 18:1-2.) The discovery requests here seek information regarding Care Unlimited’s policies and procedures as they relate to the specific care Victor Lucchesi received; reports to the California Department of Public Health (which oversees and certifies SNFs); and personnel files of people who cared for Mr. Lucchesi, among others. This information is relevant to Plaintiff’s causes of action arising out of the care Defendant provided to Mr. Lucchesi, under the broad and narrow definition of relevance.

Accordingly, the information sought by the discovery requests at issue is relevant. The relevancy objection is overruled.

          ii. Impropriety of Defendant’s Responses

In his motion, Bachman’s counsel urges that a number of Defendant’s responses are improper, specifically RFPs Nos. 2, 11, 21, 23-27 and 46. (Memorandum of Points and Authorities p. 9: 10-11.) Specifically, she urges that boilerplate objections are not proper and that statements of compliance are required. (Id.) These arguments are well-taken. (See CCP § 2031.220; Korea Data Sys. Co. v. Super. Ct. (1997) 51 Cal.App.4th 1513, 1517; West Pico Furniture Co. of L.A. (1961) 56 Cal.2d 407, 417.) Care Unlimited’s responses fail to list all the documents in their possession that meet the discovery request criteria. (Memorandum of Points and Authorities p. 11: 13- p. 13:13.)

          Additionally, Bachman argues that Care Unlimited’s responses to RFP 21, 23 and 46 are non-complaint, as Care Unlimited responded that it would provide “all relevant nonprivileged items responsive to the request that is in its possession, custody and control” and this qualification does not comport with CCP Section 2031.220. (Memorandum of Points and Authorities p.10: 3-4.) Bachman urges that this response leaves open the possibility that other documents exist that Care Unlimited has decided are irrelevant or privileged. The Court agrees, and orders Care Unlimited to produce a privilege log to the extent that the privilege objection is still being asserted. As discussed above, all of the RFPs are relevant.

          To the extent that Care Unlimited is still asserting objections as to overbreadth, burden, oppression and harassment, the Court notes that the standard for overbreadth is to be ambiguous to the point of being unintelligible, which is not met here. (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.) Additionally, the statement of ‘burden’ alone is not enough to assert an overly burdensome objection to production. (West Pico Furniture Co. of L.A. (1961) 56 Cal.2d 407, 417.) To the extent that Care Unlimited believes the requests to be requesting information outside of the scope of the lawsuit, the Court encourages parties to meet and confer further on this point of contention.

          Care Unlimited is still apparently asserting a privacy objection to RFPs 39 and 40.   Bachman urges that Care Unlimited, as the party asserting the privacy objection, must first establish that the information sought is indeed private and do the interest balancing. Bachman urges that personnel information as to who undertook her father’s care is not protected by privacy interest as these employees may be possible witnesses to the causes of action. (Memorandum of Points and Authorities p.13: 14-15.) Bachman urges that private information of these employees, such as social security numbers and other personal information, may be redacted from the files. (See Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 598.)

          Care Unlimited also asserted several objections that apply to the admissibility of evidence, which is not applicable at the discovery phase. (See EC § 1101 [character evidence], EC § 1151 [subsequent remedial measures], Memorandum of Points and Authorities p. 19: 22- p. 21: 25.) Accordingly, these objections are overruled.

Lastly, to the extent that the Court considers the possibility that Defendant is still asserting attorney-client or work product privilege valid objections to RFP 49, the Court agrees with Bachman that Defendant needs to produce a privilege log. (See CCP § 2031.240(c)(1), Memorandum of Points and Authorities p.22: 1-10.)

Defendant did not file a timely opposition to the motion to compel.  Instead, Care Unlimited’s counsel Fang Li filed a declaration on March 11, 2024. In it, he declares that he was engaged in trial in San Diego when the opposition was due. (Li Decl. ¶ 3.) He declares that the opposition due date was not properly calendared “for some reason.” (Li Decl. ¶¶ 2,3.) He insists that half of RFPs at issue were answered fully, either by the initial May 31, 2023 production or the supplemental October 19, 2023 production. (Li Decl. ¶¶ 5-19.) Specifically, Li urges that RFPs 2, 11, 23, 24, 25, 26, 27, 46, 49 were answered completely, and that Care Unlimited is not withholding any documents in response to these discovery requests. He signs this declaration under penalty of perjury.

However, with respect to RFPs 39, 40, 44, 45, 48 and 50, Li urges “Care Unlimited intends to produce these records prior to the hearing on March 20, 2024.” (Li Decl. ¶¶ 13, 14, 15, 16, 18, 20.) The Court notes that there is nothing filed with the Court by either side indicating that Care Unlimited served these supplemental records.

Accordingly, the Court compels a further response to RFPs 39 ,40 ,44 ,45, 48 and 50.

D. Sanctions

Code of Civil Procedure section 2031.310, subdivision (h) and 2030.300 subdivision (d), requires the imposition of sanctions against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response unless the court finds the imposition of a sanction to be unjust or that the one subject to the sanction acted with substantial justification. 

Bachman asks for monetary sanctions against Defendant Care Unlimited in connection with making the motion. In support, Bachman provides the declaration of her attorney, Rewa Ousman. (Ousman Declaration.) Ousman declares that her hourly rate is $350. (Ousman Decl. ¶ 25.) She declares that she has spent 12 hours on the motion and anticipates spending 2 hours preparing for and appearing at the hearing. She spent $60.00 on the filing fee. Accordingly, the total expenses incurred are $4,960. However, Plaintiff only requests a monetary sanction of $1,500.

The Court finds that the amount of sanctions requested by Plaintiff is reasonable. The Court finds that the hourly rate is reasonable.

Accordingly, the Court awards total sanctions of $1,500.

V.       CONCLUSION AND ORDER

          Plaintiff Bachman’s motion to compel further responses to Requests for Production, Set One is GRANTED with respect to RFPs 39, 40, 44, 45, 48 and 50.  Further verified responses without objection (if applicable) and responsive documents are to be served and produced within twenty (20) days of today’s date.

The associated request for sanctions is GRANTED against Care Unlimited and its counsel jointly in the amount of $1,500.  Sanctions are to be paid to Plaintiff within thirty (30) days of today’s date.   

Bachman is ordered to give notice.

Dated:                                                              _______________________________

                                                                              MARGARET L. OLDENDORF

                                                                       JUDGE OF THE SUPERIOR COURT