Judge Mark A. Young, Case Number: 21STCV07392, Date: 2023-07-21 Tentative Ruling

Judge: Mark A. Young, Case: 21STCV07392, Date: 2023-07-21 Tentative Ruling

Case Number: 21STCV07392 Hearing Date: August 4, 2023 Dept: M

CASE NAME: Field, v. Northstar Senior Living Inc., et al.

CASE NO.: 21STCV07392

MOTION: Motion to Compel Further Responses to Form and Special Interrogatories

HEARING DATE: 8/4/2023

Legal Standard

In the absence of contrary court order, a civil litigant’s right to discovery is broad. “[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (CCP § 2017.010; see Davies v. Superior Court (1984) 36 Cal.3d 291, 301.) “For discovery purposes, information is relevant if it ‘might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement.’ [Citation] Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. [Citation] These rules are applied liberally in favor of discovery.” (Gonzales v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.)

A motion to compel further responses to form or specially prepared interrogatories may be brought if the responses contain: (1) answers that are evasive or incomplete; (2) an unwarranted or insufficiently specific exercise of an option to produce documents in lieu of a substantive response; or (3) unmerited or overly generalized objections. (CCP § 2030.300(a).)

A motion to compel further must be noticed within 45 days of the service of a response, or any supplemental response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing. Otherwise, the propounding party waives any right to compel further response to the inspection demand. (See, e.g., CCP § 2031.310(c).)

Motions to compel further responses must always be accompanied by a meet-and confer-declaration (per CCP § 2016.040) demonstrating a “reasonable and good faith attempt an informal resolution of each issue presented by the motion.” (CCP §§ 2030.300(b), 2031.310(b)(2), 2033.290(b).) They must also be accompanied by a separate statement containing the requests and the responses, verbatim, as well as reasons why a further response is warranted. (CRC, rule 3.1345(a).) The separate statement must also be complete in itself; no extrinsic materials may be incorporated by reference. (CRC rule 3.1345(c).)

If a timely motion to compel has been filed, the¿burden is on the responding party¿to justify any objection or failure fully to answer.¿(Coy v. Superior Court (1962) 58 Cal.2d 210, 220–221 [addressing a motion to compel further responses to interrogatories]; see also¿Fairmont Ins. Co. v. Superior Court¿(2000) 22 Cal.4th 245, 255.)

Analysis

Plaintiff Cathryn Michelle Field moves to compel further responses from Defendant NorthStar Senior Living, Inc., as to Plaintiff’s: (1) form interrogatories, set three, no. 17.1; and (2) special interrogatories, Sets Two and Three, nos. 20, 42, 44, 52. Plaintiff also requests monetary sanctions against Defendant and its counsel of record in the amount of $3,375.00 and $2,387.50, respectively.

Form Interrogatories

On July 11, 2023, Plaintiff filed the instant motion to compel further responses from Defendant NorthStar Senior Living, Inc., to Plaintiff’s form interrogatories, set three, no. 17.1. Plaintiff also requests monetary sanctions against Defendant and its counsel of record in the amount of $3,375.00.

Form Interrogatory no. 17.1 pertains to requests for admissions nos. 31-34 and 37. It requests that for each denial as to RFA, set three, Defendant must:

(a) state the number of the request;

(b) state all facts upon which you base your response;

(d) identify all DOCUMENTS and other tangible things that support your response and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing.

Plaintiff argues that Defendant continues to fail to provide complete, straightforward responses to FIs no. 17.1 as to RFAs nos. 31-34, & 37.

RFA no. 31-34

RFA No. 31: Admit that you understood residents diagnosed with “dementia” must have their cigarettes stored in a manner such that they are “inaccessible” to them to comply with California regulations in 2019.

RFA No. 32: Admit that you knew residents diagnosed with “dementia” must have their cigarettes stored in a manner that they are “inaccessible” to them to comply with your internal policies from in 2019.

RFA No. 33: Admit that you knew residents diagnosed with “dementia” must not have access to “heating devices” to comply with California regulations in 2019.

RFA No. 34: Admit that California Code Regulation Title 22, Section 87705 applied to “licensees who accept or retain residents diagnosed by a physician to have dementia” in 2019.

In the operative third supplemental response, Defendant denied these RFAs and provided the same responses as to each in FI no. 17.1(b)-(d).

(b) Responding Party is not a memory care facility. Defendant’s subject facility is an assisted living facility and the persons who reside there are appropriate for placement, including Ms. Swenson. Placement of residents relies on several factors, as a result of collaboration between physician, responsible party, family, and care staff, as Responding Party is not a memory care facility.

(c) Dr. Lefferman; Dr. Ross; Cathryn Field; Elisabeth Powell; Cassandra Arnold; each of whom may be contacted through their respective counsel of record. Matan Burstyn, may be contacted through Lewis Brisbois Bisgaard & Smith, LLP, 650 E. Hospitality Lane, San Bernardino, CA 92408.

(d) Physician Assessments, which have been produced in discovery and are equally available to the parties. (See Exhibit B to Aziz Decl.)

Plaintiff argues that the response to 17.1(b) is evasive or incomplete. Plaintiff reasons that they did not ask if Defendant’s facility was a “memory care facility,” and that the cited regulations applied to Defendant in 2019. As to RFAs no. 31-33, Defendant denies that they understood or knew that California regulations required that i) residents diagnosed with dementia have their cigarettes stored in a certain manner; and ii) residents diagnosed with dementia could not have access to “heating devices.” As to RFA no. 34, Defendant denies that a certain regulation applied to them. Defendant provides that their denial is supported by the fact they are not a “memory care” facility, but an “assisted living” facility. Defendant thus implies that they are not subject to the cited California regulations because they are an assisted living facility.

This response is not evasive on its face since the question only calls for Defendant’s understanding or knowledge of the regulations at issue. Plaintiff argues that, as a matter of law, these state regulations applied to Defendant’s facility, and Defendant must more persuasively argue why the regulations would not apply to it. However, the response is already a straight-forward explanation in support of the denial. Whether Defendant’s understanding or knowledge of the law was correct—that they were actually subject to the cited regulations—is of no moment. Plaintiff cannot require further responses simply because they disagree with Defendant’s understanding of the law. (See Holguin v. Sup.Ct. (1972) 22 Cal.App.3d 812, 820 [the court may not compel further responses to RFAs that are unqualifiedly denied, even if the facts involved are unquestionably true].) Plaintiff merely contends that Defendant has provided unreasonable denials without true supporting facts as to the FIs. As such, Plaintiff’s contentions do not provide a basis to compel further answers to the FIs at issue. The Court would direct Plaintiff to CCP section 2033.420(a)-(b), which provides a more appropriate forum to address whether a responding party unreasonably denied an RFA.

As to subpart (c), Plaintiff argues that the cited witnesses are “not responsive” to the specific request being asked, as it pertains to residents diagnosed with dementia generally. However, the facts averred in subpart (b) apply to all residents. The response referenced all “persons who reside” at the facility “including Ms. Swenson,” but not limited to Ms. Swenson. Subpart (c) merely requests that a party provide the witnesses that have knowledge of those facts. Plaintiff does not explain why the proffered witnesses would not have information pertaining to Defendant’s regulatory status as a care facility or the applicability of the regulations. Again, the truth or persuasiveness of Defendant’s contentions is not at issue.

As to subpart (d), Plaintiff argues that Defendant identification of the “Physician Assessments” are vague. Plaintiff asserts that Defendant should be more specific as to which “physician assessments” it relies on to support its denial the Title 22 regulation does not apply to Defendant’s facility. Plaintiff also argues that the reference to the physician assessment would be improper because the assessment only pertains to Ms. Swenson. However, Defendant cites a precise document in support of their denial. Plaintiff merely contends that identified document does not, in reality, support Defendant’s denial, and would thus require Defendant to answer differently. This is not a ground for compelling a further response to an interrogatory.

RFA No. 37

RFA No. 37: Admit that Nancy Swenson was a resident accepted and retained by Terraza who was diagnosed by a physician to have dementia prior to her death.

In the operative third supplemental response, Defendant denied RFA no. 37, and provided the following response as to 17.1(b)-(d):

(b) Ms. Swenson had mild cognitive impairment.

(d) Physician Assessments, which have been produced in discovery and are equally available to the parties.

As to subpart (b), Defendant denied that Ms. Swenson was a resident at Terraza diagnosed with dementia by a physician prior to her death because Ms. Swenson had only a mild cognitive impairment. Thus, Defendant implies that Ms. Swenson did not actually have dementia. Plaintiff argues that this is evasive because, as a matter of fact, a physician assessment previously produced by Defendant provided a dementia diagnosis. Plaintiff thus contends that Defendant’s proffered fact is not true—Ms. Swenson was, in fact, diagnosed with dementia. While this is not Plaintiff’s preferred response, this does not make the answer evasive or incomplete as defined by the code. Plaintiff further contends that the request pertains to Ms. Swenson’s diagnosis upon admission. Yet, the RFA does not request information pertaining to admission. Instead, the RFA pertains to Ms. Swenson’s diagnosis “prior to her death” which necessarily includes time after her admission. Therefore, it is not true that the RFA refers to her diagnosis at the time of admission. That said, the answer may still be considered incomplete, since the call of the question only refers to Ms. Swenson’s diagnosis, whereas Defendant’s response pertains to Ms. Swenson’s actual mental condition. Largely, Defendant relies on the implication that it denies the validity of the diagnosis, rather than the fact that Ms. Swenson was diagnosed with Dementia. Thus, Defendant did not completely answer the interrogatory.

As to subparts (c) and (d), Plaintiff reasons that because the response to subpart (b) was evasive or incomplete, the remaining subparts are also unsupported. However, this does not follow. The answers to subparts (c) and (d) refer to documents and witnesses that would support the facts of the denial. Plaintiff does not explain why this reference would be insufficient.

Accordingly, the motion to compel further responses as to form interrogatory no. 17.1 is DENIED as to the responses corresponding to RFA nos. 31-34; and GRANTED as to the responses corresponding to RFA no. 37. A further response is ordered within ten days.

Special Interrogatories

As to the special interrogatories, Plaintiff argues that Defendant's discovery must be verified. On June 29, 2023, the day prior to the motion being served, Defendant served “partial verifications” to its third supplemental responses previously served in April 2023. (Turner Decl., ¶ 17.) Thus, Plaintiff demonstrates that Defendant provided verifications prior to this motion. While this was untimely, this would not support the instant motion for a further response.

Substantively, Defendant provides code compliant, complete, and non-evasive responses to special interrogatories nos. 20, 42, 44, and 52.

SROG No. 20 - State how many residents of TERRAZA that were NONAMBULATORY (both Physical and Mental condition) per 602 form physician report for residential care facilities for the elderly (RCFE) from August-October 2019.

Responding Party answers: 0.

Defendant provides a simple and straightforward response: zero residents of Terraza were non-ambulatory during the cited period. It is undisputed that Defendant has provided a verification of this answer. No further responses are required.

SROG No. 42 - If YOU contend that Nancy Swenson was not diagnosed with DEMENTIA upon admission into Terraza in March 2015, state all facts in support of YOUR contention.

Responding Party answers: Ms. Swenson’s primary diagnosis was hypertension. Responding Party refers to Ms. Swenson’s physician assessments to support Defendant’s basis of information and belief, wherein, Ms. Swenson was identified as “MCI” or mild cognitively impaired.

This also provides a straightforward response. Defendant answers that they do contend that Ms. Swenson was not diagnosed with dementia upon her admission in March 2015, because her primary diagnosis was hypertension, and the physician assessment identifies that Ms. Swenson was “mild cognitively impaired.” There are no grounds for a further response.

SROG No. 44 - If YOU contend that Nancy Swenson was not diagnosed with DEMENTIA upon admission into Terraza in March 2015, DESCRIBE all DOCUMENTS in support of YOUR contention.

Responding Party answers: the 602 Physician’s Report prepared on admission; the May 19, 2019 Physician’s Assessment; and Nancy Swenson’s hospice assessment through Dr. Ross’ 602 Physician's Report.

This also provides a straightforward response. Defendant lists the documents that support their contention that Ms. Swenson was not diagnosed with dementia at admission. Nothing further is called for in the interrogatory. Further, Plaintiff is more than capable of identifying the documents cited, as they discuss the nature of the documents in the moving and reply papers. Plaintiff argues that Defendant should be compelled to comply with the parties’ agreement to cite bates specific numbers. Plaintiff provides no evidence of such an agreement. Plaintiff also does not cite any rule or law requiring bates stamp numbers. Thus, there are no grounds for a further response.

SROG No. 52 – If YOU contend that Nancy Swenson was permitted to recreate outside the front of the facility on October 17, 2019, unsupervised DESCRIBE all DOCUMENTS in support of YOUR contention.

Responding Party responds as follows: California Code of Regulations, Title 22, section 87468 regarding resident rights and Personal Rights – Residential Care Facilities for the Elderly (LIC 613C), included in the Admissions Agreement.

Again, Defendant provides a straightforward response, listing the universe of documents which support Defendant’s position that Ms. Swenson was permitted to recreate out front of the facility in October 2019. This includes 22 CCR § 87468 and the LIC 613C included in the Admissions Agreement. No further response is required.

Accordingly, Plaintiff’s motion to compel further responses to SROGs nos. 20, 42, 44, and 52 is DENIED.

SANCTIONS

Sanctions are mandatory. The Court must sanction any party that unsuccessfully makes or opposes a motion to compel a further response, “unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (See, e.g., CCP, § 2030.300(d).)

As to form interrogatories, given the limited success of the motion, the Court is not inclined to grant sanctions against Defendants. The Court finds that as to the majority of the issues, Defendants were substantially justified in opposing. Therefore, additional sanctions against Defendant would be inappropriate.

As to the special interrogatories, Plaintiff’s motion was denied and therefore the request for sanctions is likewise DENIED. Defendant does not request counter sanctions as to that motion.