Judge: Maurice A. Leiter, Case: 21STCV18794, Date: 2025-06-05 Tentative Ruling

Case Number: 21STCV18794    Hearing Date: June 5, 2025    Dept: 54

Hearing Date: June 5, 2025

Department 54, Judge Maurice A. Leiter

Motion for Protective Order

Moving Party: Defendants Vernon Healthcare Center, et al.

Responding Party: Plaintiff Debra Ann Blackmon, in and through her Guardian-Ad Litem, Latasha Bracks

T/R:     DEFENDANTS’ MOTION FOR PROTECTIVE ORDER IS DENIED. DEFENDANT RECHNITZ IS ORDERED TO APPEAR FOR HIS DEPOSITION WITHIN 15 DAYS. PARTIES TO MEET AND CONFER ON A DATE.

DEFENDANTS TO NOTICE. 

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing. 

The Court considers the moving papers, opposition, and reply.

BACKGROUND

On May 19, 2021, Plaintiff Debra Ann Blackmon, in and through her Guardian-Ad Litem, Latasha Bracks filed a complaint against Defendants, asserting causes of action for (1) elder abuse; (2) negligence; (3) violation of Health & Safety Code § 1430(B); and (4) willful misconduct. Plaintiff alleges she suffered care neglect as a patient at Vernon Healthcare Center, resulting in a diabetic coma.

ANALYSIS

“The court, for good cause shown, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (CCP § 2031.060(b).)

Defendants request the Court enter a protective order precluding Plaintiff from deposing Defendant Rechnitz under the Apex deposition doctrine. This doctrine provides that the deposition of a high-level member of corporate management (an “Apex deposition”) is not permitted unless: (1) the noticing party makes a showing of “good cause that the official has unique or superior personal knowledge of discoverable information;” and (2) the noticing party demonstrates “exhaustion of less intrusive discovery methods.” (Liberty Mutual Ins. Co. v Super. Ct. (1992) 10 Cal.App.4th 1282, 1287, 1289.)

Defendants assert that Rechnitz should not be made to testify because he does not have personal knowledge of Plaintiff’s injuries or care, Plaintiff’s counsel has already deposed Rechnitz in other actions, and Rechnitz would provide the same testimony in this action. Defendants represent that Plaintiff has not attempted less intrusive means to obtain discovery from Rechnitz, such as written interrogatories.

In opposition, Plaintiff asserts the deposition is necessary to determine the ownership and control structures of the various entities and individuals involved in operating Vernon Healthcare Center. This information is relevant and discoverable.

The Court declines to enter a protective order. Rechnitz is a party to this action and a necessary witness. Plaintiff is entitled to depose Rechnitz.

Defendants’ motion for protective order is DENIED. The Court ORDERS that the deposition take place within 15 days,

Hearing Date: June 5, 2025

Department 54, Judge Maurice A. Leiter

Motion for Summary Judgment, or in the alternative Motion for Summary Adjudication

Moving Party: Defendants Shlomo Rechnitz and Brius Management Co.

Responding Party: Plaintiff Debra Ann Blackmon, in and through her Guardian-Ad Litem, Latasha Bracks

T/R:     DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, MOTION FOR SUMMARY ADJUDICATION IS DENIED.

DEFENDANTS TO NOTICE. 

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing. 

The Court considers the moving papers, opposition, and reply.

BACKGROUND

On May 19, 2021, Plaintiff Debra Ann Blackmon, in and through her Guardian-Ad Litem, Latasha Bracks filed a complaint against Defendants, asserting causes of action for (1) elder abuse; (2) negligence; (3) violation of Health & Safety Code § 1430(B); and (4) willful misconduct. Plaintiff alleges she suffered care neglect as a patient at Vernon Healthcare Center, resulting in a diabetic coma.

EVIDENCE OBJECTIONS

“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion.” (CCP § 437c(q).) Defendants’ objection to the deposition testimony of Victor Lomeli is not relevant to disposition of the motion.

ANALYSIS

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Trial judges are required “to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2).) Once the defendant has met that burden, “the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (Id.)  To establish a triable issue of material fact, the party opposing the motion must produce “substantial responsive evidence.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

A. First Cause of Action for Elder Abuse and Claim for Punitive Damages

Welfare and Institutions Code section 15600 et seq. (“Elder Abuse Act”) govern elder abuse claims.  (Worsham v. O’Connor Hospital (2014) 226 Cal.App.4th 331, 336.)  “‘The Elder Abuse Act makes certain enhanced remedies available to a plaintiff who proves abuse of an elder, i.e., a ‘person residing in this state, 65 years of age or older.’”  (Id. (quoting Welf. & Inst. Code, § 15610.27.)  Abuse is defined, in part, as “[p]hysical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.”  (Welf. & Inst. Code, § 15610.07(a)(1); see also Worsham, supra, 226 Cal.App.4th at 336.)  Plaintiff must also establish that the defendant committed the abuse with recklessness, oppression, fraud, or malice.  (Welf. & Inst. Code, § 15657; Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 156.)

Defendants Shlomo Rechnitz and Brius Management Co. assert that Plaintiff cannot establish a claim for elder abuse against Defendants because they were not Plaintiff’s “care custodians” and did not engage in reckless, malicious, oppressive, or fraudulent conduct. Defendants argue that the claim for punitive damages fails for the same reasons.

Welfare and Institutions Code § 15610.17 defines a “care custodian” as: “[A]n administrator or an employee of any of the following public or private facilities or agencies, or persons providing care or services for elders or dependent adults, including members of the support staff and maintenance staff...

(a) Twenty-four-hour health facilities, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.

(b) Clinics

. . . . .

(j) Community care facilities, as defined in Section 1502 of the Health and Safety Code, and residential care facilities for the elderly, as defined in Section 1569.2 of the Health and Safety Code.

(k) Respite care facilities.”

Defendant Rechnitz is the CEO of Defendant Pacific Healthcare Holdings, Inc., formerly known as Brius Management Co. Pacific/Brius is a member and manager of Defendant Vernon Healthcare Center, LLC. Defendants represent that Rechnitz has never been employed by Defendant Vernon Healthcare Center, LLC directly and that he had no knowledge of and no involvement in the day-to-day operations, administration, or caregiving services provided to residents there.

In opposition, Plaintiff asserts that moving Defendants were responsible for the administration and operation of Vernon Healthcare Center. Plaintiff provides the operating agreements of Vernon Healthcare Center, which state that the manager of the company (here Pacific/Brius) “shall have the general supervision, direction, and control of the business of the Company, and the general powers and duties of management typically vested in the president of a corporation...[and the] sole power and authority to determine whether any expense or obligation incurred by the Company is reasonable under the circumstances, without regard to industry standards, past practices or the like.”

Plaintiff presents evidence showing Defendants consistently understaffed their facilities, including the several days when Plaintiff’s health declined for lack of hydration. Plaintiff presents evidence showing that Defendant Rechnitz was CEO of Vernon Healthcare Center, who’s responsibilities included “day-to-day operations of the Facility” under the operating agreement. This is sufficient to establish a triable issue of fact as to whether Defendants are care custodians under Welfare and Institutions Code §15610.17 and as to whether Defendants engaged in reckless, malicious, oppressive, or fraudulent conduct.

Defendants’ motion for summary judgment is DENIED. Defendants’ motion for summary adjudication of claims for elder abuse and punitive damages is DENIED.

B. Negligence

The elements for negligence are: (1) a legal duty owed to the plaintiff to use due care; (2) breach of duty; (3) causation; and (4) damage to the plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.) 

Defendants assert that the claim for negligence fails because Defendants did not owe Plaintiff a duty of care and did not breach that duty. Defendants argue that there was no duty because they were not involved with Plaintiff’s care or the operating of Vernon Healthcare Center. Defendants argue there was no breach because they did not engage in wrongful conduct.

As discussed, Plaintiff has presented evidence showing Defendants had ultimate management and administrative authority over Vernon Health Care Center and Defendants understaffed their facility. This is sufficient to create a triable issue of fact as to duty and breach.

Defendants’ motion for summary adjudication of the claim for negligence is DENIED.

C. Willful Misconduct

Defendants argue that Plaintiff cannot establish a claim for willful misconduct for the same reasons that Plaintiff cannot establish claims for elder abuse and negligence. As discussed, Plaintiff has established triable issues of fact as to these claims.

Defendants’ motion for summary adjudication of the claim for willful misconduct is DENIED.