Judge: Maurice A. Leiter, Case: 22STCV21983, Date: 2024-06-25 Tentative Ruling

Case Number: 22STCV21983    Hearing Date: June 25, 2024    Dept: 54

Hearing Date: June 25, 2024

Department 54, Judge Maurice A. Leiter

Motion to Compel Deposition of Defendant Shlomo Rechnitz

Moving Party: Plaintiffs Carolyn Parker in and through her Successor-In-Interest, Darnley Scantlebury

Responding Party: Defendants West Pico Terrace Healthcare & Wellness Centre, LP, Pacific Healthcare Holdings, Inc., Rockport Administrative Services, LLC and Shlomo Rechnitz

T/R:     PLAINTIFFS’ MOTION TO COMPEL CONTINUED DEPOSITION IS GRANTED. THE DEPOSITION SHALL RESUME WITHIN 10 DAYS.

PLAINTIFFS 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 March 30, 2023, decedent Carolyn Parker, through her successor-in-interest to Darnley Scantlebury, filed the operative first amended complaint against Defendants, asserting causes of action for (1) elder abuse; (2) negligence; (3) violation of Health & Safety Code § 1430(B); (4) willful misconduct; and (5) wrongful death.

Plaintiffs allege decedent was a resident at Defendants’ skilled nursing facility from May 14, 2022 to May 17, 2022 following a stroke. Plaintiffs allege Defendants were repeatedly informed that decedent was at risk of falling from her bed, but Defendants refused to provide bed railings or a bed alarm and instead switched her to an unsafe mattress. Decedent fell out of bed in the middle of the night and was not helped for at least an hour after the fall. Plaintiffs allege decedent became paralyzed from the fall. Decedent was transferred to the hospital, where she suffered from infected pressure ulcers and various other complications, resulting in her death on January 12, 2023.

ANALYSIS

“If, after service of a deposition notice, a party to the action … without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.”  (CCP § 2025.450, subd. (a).)

The motion must be accompanied by a good faith meet and confer declaration under section 2016.040 or, “when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”  (CCP § 2025.450, subd. (b)(2).) 

Plaintiffs move to compel Defendant Rechnitz to finish his deposition. Plaintiffs assert Defendant has been evading deposition throughout this litigation. After several attempts to depose Defendant, he appeared for deposition on May 1, 2024. Plaintiffs represent that Defendant refused to continue the deposition after taking a break.

In opposition, Defendant argues that the deposition concluded before the break. Defendant represents that Plaintiffs’ counsel stated, “why don't you have him answer the question, and we'll be done with this deposition” before the break commenced. Defendant asserts that Defendants and Defendants’ counsel interpreted this to mean that if Defendant answered this last question, the deposition would be over. In reply, Plaintiffs argue that Defendant took Plaintiffs’ counsel’s statement out of context. Defendant also states that another deposition was scheduled to begin at 2:30pm and Defendant’s deposition concluded at 1:43pm.
 

The evidence presented shows the deposition had not concluded. Counsel’s statement did not indicate that the deposition would be over after a response to the question at issue.

Plaintiffs’ motion is GRANTED. The parties shall meet and confer on a date and time to resume the deposition. The renewed deposition shall take place within 10 days. The Court declines to award sanctions.

Hearing Date: June 25, 2024

Department 54, Judge Maurice A. Leiter

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

Moving Party: Defendants West Pico Terrace Healthcare & Wellness Centre, LP, Pacific Healthcare Holdings, Inc., Rockport Administrative Services, LLC and Shlomo Rechnitz

Responding Party: Plaintiff Carolyn Parker

T/R:     THE MOTION BY DEFENDANT PACIFIC HEALTHCARE HOLDINGS, INC. FOR SUMMARY ADJUDICATION IS GRANTED.

THE MOTION BY THE REMAINING DEFENDANTS FOR SUMMARY JUDGMENT OR 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 March 30, 2023, decedent Carolyn Parker, through her successor-in-interest to Darnley Scantlebury, filed the operative first amended complaint against Defendants, asserting causes of action for (1) elder abuse; (2) negligence; (3) violation of Health & Safety Code § 1430(B); (4) willful misconduct; and (5) wrongful death.

Plaintiffs allege decedent was a resident at Defendants’ skilled nursing facility from May 14, 2022 to May 17, 2022 following a stroke. Plaintiffs allege Defendants were repeatedly informed that decedent was at risk of falling from her bed, but Defendants refused to provide bed railings or a bed alarm and instead switched her to an unsafe mattress. Decedent fell out of bed in the middle of the night and was not helped for at least an hour after the fall. Plaintiffs allege decedent became paralyzed from the fall. Decedent was transferred to the hospital, where she suffered from infected pressure ulcers and various other complications, resulting in her death on January 12, 2023.

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’ objections to the deposition of Melissa Woods are OVERRULED.

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

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.)

Section 15657 also provides that the standards set forth in Section 3294(b) must be satisfied before any damages or attorney’s fees permitted under the Act may be imposed against an employer. (Welf. & Inst. Code, § 15657(c).) Section 3294(b) provides that “[a]n employer shall not be liable for [punitive damages], based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice.” (Civ. Code, § 3294(b).)

Defendants assert the claim for elder abuse fails because Plaintiffs do not have evidence of recklessness, oppression, fraud, or malice and because Plaintiffs do not have evidence of employer ratification or authorization. Plaintiffs allege Defendants’ speech therapist stated on May 16, 2022 that bed rails and other fall prevention measures were necessary to protect decedent from falling, having observed decedent almost fall out of bed during their session. These measures were not implemented, and decedent fell out of bed on May 17, 2022 at 1:30am. Defendants argue that this failure does not establish recklessness, oppression, fraud, or malice and instead is merely “unfortunate timing.”

In opposition, Plaintiffs present evidence showing Defendants failed to make a baseline care plan within decedent’s first day of admission, failed to implement any fall prevention measures despite clear indications that decedent was a high fall risk, failed to assist decedent for at least an hour after falling, moved her, and delayed calling 911. Plaintiffs present evidence showing that Defendants’ Director of Nursing failed to request fall prevention measures. A jury could find that this is reckless disregard for decedent’s care and safety.

Plaintiffs assert Defendants ratified and authorized this conduct by lying to the California Department of Public Health following an investigation of the incident. Plaintiffs present evidence showing that Defendants’ Administrator instructed Defendants’ Director of Plant Operations to tell the investigator that he had installed side rails on decedent’s bed before her fall.

Defendants also argue that Plaintiffs cannot show that the non-facility Defendants Pacific Healthcare Holdings, Inc., Rockport, and Rechnitz had a custodial or caretaking relationship with decedent. Plaintiffs present evidence showing Rockport is the managing agent for the facility, and Rechnitz is the owner of Rockport. Plaintiffs contend Rockport and Rechnitz ratified the facility’s conduct by failing to discipline any of the directors and administrators who provided substandard care to decedent and engaged in a fraudulent scheme to deceive state investigators. This is sufficient to establish a triable issue of fact as to Rockport and Rechnitz’ ratification and authorization of the facility’s conduct.

But Plaintiffs fail to provide any evidence or argument regarding Defendant Pacific Healthcare Holdings, Inc.

Defendants’ motion for summary judgment is DENIED. Defendant Pacific Healthcare Holdings, Inc.’s motion for summary adjudication of the first cause of action is GRANTED. The remaining Defendants’ motion for summary adjudication of the first cause of action is DENIED.

B. Second, Fourth and Fifth Causes of Action for Negligence, Willful Misconduct and Wrongful Death

Defendants assert that Plaintiffs cannot establish the second, fourth, and fifth causes of action against the non-facility Defendants because they did not owe a duty to Plaintiffs, and because Plaintiffs have no evidence the non-facility Defendants acted wrongfully. Plaintiffs present evidence showing Rockport and Rechnitz are managing agents for the facility by means of an agreement to manage, oversee, control, and operate the facility. Plaintiffs assert that Rockport and the facility are a joint venture. This is sufficient to create triable issues of fact as to Rockport and Rechnitz’ liability.

Plaintiffs also have presented evidence that Defendants breached the applicable standards of care. A jury reasonably could find that the breaches proximately caused Decedent’s death.

Again, Plaintiffs fail to address Defendant Pacific Healthcare’s relationship to the facility.

Defendant Pacific Healthcare’s motion for summary adjudication of the second, fourth and fifth causes of action is GRANTED. The remaining Defendants’ motion for summary adjudication of the second, fourth and fifth causes of action is DENIED.

C. Punitive Damages

Defendants assert Plaintiffs cannot establish punitive damages because there is no evidence of malice, oppression, or fraud. As discussed, Plaintiffs have presented evidence showing that Defendants were reckless with decedent’s care and that Defendants attempted to fraudulently conceal their recklessness to state investigators and Plaintiffs. Plaintiffs present evidence showing this conduct was ratified by the facility’s managing agents, Rockport and Rechnitz.

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