Judge: Michael Small, Case: 21STCV21105, Date: 2023-05-22 Tentative Ruling

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Case Number: 21STCV21105    Hearing Date: May 22, 2023    Dept: 57

The Court has reviewed Plaintiff's supplement to his pending discovery motions in which he seeks to obtain the names and contact information of the Plaintiff's roommates during the period that he resided at Defendant Hollywood Premier Healthcare Center ("the Facility"), as well the names and contact information of the responsible parties and resident representatives for other Facility residents during that period.  Plaintiff's purpose in seeking this material is to identify potential witnesses to support the claim that he is making in this case that he was the victim of elder abuse while he resided at the Facility.  At a prior hearing on the motions, the Court directed the parties to meet and confer on a letter to be sent to the roommates, responsible parties, and resident representatives through which the recipients could choose to "opt-in" to being contacted by Plaintiff's counsel.   The Court's purpose in making this directive was to protect the privacy interests of the individuals in question  -- specifically, the ability of the individuals to keep private the fact that they or loved ones are so infirm that they are residing in a nursing home.

In his supplement to the pending motions, Plaintiff argues that the opt-in letter that the Court directed the parties to put together is not countenanced by Puerto v. Superior Court (2008) 158 Cal.App.4th 1212.  In that case, the Court of Appeal held that an opt-letter to  employees of the grocery store chain where plaintiffs worked impaired plaintiffs' ability to identify witnesses to support their wage and hour claims and that any privacy interests of the other employees was outweighed by the plaintiffs' interest in obtaining the identify of potential witnesses.   

It is not clear, however, that the balance struck in Puerto compels the conclusion that that this Court erred in directing the opt-in letter at issue here.   It seems instead to the Court that the privacy interests of nursing home residents is greater than the privacy interests of the grocery store employees in Puerto.  Indeed, the Court is aware that opt-letters of the very type directed here have been employed in other cases involving allegations of elder abuse in nursing homes so as to protect the privacy interests of nursing home residents and their friends/family members acting as their representatives.   The declaration of Plaintiff's counsel submitted with the supplement to the motion suggests that counsel has not had to use opt-in letters in cases similar to this one.  Instead, counsel says, he has been permitted to contact directly residents of nursing homes who were potential witnesses.  The Court recalls that, by contrast, counsel for Defendant 
represented to the Court at the hearing at which the opt-in letter was discussed and ordered that, in his experience, opt-in letters in cases like this one are common.  In any event, at the hearing on May 22, 2023, the Court will review with counsel for both sides the implications of Puerto for the opt-in letter this Court has directed and the respective experiences of counsel in obtaining witness information in cases alleging elder abuse at  nursing homes.