Judge: Michelle Williams Court, Case: 21STCV32018, Date: 2022-10-12 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 74 before 8:30 the morning of the hearing. The email address is smcdept74@lacourt.org. Please do not call the court to submit on the tentative.

IF THE DEPARTMENT DOES NOT RECEIVE AN EMAIL INDICATING THE PARTIES ARE SUBMITTING ON THE TENTATIVE RULING AND THERE ARE NO APPEARANCES AT THE HEARING, THE MOTION WILL BE PLACED OFF CALENDAR.

If you decide not to submit on the tentative ruling, REMOTE APPEARANCES ARE AUTHORIZED AND STRONGLY ENCOURAGED.  Please visit the court’s Here for You | Safe for You News Center for the latest orders governing court business.  http://www.lacourt.org/newsmedia/ui/HfySfy.aspx
    
In deciding whether to submit on the tentative ruling or attend the hearing and present oral argument, please keep the following in mind: The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record. Oral argument is not an opportunity to simply repeat that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated. If you submit on the tentative, you must immediately notify all other parties email that you will not appear at the hearing. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. If all parties to the motion submit, this tentative ruling will become the final ruling after the hearing date and it will be memorialized in a minute order. This tentative ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such document will be considered by the Court.


 


 

Case Number: 21STCV32018    Hearing Date: October 12, 2022    Dept: 74

21STCV32018           ANGELA SHALOME STREAT WILSON vs SHLOMO RECHNITZ, et al.

Plaintiff Angela Shalome Streat Wilson’s Motion to Compel Further Responses from Defendant The Healthcare Center of Downey, LLC to Special Interrogatories, Set Two

TENTATIVE RULING:  Plaintiff’s Motion to Compel Further Responses from Defendant The Healthcare Center of Downey, LLC to Special Interrogatories, Set Two is GRANTED.  Defendant The Healthcare Center of Downey, LLC is ordered to provide further verified, code compliant responses to Special Interrogatories, Set Two, Nos. 57-59 and 61-63 within 20 days. Defendant’s responses to  Special Interrogatories, Set Two Nos. 57-59 and 61-62 must be without objection. Defendant’s further response to Special Interrogatories, Set Two, No. 63 must either justify its privilege objections and respond to the extent possible or, if Defendant determines it cannot do so, remove the objections and provide a substantive response without objections.

Pursuant to Code of Civil Procedure section 2030.300(d), the Court imposes sanctions in the amount of $3,060.00 against Defendant The Healthcare Center of Downey, LLC, and its attorneys of record, Cowdrey Jenkins, LLP, jointly and severally, payable to Plaintiff via her attorney of record within 60 days.

Background

On August 30, 2021, Plaintiff Angela Shalome Streat Wilson, by and through her Guardian ad Litem, Megan Frilot filed this action against Defendants Shlomo Rechnitz, The Healthcare Center of Downey LLC, Rechnitz Lakewood GP, Rockport Administrative Services, and Steven Stroll. The complaint alleged two causes of action: (1) dependent adult abuse and (2) negligent hiring and supervision. The complaint alleges that the Defendants, through various entities, aided and abetted wrongful acts and omissions at the direction of Shlomo Rechnitz, resulting in Plaintiff, a dependent adult, eloping from the facility and being allowed to roam the streets for two months. Defendants allegedly failed to staff enough individuals, hired unqualified employees, and provided sub-standard care to the patients, including Plaintiff.  

Motion to Compel Further Responses

On June 21, 2022, Plaintiff filed the instant motion seeking to compel Defendant The Healthcare Center of Downey, LLC to provide further responses to Special Interrogatories, Set Two Nos. 57-59 and 61-63.

Opposition

In opposition, Defendant contends Plaintiff is not entitled to the information sought, Defendant provided the information required under Code of Civil Procedure section 2017.210, the interrogatories seek private information and information protected by attorney-client or work product privileges.

Reply

In reply, Plaintiff reiterates her arguments that the information is discoverable and sanctions are warranted.

Motion to Compel Further Responses to Interrogatories

Standard

The propounding party may bring a motion to compel further responses to interrogatories if it believes the responses received are evasive or incomplete, the attempt to produce writings pursuant to Code of Civil Procedure section 2030.230 is unwarranted or inadequate, or if the objections raised are meritless or too general. (Code Civ. Proc. § 2030.300(a).) The motion must be accompanied by a good-faith meet and confer declaration, (Code Civ. Proc. § 2016.040), and be accompanied by a separate statement. (Cal. R. Ct., rule 3.1345.) The opposing party bears the burden of justifying any objections. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255; Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 97-98.) Williams v. Superior Court (2017) 3 Cal.5th 531, 541 (“the burden of justifying any objection and failure to respond remains at all times with the party resisting an interrogatory.”).)

Unless extended, the motion must be filed within 45 days of service of the responses. (Code Civ. Proc. §§ 2016.050; 2030.300(c); Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410 (“the time within which to make a motion to compel . . . is mandatory and jurisdictional.”).)

Background of Discovery and Meet and Confer

On April 19, 2022, Plaintiff served Special Interrogatories, Set Two upon Defendant The Healthcare Center of Downey, LLC. (Garcia Decl. ¶ 6.) Defendant served objection-only responses on May 23, 2022. (Id. ¶ 7, Ex. 1.) The parties exchanged correspondence and met in a video conference to address the discovery at issue, but were unable to reach a resolution. (Id. ¶¶ 8-11, Ex. 3-5.)

Special Interrogatories – Set Two

Special Interrogatory No. 57 asks “[a]s to the policy of insurance which provides coverage for the responding party for the claims asserted in the complaint in this litigation, have any other claims as against that policy been made for the policy period in which you have tendered the instant claim for coverage to the insurer?”

Special Interrogatory No. 58 asks “[i]f your answer to the immediately preceding inquiry is in the affirmative, please IDENTIFY each claimant who has made claim as against your referenced policy of insurance for the policy period in which you have tendered the instant claim for coverage to the insurer.”

Special Interrogatory No. 59 asks “[i]f your answer to Special Interrogatory number 57 is in the affirmative, please IDENTIFY the attorney representing each claimant who has made claim as against your referenced policy of insurance for the policy period in which you have tendered the instant claim for coverage to the insurer.”

Special Interrogatory No. 61 asks “[i]f your answer to the immediately preceding inquiry is in the affirmative, please PROVIDE information relating to each such lawsuit.”

Special Interrogatory No. 62 asks “[h]ave there been any monetary payments as to any other claims as against that policy of insurance by which coverage has been afforded in this matter in policy period in which you have tendered the instant claim for coverage to the insurer?”

Special Interrogatory No. 63 asks “[p]lease set forth the total amount of monetary reserves set for as against that policy of insurance by which coverage has been afforded in this matter in policy period in which you have tendered the instant claim for coverage to the insurer?”

Defendant responded to each of these interrogatories with objections based upon relevance and citation to Code of Civil Procedure section 2017.210. Defendant also asserted a privacy objection to Special Interrogatories Nos. 58 and 59 and objections based upon attorney client privilege and work product to Special Interrogatory No. 63.

Defendant Must Provide Further Responses

Defendant argues the motion should be denied because it asserted valid objections. (Opp. at 2:20-6:19.) “[T]he burden of justifying any objection . . . remains at all times with the party resisting an interrogatory.” (Williams, supra, 3 Cal.5th at 541.)

Code of Civil Procedure section 2017.210 provides, in relevant part, “[a] party may obtain discovery of the existence and contents of any agreement under which any insurance carrier may be liable to satisfy in whole or in part a judgment that may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. This discovery may include the identity of the carrier and the nature and limits of the coverage. A party may also obtain discovery as to whether that insurance carrier is disputing the agreement's coverage of the claim involved in the action, but not as to the nature and substance of that dispute.”

Defendant notes it responded to Form Interrogatory No. 4.1 providing the type of insurance, the insurer, the policy number, and the limits of the policy. (Opp. at 3:14-4:7.) Defendant also notes it produced the insurance policy. (Id. at 4:8-25.) The Special Interrogatories seek additional insurance related information, which Defendant contends is improper.

Defendant cites Irvington-Moore, Inc. v. Superior Court (1993) 14 Cal.App.4th 733, in which the court addressed whether the Code of Civil Procedure section 2017(b), the predecessor to Code of Civil Procedure section 2017.210, preluded discovery of insurance policies via requests for production. (Irvington-Moore, supra, 14 Cal.App.4th at 735 (“In this discovery proceeding we consider whether the trial court may order the production of an insurance policy in a personal injury action.”).) In Irving-Moore, the insurance company expressed concern “that insurance policies may contain information which is unrelated to the plaintiff's need to obtain insurance information and which otherwise should not be subject to compelled disclosure.” (Id. at 742.) The Court of Appeal responded that “[u]nless the application is incorporated into the policy or is otherwise made part of it, the application would not constitute part of the contents of the policy and hence would not be separately discoverable.” (Id. at 742–743.) The court further noted “the Civil Discovery Act of 1986 provides ample protection against unwarranted disclosure of personal or financial information,” noting the general scope of discovery and the trial court’s “authority to limit discovery upon a proper showing.” (Id. at 743.) The Court is not persuaded that the limited discussion in Irvington-Moore mandates an absolute denial of the discovery sought here. “The availability and extent of a defendant's liability insurance coverage is important information that plaintiffs are clearly entitled to discover under section 2017.210.” (Catholic Mutual Relief Society v. Superior Court (2007) 42 Cal.4th 358, 373.)

Defendant notes Special Interrogatories Nos. 58 and 59 seek the identities of other insurance claimants and their counsel and cites authority regarding the right to privacy. (Opp. at 5:14-6:1.) Defendant’s general citations to authority, without application to the facts at issue, are insufficient to meet its burden. (Williams, supra, 3 Cal.5th at 557 (Courts must instead place the burden on the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion.”).) Additionally, Plaintiff demonstrates that the identity of individuals who made claims during the same time as Plaintiff may lead to the discovery of admissible evidence related to Defendant’s recklessness. (Sep. Stmt. at 3:25-8:25.) “For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence.” (Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1611–1612 (quotations and citations omitted).)

To obtain the remedies available in section 15657, a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct. The latter three categories involve intentional, willful, or conscious wrongdoing of a despicable or injurious nature. Recklessness refers to a subjective state of culpability greater than simple negligence, which has been described as a deliberate disregard of the high degree of probability that an injury will occur. Recklessness, unlike negligence, involves more than inadvertence, incompetence, unskillfulness, or a failure to take precautions but rather rises to the level of a conscious choice of a course of action ... with knowledge of the serious danger to others involved in it.” (Delaney v. Baker (1999) 20 Cal.4th 23, 31–32 (quotations and citations omitted).)

The identities of other claimants, as potential witnesses, are discoverable and their limited privacy rights in their contact information is outweighed by Plaintiff’s right to relevant discovery on the issue of Defendant’s liability under the Welfare and Institutions Code. (Haft v. Lone Palm Hotel (1970) 3 Cal.3d 756, 779 (“evidence that the defendant actually knew that he was violating a safety regulation, or in this case numerous safety regulations, is surely relevant, though not indispensable . . . to prove the gross culpability of ‘wilful and wanton’ conduct.”); Fenimore v. Regents of University of California (2016) 245 Cal.App.4th 1339, 1349 (“The trier of fact should decide whether a knowing pattern and practice of understaffing in violation of applicable regulations amounts to recklessness.”).)

Finally, Defendant contends the information requested in Special Interrogatory No. 63 is protected by the attorney-client and attorney work product privileges. (Opp. at 6:2-19.) Defendant does not provide any of the relevant facts or information, either in its response or in its opposition, to evaluate the privilege claims. “The party claiming the privilege has the burden of establishing the preliminary facts necessary to support its exercise, i.e., a communication made in the course of an attorney-client relationship.” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733. See also People v. Superior Court (Bauman & Rose) (1995) 37 Cal.App.4th 1757, 1771 (“it is the burden of the party asserting the work product privilege to prove that the material in question is work product and therefore privileged.”).) “Where the privilege applies, it may not be used to shield facts, as opposed to communications, from discovery.” (Edwards Wildman Palmer LLP v. Superior Court (2014) 231 Cal.App.4th 1214, 1226.) Special Interrogatory No. 63 seeks a specific, underlying fact, not the contents of communications, and the attorney-client privilege does not appear implicated. Defendant must provide a further response either justifying its privilege objections and responding to the extent possible or, if Defendant determines it cannot do so, removing the objections and providing a substantive response without objections.

Sanctions are Warranted

Pursuant to Code of Civil Procedure section 2030.300(d), “[t]he court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, 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.”

Plaintiff seeks sanctions in the amount of $3,060.00 against Defendant The Healthcare Center of Downey, LLC, and its attorneys of record, Cowdrey Jenkins, LLP, consisting of 2 hours of paralegal time at a rate of $150.00 per hour, 1 hour of attorney for the motion and two hours of attorney time for the reply and hearing at a rate of $900.00 per hour, and the $60.00 filing fee. (Garcia Decl. ¶ 12.) The Court finds Defendant failed to act with substantial justification.

The sanctions sought are reasonable and warranted. Pursuant to Code of Civil Procedure section 2030.300(d), the Court imposes sanctions in the amount of $3,060.00 against Defendant The Healthcare Center of Downey, LLC, and its attorneys of record, Cowdrey Jenkins, LLP, jointly and severally.