Judge: Peter A. Hernandez, Case: 24STCV12120, Date: 2025-01-16 Tentative Ruling
Case Number: 24STCV12120 Hearing Date: January 16, 2025 Dept: 34
1. Plaintiff Derek Brinkerhoff’s Motion to Compel Further Responses to Special Interrogatories, Set One, is MOOT as to Nos. 18, 19, 20, 21, and 22 and GRANTED as to Nos. 14 and 15.
2. Plaintiff Derek Brinkerhoff’s Motion to Compel Further Responses to Requests For Production, Set One, is MOOT as to Nos. 10, 15, 22-23, 25-26, 31-32, 34-37, 39, 48-51, and 54-55, GRANTED as to Nos. 3, 17, 18, 20, 24, 41, and 47, and DENIED as to No. 42.
Defendant shall provide further
responses to Plaintiff’s SROGs and RPDs within fifteen (15) days of the
issuance of this court’s order.
Plaintiff’s Request for
Sanctions is GRANTED. Monetary sanctions are AWARDED in favor of Plaintiff and
against Defendant in the total amount of $2,570.00.
Background
On May 14, 2024, Plaintiff Derek Brinkerhoff (“Plaintiff”) filed a complaint against Defendants Vernon Healthcare Center, LLC and Rockport Administrative Services, LLC (“Defendants”) arising from Defendants care for Plaintiff alleging causes of action for:
1.
Statutory
Elder/Dependent Adult Abuse/Neglect;
2.
Negligence;
and
3.
Violation
of Health & Safety Code § 1430.
On July 3, 2024, Defendants filed an answer to Plaintiff’s complaint.
On November 4, 2024, the court granted Plaintiff’s request for an
Informal Discovery Conference. On November 12, 2024, the court ordered
Defendants to produce discovery responses.
On December 16, 2024, Plaintiff filed this Motion to Compel Further
Responses to Special Interrogatories, Set One (“SROGs Motion”), and Motion to
Compel Further Responses to Requests For Production, Set One (“RPDs Motion”),
as to Defendant Vernon Healthcare Center, LLC (“Vernon”) and Requests for
Sanctions. On January 3, 2024, Vernon filed oppositions to Plaintiff’s motions.
On January 8, 2025, Plaintiff filed replies.
On receipt of a response
to form interrogatories, special interrogatories, and/or demand requests, the
propounding and/or demanding party “may move for an order compelling further
response” if: (1) the response is evasive or incomplete; (2) the representation
of inability to comply is inadequate, incomplete, or evasive; or (3) the
objection is without merit or too general. (Code Civ. Proc., §§ 2030.300, subd.
(a), 2031.310, subd. (a).)
The moving party must
demonstrate a “reasonable and good faith attempt” at an informal resolution of
each issue presented. (Code Civ. Proc., §§ 2016.040, 2033.290, subd. (b)(1).)
“In lieu of a separate statement required under the California Rules of Court,
the court may allow the moving party to submit a concise outline of the
discovery request and each response in dispute.” (Code Civ. Proc., § 2033.290,
subd. (b)(2).)
Notice of the motion must
be provided “within 45 days of the service of the verified response, or any
supplemental verified response, or any specific later date to which the
requesting party and the responding party have agreed in writing . . .” (Code
Civ. Proc., § 2030.300, subd. (c).) The responding party has the burden of
justifying the objections to the requests. (Coy v. Superior Court (1962) 58
Cal.2d 210, 220-221.)
Special Interrogatories
Plaintiff moves to compel further responses to SROGs Nos. 14, 15, 18, 19, 20, 21, and 22. (SROGs Motion, at pp. 5-7.)
In opposition, Vernon contends that further responses to SROGs Nos. 18, 19, 20, 21, and 22 were served to Plaintiff on January 3, 2024. (SROGs Opp., at p. 2.)
As there is no indication that Plaintiff disputes that the further responses to SROGs Nos. 18, 19, 20, 21, and 22 are sufficient, the court finds that Plaintiff’s motion as to these SROGs is moot. The court will focus on SROGs Nos. 14 and 15 which did not receive additional responses from Vernon. The following are the SROGs at issue:
SPECIAL INTERROGATORY NO. 14:
In the year prior to PLAINTIFF’s
admission, had ANY employee that cared for PLAINTIFF at YOUR FACILITY ever been
disciplined or reprimanded for ANY thing related to their clinical care of
residents?
SPECIAL INTERROGATORY NO. 15:
If ANY employee that cared for
PLAINTIFF at YOUR FACILITY has ever been disciplined or reprimanded in the year
prior to PLAINTIFF’s admission into the FACILITY, for anything related to
clinical care, please IDENTIFY that employee.
Plaintiff contends that knowledge of an employee’s unfitness is directly relevant to Plaintiff’s claim for elder abuse. (SROGs Motion, at p. 5.) Plaintiff argues that disciplinary action taken against a nursing home employee is relevant in determining if a corporate employer ratified or authorized wrongful conduct. (Ibid.)
In response to SROGs Nos. 14 and 15, Vernon provided the following response:
RESPONSES TO SPECIAL INTERROGATORIES NOS. 14 AND 15:
Objections: Violates third parties’
rights to privacy. Overbroad in scope. The search for such information would be
burdensome, harassing, and oppressive. Seeks information that is not relevant
to the issues framed in the Complaint and is not reasonably calculated to lead
to the discovery of admissible evidence.
In opposition, Vernon argues that
SROGs Nos. 14 and 15 are overbroad in that they are not narrowed to any
particular issue of clinical care that is relevant to Plaintiff’s case which is
both burdensome and oppressive. (SROGs Opp., at p. 3.) Additionally, Vernon
contends that these interrogatories invoke both employee privacy and patient
privacy. (Ibid.) Vernon argues that it would have to filter through more
than 200 employee records to identify if they were disciplined or reprimanded
and then ascertain if the cause of the reprimand was related to any clinical
care which requires invading a patient’s privacy right. (Ibid.) In turn,
Vernon proposes that Plaintiff first identifies the employees who he contends
breached the nursing standard of care and may have caused him injury to then
seek discovery regarding their employment records. (Id., at p. 4.)
The court finds that Plaintiff’s SROGs Nos. 14 and 15 sufficiently request information that is relevant to this matter and are sufficiently narrow in scope. Plaintiff’s SROGs request for information regarding only those employees that cared for Plaintiff. It is not overly burdensome to request that Vernon identifies those employees who have been disciplined or reprimanded that also cared for Plaintiff. Ascertaining the reason for discipline will not add any undue burden on Vernon as the records would be easily accessible. Lastly, Plaintiff’s request does not require Vernon to identify any private patient information regarding the circumstances surrounding the employee’s disciplinary record. Following the discovery search, Vernon needs to provide a yes or no answer to SROG No. 14 and a list of names for SROG No. 15, only if applicable.
The court grants Plaintiff’s SROGs
Motion as to Nos. 14 and 15.
Requests for Production
Plaintiff moves to compel further
responses to RPDs Nos. 3, 10, 15, 17-18, 20, 22-26, 31-32, 35-37, 39, 41-42, 47-51,
and 54-55. (RPDs Motion, at pp. 5-10.)
In opposition, Vernon contends that further responses to RPDs Nos. 10, 15, 22-23, 25-26, 31-32, 35-37, 39, 48-51, and 54-55 were served to Plaintiff on January 3, 2024. (RPDs Opp., at p. 1.)
As there is no indication that Plaintiff disputes that the further responses to RPDs Nos. 10, 15, 22-23, 25-26, 31-32, 34-37, 39, 48-51, and 54-55 are sufficient, the court finds that Plaintiff’s motion as to these RPDs is moot. The court will focus on the remaining RPDs which did not receive additional responses from Vernon: Nos. 3, 17-18, 20, 24, 41-42, and 47.
REQUEST FOR PRODUCTION OF DOCUMENTS NO. 3:
ANY and ALL correspondence
(including email and text messages) between YOU and PLAINTIFF or his/her family
at ANY time.
In
opposition, Vernon contends that it did not object to this request and is
continuing to search for such documents to provide further responses. (RPDs
Opp., 2.)
As such, the court will grant
Plaintiff’s motion as to RPD No. 3.
REQUEST FOR PRODUCTION OF DOCUMENTS NO. 17:
ANY and ALL DOCUMENTS from ANY
employee that left (i.e. quit or was terminated) the FACILITY in the year prior
to PLAINTIFF’s admission into the FACILITY which reference and/or contain ANY
criticisms about the quality of care or staffing levels at the FACILITY.
REQUEST FOR PRODUCTION OF DOCUMENTS NO. 18:
ANY and ALL DOCUMENTS from ANY
employee that left (i.e. quit or was terminated) the FACILITY while PLAINTIFF
was residing there which reference and/or contain ANY criticisms about the
quality of care or staffing levels being provided at the FACILITY.
REQUEST FOR PRODUCTION OF DOCUMENTS NO. 20:
ANY complaints (including grievance logs and/or concern forms) received by YOU from a resident and/or their family related to the quality of care at the FACILITY for the last two (2) years.
As to RPDs 17, 18, and 20, Plaintiff argues that the documents requested are directly relevant to what issues Vernon was on notice of regarding patient care which would support Plaintiff’s allegations that Vernon was on notice of understaffing and other complaints related to the quality of patient care at the facility, yet consciously ignored this knowledge and allowed residents, including plaintiff to be neglected. (RPDs Motion, at pp. 6-7.) Plaintiff also argues that the documents requested are not protected by any privileges. (Ibid.) Further, Plaintiff contends that he is not requesting the personnel file of any employee and agrees that the names of any employees or patients and families can be redacted. (Ibid.)
In opposition, Vernon contends that RPDs 17, 18, and 20 are overbroad and vague as to the terms “quality of care” and “staffing levels”. (RPDs Opp., at pp. 2-4.) As such, Vernon argues that the RPDs are not reasonably calculated to lead to the discovery of admissible evidence. (Ibid.)
The court finds that Plaintiff’s RPDs Nos. 17, 18, and 20 are sufficiently narrowly tailored for Vernon to respond and are relevant to Plaintiff’s claims. As such, the court the court will grant Plaintiff’s motion as to RPDs No. 17, 18, and 20.
REQUEST FOR PRODUCTION OF DOCUMENTS NO. 24:
ANY and ALL Resident Council Minutes from FACILITY in the last 2 years.
As to RPD No. 24, Plaintiff argues that California Health & Safety Code 1418.2(a) provides that nursing home must have a resident council and that such council maintain meeting minutes which may provide Plaintiff relevant information regarding what issues did Vernon have notice of. (RPDs Motion, at p. 8.) Plaintiff agreed that the names of any residents present at those meetings can be redacted. (Ibid.)
In opposition, Vernon contends that the request is overbroad and irrelevant since Plaintiff was discharged from the facility on November 29, 2023 and the request requires minutes from the past 2 years. (RPDs Opp., at p. 4.)
The court finds that RPD No. 24 is relevant to Plaintiff’s claims and not overly broad. As such, the court grants Plaintiff’s motion as to RPD No. 24.
REQUEST FOR PRODUCTION OF DOCUMENTS NO. 41:
ANY monthly reports exchanged with
a clinical consultant related to care being rendered at the FACILITY in the
last two years.
REQUEST FOR PRODUCTION OF DOCUMENTS NO. 42:
Please produce ALL DOCUMENTS which
reference in ANY way an increase or decrease in the FACILITY’s staffing levels
in the last 2 years.
As to RPD No. 42, Plaintiff argues
that documents referencing staffing levels are relevant in determining whether
Vernon met the minimum 3.50 nursing hours per patient per day required by
California Code of Regulations title 22, section 72329.10. (RPDs Motion, at p.
9.)
In opposition, Vernon argues that
the request is overbroad in scope and vague. (Opp., at pp. 4-5.) Additionally,
Vernon argues that daily records of staffing levels were already produced to
Plaintiff making it unclear what other information Plaintiff seeks. (Ibid.)
In reply, Plaintiff argues that
there might be other documents that may include information referencing an
increase or decrease in staffing levels. (RPDs Reply, at p. 3.)
The court finds that Vernon
sufficiently responded to RPD No. 42. The information regarding staffing levels
is clearly present in the documents already produced. As Plaintiff only seeks a
further response in hopes to find information that may exist, the court denies Plaintiff’s
motion as to RPD Nos. 42.
REQUEST FOR PRODUCTION OF DOCUMENTS NO. 47:
ANY communications (including email) between YOU and ANY entity that was providing clinical consulting for YOU while PLAINTIFF was residing at the FACILITY.
As to RPDs Nos. 41 and 47, Plaintiff contends that the documents exchanged between any clinical consultants are relevant in determining what issues were being addressed at the nursing home which is directly relevant to Plaintiff’s claims of understaffing and failing to monitor Plaintiff.. (RPDs Motion, at p. 9.)
In opposition, Vernon contends that RPDs Nos. 41 and 47 are overbroad and irrelevant. (RPDs Opp., at pp. 4-5.) Additionally, Vernon argues that RPDs No. 41 seeks documents that are protected from discovery as quality assurance documents under Evidence Code section 1157 and 42 U.S.C. section 1395i- 3(b)(1)(B). (Id., at p. 6.)
In reply, Plaintiff argues that Evidence Code section 1157 is not applicable to RPDs Nos. 41 and 47 as the mere fact that documents may be placed in front of a medical investigative committee does not protect the documents as privileged. (RPDs Reply, at p. 4.) Plaintiff also argues that the documents exchanged with clinical consultants do not implicate any privilege because they are not documents created during quality assurance proceedings and are not generated by a medical investigative committee. (Ibid.)
Evidence
Code section 1157 protects the proceedings and records of
organized committees and peer review bodies charged with evaluating and
improving the quality of care. (Evid. Code § 1157(a).) Plaintiff’s RPDs Nos.
41 and 47 do not request information regarding the proceedings or records of a
medical investigative committee, but rather third parties providing consulting
services to Vernon. As such, the court grants Plaintiff’s motion as to RPDs
Nos. 41 and 47.
Sanctions
“The court shall impose a
monetary sanction . . . against any party, person, or attorney who
unsuccessfully makes or opposes a motion to compel 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.” (Code
Civ. Proc., § 2033.290, subd. (d).)
Plaintiff requests
monetary sanctions in the amount of $1,160.00 and $1,460.00 against Vernon for
a total of $2,620.00. (SROGs Motion, at p. 8; RPDs Motion, at p. 10.)
Vernon argues that sanctions are not warranted as
there was substantial justification in opposing this motion and asserting the
objections to Plaintiff’s requests. (SROGs Opp., at p. 5; RPDs Opp., at p. 10.)
Since the court has
granted parts of Plaintiff’s motions, sanctions are warranted. Additionally,
the court does not have evidence before it that would indicate there is
substantial justification or other circumstances that would make the imposition
of a sanction unjust. Vernon had been ordered by the court to produce discovery
by December 6, 2024, and yet further responses were not produced until January
3, 2024. (Minute Order dated November 12, 2024.)
Thus, the court must impose monetary sanctions. (Code Civ. Proc., §§ 2030.300,
subd. (d); 2031.310, subd. (h); 2033.290, subd. (d).)
Plaintiff’s counsel
declares: (1) that they charge $350.00 per hour in this matter; (2) that they
worked a total of 7.00 hours on drafting the motions; and (3) that they incurred
a $60.00 filing fee per motion. (SROGs Moore Decl., ¶16; RPDs Moore Decl., ¶
19.) A total of $2,570.00 in attorney’s fees and costs.
The court finds that the
hourly rate and hours claimed are reasonable. A total of $2,570.00 in monetary
sanctions are awarded to Plaintiff against Vernon
.Conclusion
1. Plaintiff Derek Brinkerhoff’s Motion to Compel Further Responses to Special Interrogatories, Set One, is MOOT as to Nos. 18, 19, 20, 21, and 22 and GRANTED as to Nos. 14 and 15.
Defendant shall provide further
responses to Plaintiff’s SROGs and RPDs within fifteen (15) days of the
issuance of this court’s order.
Plaintiff’s Request for Sanctions
is GRANTED. Monetary sanctions are AWARDED in favor of Plaintiff and against
Defendant in the total amount of $2,570.00.