Judge: Ronald F. Frank, Case: 20TRCV00302, Date: 2023-01-13 Tentative Ruling
Case Number: 20TRCV00302 Hearing Date: January 13, 2023 Dept: 8
Tentative Ruling¿
¿¿
HEARING DATE: January 13, 2023¿
¿¿
CASE NUMBER: 20TRCV00302¿¿
¿¿
CASE NAME: Zouki for America Corporation v. Prime Healthcare Centinela,
LLC, et al¿¿¿
¿¿
MOVING PARTY: Plaintiff, Zouki for America Corporation, a Delaware
Corporation.
¿¿
RESPONDING PARTY: Defendants,
Prime Healthcare Centinela, LLC and Prime Healthcare Centinela, LLC dba
Centinela Hospital Medical Center, a Delaware Limited Liability Company;
Mohammad Abdelnaser, R.N., an individual; and DOES 1 through 20
¿¿
TRIAL DATE: June 5, 2023 ¿
¿¿
MOTION:¿ (1) Motion to Compel Defendant
Prime Healthcare Centinela, LLC to Comply with Plaintiff’s Demand for
Inspection of Real Property
(2)
Monetary sanctions
¿
Tentative Rulings: (1) GRANTED in part, with time,
place, and manner restrictions as detailed below
(2)
Monetary sanctions are denied. The was
substantial justification for at least some of Defendants’ objections
¿
¿
I. BACKGROUND¿¿
¿¿
A. Factual¿¿
¿¿
On June 2, 2021, Plaintiff Zouki
for America (“Plaintiff”) filed its Third Amended Complaint (“YAC”) in
this matter against Defendant Prime Healthcare Centinela, LLC,
(hereinafter referred to as “Defendant Prime”), and Defendant Mohammad
Abdelnaser, R.N. (hereinafter referred to as “Defendant Abdelnaser”) (Defendant
Prime and Defendant Abdelnaser are hereinafter collectively referred to as
“Defendants”), asserting 8 causes of action.
On December 7, 2022, Plaintiff served Defendant Prime with a Demand
for Inspection of certain real property in the possession, custody, or control
of Defendant Prime, specifically the portions of Defendant Prime’s Centinela
Hospital that constituted the “lease premises” that Plaintiff had contracted
for in the Lease with Defendant Prime, which was executed on February 20, 2019.
Plaintiff now brings this motion asserting that because this suit is in essence
a breach of lease and unlawful eviction matter, where the events and
allegations contained in Plaintiff’s TAC occurred in the premises Plaintiff
seeks to inspect, it has good cause to inspect those “lease premises” at
Defendant Prime’s Centinela Hospital.
B. Procedural¿¿
¿
On December 16, 2022, Plaintiff filed this Motion to
Further Compel Defendant Prime Healthcare Centinela, LLC to Comply with Plaintiff’s
Demand for Inspection of Real Property. On December 30, 2022, Defendant Prime
filed an opposition. On January 6, 2023, Plaintiff filed a reply brief.
¿
¿II. MEET AND CONFER ¿¿
¿ ¿
A Motion
Compelling Further Responses requires an opportunity to meet and confer. (Cal.
Code Civ. Proc., § 2033.290 subd. (b).) Upon review of the Declaration
of¿Matthew M. Einhorn, Esq., it appears that¿Plaintiff met and conferred with
counsel for Defendant on December 7, 2022 and on December 14, 2022.
(Declaration of¿Matthew M. Einhorn, Esq. (“Einhorn Decl.”), ¶ 4.) However, Defendant Prime notes that two days
after it served its objection, Plaintiff filed this Motion. Thus, Defendant
Prime asserts that Plaintiff did not initiate any meet and confer efforts
between Prime serving its objection and the filing of this motion. (Declaration
of Andrew L. Schrader (“Schrader Decl.”), ¶ 10.) In the Court’s view, the meeting and
conferring took place before the formal objection to the formal site inspection
demand.
¿III. ANALYSIS¿
¿
California Code of Civil Procedure section 2031.010 allows
a party to inspect land or other property in the possession, custody, or
control of any other party to the action. California Code of Civil
Procedure section 2031.300, subdivision (b) a party making a demand may move
for an order compelling a response to the demand.
Under California Section 2023.030, subd. (a), “[t]he court
may impose a monetary sanction ordering that one engaging in the misuse of the
discovery process, or any attorney advising that conduct, or both pay the
reasonable expenses, including attorney’s fees, incurred by anyone as a result
of that conduct. . . . If a monetary sanction is authorized by any provision of
this title, the court shall impose that sanction 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.” Failing to
respond or to submit to an authorized method of discovery is a misuse of the
discovery process. (Code of Civ. Proc., § 2023.010.)
Here, Plaintiff asserts that good cause exists to justify its Demand
for Inspection of the “lease premises” at Defendant Prime’s Centinela Hospital
because (1) Prime refused to allow
Plaintiff to take possession of the “lease premises” on the move-in date in the
executed Lease, (2) Prime mandated that Plaintiff’s food and beverage sales
competitor, Sodexo, would staying possession of much of Plaintiff’s “lease
premises” despite the fact that the executed Lease gave Plaintiff the sole
right to occupy and possess said “lease premises,” and (3) Prime also mandated
that Sodexo would share the “lease premises” with Plaintiff while Sodexo
operated a competing food and beverage service against Plaintiff, despite the Lease
provision that granted Plaintiff the exclusive rights to Defendant Prime’s
Centinela Hospital’s retail food and beverage service.
Based on these allegations, Plaintiff argues that the only way for it
to gather compelling and meaningful evidence of the size of the “lease
premises” it was supposed to occupy and possess by the terms of the executed
Lease versus the actual, reduced size of the “lease premises” that Plaintiff
argues Defendant forced it to occupy, is for Plaintiff to physically enter on
to the “lease premises” and inspect, measure, and record/photograph the size
discrepancy.
In opposition, Defendant asserts that Plaintiff is seeking to conduct
an on-site inspection of the hospital premises more than three years after the
lease was terminated and that such an inspection would not yield any relevant
evidence regarding the events from more than three years ago, would be
disruptive to the Hospital, and would also violate California’s hospital
regulations. Defendant claims that Plaintiff has not exhausted or considered
any less burdensome alternatives. Defendant contends that Plaintiff has
proposed that Mr. Zouki, three of Zouki’s litigation attorneys, and an
unidentified additional number or experts, photographers, videographers, and current/former
employees be allowed to conduct an on-site inspection of the Hospital for
approximately five hours.
Courts are empowered to impose
limits on authorized methods of discovery.
For example, the Court is empowered to “limit the scope of discovery if
it determines that the burden, expense, or intrusiveness of that discovery
clearly outweighs the likelihood that the information sought will lead to the
discovery of admissible evidence.” Code
Civ. Proc., § 2017.020(a). Further, the Court
is authorized to “restrict the frequency or extent of use of a discovery method”
upon determining that the discovery sought is “obtainable from some other
source that is more convenient, less burdensome, or less expensive.” Id. § 2019.030(a).
Defendant alleges the requested inspection would be burdensome
because it would have to protect the privacy of the Hospital’s employees and
patients by ceasing operations and removing any persons from the rooms being
inspected. Defendants also claim that the request would violate California’s
regulations for visitation at hospitals under the current All Facilities Letter
(“AFL”), which notes that the hospital must ensure that visitors “physically
distance from healthcare personnel and other patients/residents/visitors that
are not part of their group at all times while in the facility. Next, Defendant
claims that Plaintiff’s inspection of any kitchen facilities would violate
California’s food-safety statutes, which state that “the person in charge shall
ensure that persons unnecessary to the food facility operation shall not be
allowed in the food preparation, food
storage, or ware washing areas.” (Cal. Health & Safety Code § 113945.1.)
Defendant notes that Plaintiff’s justifications for the inspection is
that it claims that it must conduct inspection because Defendant Prime
permitted Sodexo, another company, to occupy a portion of the premises leased
to Plaintiff. However, Defendant asserts that when it asked Plaintiff to
identify the rooms that Defendant failed to provide, Plaintiff refused to do
so. Defendant also claims Plaintiff failed to show how pictures of the
Hospital, more than three years after the lease was terminated, would show
whether it was deprived of space more than three years ago.
Defendant acknowledges that Plaintiff claimed it needed to determine
if certain of its kitchen equipment remained on the leased, but noted that
Plaintiff has not provided an explanation of why it needs a five-hour on-site
inspection to determine this, noting interrogatories or photographs of the
premises would show any fixtures on the property. \
The
Court’s tentative is to GRANT a site inspection but restrict its time, place
and manner in order to address Defendant’s legitimate concerns. The Court’s tentative restriction and limitations
are as follows:
1. The
Site inspection will be scheduled on January 18, 2023, after lunchtime, to
minimize disruption of existing concession and food service operations such as
those occupied now or in the past by Sodexo.
The Court tentatively sets the time of the inspection to be commence at
2:00 p.m. and conclude by 5:00 p.m., and be limited to 3 hours duration;
2. Plaintiff
may select up to 3 persons to participate in the site inspection, one of which
may be counsel, one of which may be Mr. Zouky (or other employee or officer of Plaintiff),
and a third person to perform photograph and/or videography consistent with this
ruling. The third person may but is not
required to be a lawyer or an employee/officer of Plaintiff;
3. Any
of Plaintiff’s 3 site inspectors may photograph and measure areas including the
kitchen identified for occupancy and use by Plaintiff in Plaintiff’s now-terminated
Lease as well as areas currently occupied by the existing food service vendor, but
Plaintiff’s inspectors shall not photograph any human being in any inspected
areas;
4. Defendant
is entitled to have up to three representatives present, one of whom should be
a member of defense counsel’s lawfirm, and they shall take reasonable steps to
ensure that any human beings present in the areas to be measured or
photographed are politely asked to relocate temporarily while photography/videography
and measurement take place;
5. Photography
and videography may include taking images of any fixtures in the inspected
areas as reasonably necessary to demonstrate that Plaintiff’s fixtures are or
are not remaining in the leased premises, and to take images of the drain(s)
allegedly used as a toilet. Audio
recording of the site inspection will not be permitted, neither by Plaintiff’s representatives
nor by Defendants’ representatives;
6. Plaintiff’s
site inspectors as well as any defense representatives present shall comply
with any then-existing health, safety, COVID or other contagious disease protocols
applicable to hospital visitors, including the use of face masks and including
any security screening for weapons.
Defendant shall provide a list of such protocols to counsel for
Plaintiff no later than 3:00 p.m. January 16, 2023, notwithstanding the fact
that said date is a federal and state holiday;
7. With
respect to inspection, measurement, videography or photography of any kitchen
facility or food preparation area, Plaintiff’s inspectors and Defendants’ representatives
shall enter such areas only with additional safety measures including the
wearing of disposable gloves and footwear coverings applicable to the existing
vendor’s employees. Defendant shall provide
such protective measures or equipment for themselves and for Plaintiff’s
inspectors, so as to minimize any risk of contamination of areas covered by
Health & Safety Code § 113945.1.
¿¿
IV. CONCLUSION¿¿
¿¿¿
For the foregoing reasons, Plaintiff’s
Motion to Compel Demand for Inspection is GRANTED in part, with specific
details listed above as to restrictions and limitations the Court has
determined to be appropriate in light of Defendant’s objections. Monetary sanctions are denied.
¿¿¿
Moving party is ordered to give
notice.¿¿¿¿
¿¿¿