Judge Thomas Falls, Case 22PSCV01953 2023-03-20 Tentative Ruling

PLAINTIFF’S MOTION TO COMPEL DEPOSITION OF THE PERSON MOST KNOWLEDGEABLE OF ROCKPORT ADMINISTRATIVE SERVICES LLC

Responding Party: Defendants ROCKPORT ADMINISTRATIVE SERVICES, LLC; POMONA NURSING AND HEALTHCARE CENTRE, LLC; LOS ANGELES NURSING HOMES, LLC; PACIFIC HEALTHCARE HOLDINGS, INC.; and POMONA HEALTHCARE & WELLNESS CENTER, LLC (“Opposing Defendants”)

PLAINTIFF’S MOTION TO COMPEL DEPOSITION OF THE PERSON MOST KNOWLEDGEABLE OF ROCKPORT ADMINISTRATIVE SERVICES LLC is GRANTED in part (i.e., Defendants produce responsive documents for requests Nos. 1-3) and DENIED in part (i.e., as to deposition of PMK). Request No. 4 is modified. As for monetary sanctions, the court declines to impose monetary sanctions.

This matter arises from an alleged elder abuse. Plaintiff WILMA VASQUEZ alleges that she was admitted to Defendants’ facility from Casa Colina on October 14, 2022. Upon admission to the facility, Plaintiff suffered from Thyroid issues that required a tracheostomy and trachea tube, which requires regular catheter suctioning to maintain a clear airway. However, due to Defendants’ alleged failures to use the correct catheter suction, to assess throat trauma, and to advise the physician of blood clots being suctioned from her trachea tube, on November 3, 2022, Plaintiff was found unresponsive. As a result, Plaintiff “suffered [a] gruesome injury . . . extreme and unnecessary pain and suffering, loss of personal dignity, shame and humiliation, degradation, anguish and emotional trauma.” (Complaint ¶42.)

On November 21, 2022, Plaintiff filed suit against Defendants SHLOMO RECHNITZ; ROCKPORT ADMINISTRATIVE SERVICES, LLC, POMONA NURSING AND HEALTHCARE CENTRE, LLC; LOS ANGELES NURSING HOMES, LLC; PACIFIC HEALTHCARE HOLDINGS, INC.; and POMONA HEALTHCARE & WELLNESS CENTER, LLC for (1) Dependent Adult Abuse (Pursuant to the Elder Adult and Dependent Adult Civil Protection Act – Welfare and Institutions Code §§15600, et seq.) 2) Negligence.

On February 3, 2023, the court denied Plaintiff’s Motion For Trial Preference Pursuant To California Code Of Civil Procedure § 36.

There is an OSC regarding why a discovery referee should not be appointed on calendar for 6/26.

Plaintiff seeks to compel the deposition of Defendants’ PMK because Defendants refused to produce and failed to appear at the lawfully served notice deposition scheduled for February 1, 2023. (Motion p. 1.)

In Opposition, Defendants explain that narrative is inaccurate: On February 14, 2023 (after scheduling conflicts) the deposition of the PMK of Pomona Healthcare & Wellness, LLC went forward. (Opp. p. 3.) As for the request for production, Defendants state that they maintain their asserted objections.

Here, as for the PMK, the court agrees with Defendants that it is unwarranted to produce the PMK for a second time. In fact, though Plaintiff’s Reply references the February 14, 2023 deposition, it does not expressly acknowledge the fact that its motion is predicated upon a different factual scenario (i.e., motion states a PMK was not produced whereas a PMK was produced).

Therefore, as persons previously deposed may not be deposed again (absent a court order based on a showing of good cause),[1] Plaintiff’s motion is denied as to the second deposition of the PMK.

As for documents 1,[2] 2,[3] 3,[4] and 4[5]—which form the basis of the Separate Statement—Defendants aver that they asserted no objections to requests 1, 2, and 3. However, a review of Defendants’ own separate statement indicates that they did assert objections based upon evidence code 1157, attorney-client privilege and third parties’ privacy rights. And to the extent that they did assert objections, the court agrees with Plaintiff that they are boilerplate objections (i.e., pages of case law without an analysis). As for request #3, the Separate Statement indicates that no response was provided.

Therefore, as Defendants bear the burden in maintaining the asserted objections (based on privilege, work product, and privacy) which they failed to do so and as Defendants failed to produce the documents pertinent to request number 3, the court GRANTS the production of documents 1, 2, and 3.

As for request for production #4, Defendants aver that it is vague and ambiguous as to the term “ensure.” And that the language is not particularized as to not include documents that are irrelevant or would infringe on privacy rights. More specifically, Defendants’ separate statement states that “[u]ntil plaintiff makes a showing of which specific employee was negligent in providing care to plaintiff resulting in the alleged injury to plaintiff, that the requested employee documents are directly relevant to this case, and that the need for these documents outweighs the specific employee’s right to privacy in the records” relying upon Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1251.) However, Puerto is inapposite because it involved a claim of wage and hour violations, causes of action which do not require a showing of gross negligence, recklessness, or other measures of intent.[6] Here, however, the claims are for elder abuse violations, which requires a showing that 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.” (Civil Code §3294(b).) That said, the discovery request is overly broad as it seeks personnel records for all persons even if they did not treat Plaintiff. Accordingly, request #4 is modified to allow the discovery of personnel record only for the employees that treated Plaintiff during her stay. Request No. 4 is also subject to a mutually agreed upon protective order. Therefore, as the inquiry is relevant as to the issue of punitive damages, the court provisionally GRANTS the request as to #4, subject to the stated modification and protective order.

Based on the foregoing, the motion is GRANTED in part (i.e., Defendants produce responsive documents for requests 1-3) and DENIED in part (i.e., as to deposition of PMK). Request No. 4 is modified and subject to a protective order.

[1] CCP section 2025.610

[2] All DOCUMENTS exchanged between YOU and the FACILITY during the time period of May 1, 2022 through December 3, 2022 which reference in whatsoever manner FACILITY staffing, census, interaction with the Department of Public Health, budgets, and/or the provision of NURSING SERVICES in the FACILITY. (The names of all residents other than the PLAINTIFF should be redacted from the production.)

[3] All DOCUMENTS made available between YOU and the FACILITY during the time period of May 1, 2022 through December 3, 2022 which reference in whatsoever manner FACILITY staffing, census, interaction with the Department of Public Health, budgets, and/or the provision of NURSING SERVICES in the FACILITY. (The names of all residents other than the PLAINTIFF should be redacted from the production.)

[4] All DOCUMENTS consisting of any management agreement, professional services agreement and/or consulting agreement between the FACILITY and the deponent which was in effect during the residency of the PLAINTIFF in the FACILITY.

[5] All DOCUMENTS reflecting efforts by YOU to ensure that the FACILITY Administrator and Director of Nursing of the FACILITY was fit to perform his or her job duties with the FACILITY during the residency of the PLAINTIFF in the FACILITY. (For purposes of these inquiries, YOU and YOUR refers individually and collectively to the defendant to whom this request is addressed and all persons acting or purporting to act on the behalf of said defendant.)

[6] “Recklessness, unlike negligence, involves more than ‘inadvertence, incompetence, unskillfulness, or a failure to take precautions’ but rather rises to the level of ‘conscious choice of a course of action . . . with knowledge of the serious danger to others involved in it.’” (See Delaney at p. 31-32.) In order to obtain the [EADACPA’s] heightened remedies, a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages. (Compare Welf & Inst. Code, § 15657 [requiring ‘clear and convincing evidence that a defendant is liable for’ elder abuse and ‘has been guilty of recklessness, oppression, fraud, or malice in the commission of the abuse’] with Civ. Code, § 3294, subd. (a) [requiring ‘clear and convincing evidence’ that the defendant has been guilty of oppression, fraud or malice].) (See Covenant Care at p. 789.) Thus, “a health care provider sued for violating the [EADACPA] must defend against allegations of egregious conduct.” (Id. at p. 787.)