Judge Thomas Falls, Case BC717134 2022-08-08 Tentative Ruling

______________________________________________________________________________

Plaintiff Carmen Noriega’s, a disabled adult, by and through her Guardian Ad Litem, Maria

Febus, Motion to Compel Further Responses to Requests for Production of Documents, Two and

Responding Party: Unopposed (due nine court days before hearing / Tuesday, July 26, 2022)

Plaintiff Carmen Noriega’s, a disabled adult, by and through her Guardian Ad Litem,

Maria Febus, Motion to Compel Further Responses to Requests for Production of

Documents, Two is DENIED. Request #74 is to be modified. No monetary sanctions

This is a medical malpractice case. Plaintiff Carmen M. Noriega, a disabled adult, by and through her Guardian Ad Litem, Maria Febus (“Plaintiff”) alleges the following against Defendants The Shadow Mountain Country Home (“Assisted Living Home” or “Shadow Mountain”), Elna Villaflor, Ernesto Moreno, Andrea Batta, Chino Valley Medical Center Auxiliary (“Hospital”), Veritas Health Services, Inc., Ashok Madahar, M.D. (“Doctor Madahar”) (collectively, “Defendants”): Plaintiff is 79 years old. Sometime in May of 2018, Plaintiff’s daughter, Maria Febus, admitted Plaintiff to the Assisted Living Home. Upon vising Plaintiff after four days, Plaintiff’s daughter noticed signs of potential assault or molestation. Plaintiff’s daughter called the ambulance wherein Plaintiff was then taken to the Hospital. At the Hospital, Dr. Madahar failed to perform a thorough exam and provide the appropriate care.

On January 17, 2020, Plaintiff filed a Motion Pursuant to CCP Section 377.31 to Substitute Maria Febus in Place of Deceased Plaintiff Carmen M. Noriega because Plaintiff died on January 11, 2019.

On May 12, 2020, Plaintiff filed an ‘Amendment to Complaint,’ naming The Country Home Manors, LLC as Doe 1.

On June 8, 2020, Plaintiff Maria Febus, as Successor in Interest to Carmen M. Noriega, and Maria Febus, individually (“Plaintiff”) filed her First Amended Complaint (“FAC”) against Defendants:[1]

On July 21, 2020, Defendants Villaflor and The Country Home Manors, LLC filed their Answer.

On December 2, 2022, Defendants Chino Valley Medical Center Auxiliary, Dr. Ashok, and Veritas Health Services were dismissed.

On December 30, 2020, Defendants, A Right Place for Seniors, Inc. and Andrea Batta, filed a Notice of Settlement.

On February 16, 2021, Defendant The Shadow Mountain Country Home filed its Answer.

On February 2, 2021, Plaintiff filed a Request for Dismissal as to both Defendant A Right Place for Seniors, Inc. and Andrea Batta with prejudice.

On April 7, 2021, Defendant the Country Home Manors, LLC filed a Cross-Complaint against Defendants Chino Valley Medical Center, Ashok Madahar, Veritas Health Services, Inc., and Ontario Healthcare Center for:[3]

On May 18, 2022, Plaintiff filed an Amended Motion Seeking Leave to Amend Complaint, which the court granted on June 13, 2022.

On June 23, 2022, Plaintiff filed her Second Amended Complaint (“SAC”) asserting the following causes of action:

3. RECKLESS OR WILLFUL NEGLECT OF AN ELDER AND/OR NEGLECT WITH FRAUD UNDER THE ELDER ABUSE AND DEPENDENT ADULT CIVIL PROTECTION ACT (CACI 3104)

6. VIOLATION OF CALIFORNIA CODE OF REGULATIONS TITLE 22, SECTION 87506 AND DESTRUCTION OF EVIDENCE

On July 11, 2022, Plaintiff filed the instant Motion to Compel Further Responses to Requests for Production of Documents, Two and For Monetary Sanctions in the Amount of $3,661.65 (“Motion”).

(a) On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply:

(2) A representation of inability to comply is inadequate, incomplete, or evasive.

Additionally, motions to compel further responses must be accompanied by a separate statement containing the requests and the responses, verbatim, as well as reasons why a further response is warranted. (Cal. Rules of Court, rule 3.1345(a).) However, CCP section 2031.310 subdivision (b) subsection (3) provides that “[i]n 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.”

Furthermore, “[a] motion under subdivision (a) [of CCP § 2031.310] shall comply with both of the following: (1) The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand. (2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040.”[4]

Request # 61: “PLAINTIFF’S original file maintained by COUNTRY and/or SHADOW.” Defendant’s response and objection to Request # 61: “Objections: Vague and Ambiguous Objection as to ‘original file’ maintained by COUNTRY and/or SHADOW. Compound Objection. Objection on the ground that that the document request was asked and answered as the file was produced by previous request.”

Here, the court finds the objection that the request is “vague and ambiguous” to be meritless as it clearly is seeking Plaintiff’s file. However, as for the objection that the files were previously produced, Plaintiff has not provided legal authority as to why it is entitled to the original copy.

Request # 67: “The original copies of documents identified as Bate Stamp number 00003 from PLAINTIFF’S original file maintained by COUNTRY and/or SHADOW.”

Defendant’s response and objection to Request # 67: “Objection: Vague and Ambiguous Objection as to “original copy.” Objection on the ground that it has been asked and answered as the response was produced in previous discovery request. Compound Objection.”

Request # 68: “A copy of the DOCUMENT titled ‘ResidentProgressNotes.doc’ identified as being located at: C:\DocumentsandSetings\Owner\Desktop\NewResidentPackage\ResidentProgressNotes.doc on Bate Stamp number 00002 from PLAINTIFF’S original file maintained by COUNTRY and/or SHADOW”

Defendant’s response and objection to Request # 68: “Objection on the ground that it has been asked and answered as the response was produced in previous discovery request. Compound Objection.”

Here, Plaintiff explains that the objection “on the ground that that it has been asked and answered as the response was produced in previous discovery request” is meritless because “Plaintiff has the right to conduct an inspection of the document titled “ResidentProgressNotes.doc”, Bate Stamp number 00003 from Plaintiff’s original file, which identifies its specific location on the bottom of the copy of the digital document that has previously been produced as being located on Defendants computer hard drive in the “C:\” drive at: C:\DocumentsandSetings\Owner\Desktop\NewResidentPackage\ResidentProgressNotes.doc . Plaintiff has the right to inspect the document that exists in Defendants’ computer hard drive in the “C:\” drive rather than the scanned digital copy that the Defendants previously produced.”

For similar reasons above, notably that Plaintiff has not shown “good cause” or supported its position with legal authority, the motion is denied as to request #68.

Request # 69: ““A copy of the DOCUMENT titled ‘ResidentProgressNotes.doc’ identified as being located at: C:\DocumentsandSetings\Owner\Desktop\NewResidentPackage\ResidentProgressNotes.doc on Bate Stamp number 00003 from PLAINTIFF’S original file maintained by COUNTRY and/or SHADOW”

Defendant’s response and objection to Request # 69: “Objection on the ground that it has been asked and answered as the response was produced in previous discovery request. Compound Objection.”

Here, for similar reasons iterated above, the motion is denied as to request #69.

Request # 74: “All DOCUMENTS referring to any water leaks in YOUR and ERNESTO MORENO’s bathroom during 2018.”

Defendant’s response and objection to Request # 74: “Objection: Vague and Ambiguous Objection as to ‘any leaks’; Irrelevance Objection. Overbreadth Objection with ‘any leaks.’”

Here, the court agrees that the request is overbroad. As Plaintiff itself states, “Defendant Ernesto Moreno testified that the records from Country Home Manor were stored in the Defendants’ office in their house and they were damaged by a water leak from the bathroom which was next to their office.” (Motion p. 10 of 69 of PDF.)[5] Thus, any request for documents should be limited to that leak in the bathroom, not the Defendant’s entire 2018 plumbing history.

Therefore, request #74 is to be modified to be limited to the identified water leak in 2018.

Request # 75: “All DOCUMENTS referring to any water leaks in YOUR and ERNESTO MORENO’s residence during 2018.”

Defendant’s response and objection to Request # 75: “Objection: Vague and Ambiguous Objection as to ‘any leaks’; Irrelevance Objection. Overbreadth Objection with ‘any leaks.’”

Here, for similar reasons above, the request is overbroad, irrelevant, and inarguably duplicative of Request #74.

Therefore, as Request #74 (subject to its modification) should provide documents referring to any water leaks in their bathroom in 2018, the request as to Request #75 denied.

All in all, it appears that Plaintiff is seeking further discovery for original copies of documents Defendant already produced. However, Plaintiff has not provided any legal authority nor shown good cause as to the why original copies of documents are warranted. Based on the foregoing, the motion is DENIED. Request #74 is to be modified.

[1] According to the FAC, Villaflor is the “owner and/or manager of the Assisted Living Home;” Defendant Ernesto Moreno is the “co-owner and/or manager” of the Assisted Living Home; Defendant Andrea Batta is an “agent of Villaflor, and she brings business [for a commission] for the Assisted Living Home and Villaflor;” Defendant A Right Place for Seniors, Inc. is Batta’s employer; and Defendant Veritas is “the parent organization of Chino Valley Medical Center.

The FAC does not mention Defendant Country Home Manors, LLC to understand its role in the instant litigation. However, as explained in Defendants’ Opposition to Plaintiff’s Motion, Defendant Country Home Manors, LLC owned and operated the now defunct The Shadow Mountain Country Home. (Opp. p. 3.) Moreover, the Opposition provides that Elna Villaflor is the former administrator of Shadow Mountain and Ernesto Moreno is Elna Villaflor’s husband. (Opp. p. 3:13-17.)

[2] This default was set aside on January 28, 2021 via a Joint Stipulation between the Parties.

[3] The cross-complaint as to Defendants Dr. Madahar, Veritas Health, and Chino Valley Medical Center was dismissed by Plaintiff, presumably because the cross-defendants were dismissed December 2020.

[4] This requirement is met. According to Plaintiff’s Counsel: “On June 14, 2022 I sent a meet and confer letter via email addressing Defendant’s meritless objections and provided Defendant until June 22, 2022 to serve supplemental responses and produce the original file, original documents, computer, hard drive and water damage documents. 21. On June 22, 2022 a mutual extension of seven (7) days was agreed to via email providing Defendant until June 29, 2022 to serve further responses and produce the original file, original documents, computer, hard drive and water damage documents and for Plaintiff to file her motion to compel. As of the filing of this motion further responses, the original file, original documents, computer, hard drive and water damage documents have not been served or produced.”

[5] The motion is not paginated.