Tentative Rulings

Case Number: *******1734 Hearing Date: November 22, 2022 Dept: 37

HEARING DATE: November 22, 2022

CASE NUMBER: *******1734

CASE NAME: Antonio Guerrero v. Shlomo Rechnitz, et al.

MOVING PARTIES: Defendants, Bakersfield Healthcare and Wellness Centre, LLC and Rockport Administrative Services, LLC

OPPOSING PARTY: Plaintiff, Antonio Guerrero

TRIAL DATE: July 5, 2023

PROOF OF SERVICE: OK

MOTION: Defendants’ Motion for Protective Order

OPPOSITION: November 8, 2022

REPLY: November 15, 2022

Tentative: Defendants’ motion is granted. The court issues Defendants’ requested protective order and prohibits Plaintiff from taking the deposition of Chrissy Hansen. Defendants are to give notice.

MOVING PARTIES: Plaintiff, Antonio Guerrero

OPPOSING PARTY: Defendants, Bakersfield Healthcare and Wellness Centre, LLC and Rockport Administrative Services, LLC

MOTION: Plaintiff’s Motion to Compel Deposition of Chrissy Hansen

OPPOSITION: November 8, 2022

REPLY: November 14, 2022

Tentative: Having granted Defendants’ motion for protective order, Plaintiff’s motion to compel is moot. Plaintiff’s request for sanctions is denied. Defendants are to give notice.

Background

This is an elder abuse action arising out of Plaintiff Antonio Guerrero’s (“Decedent”) residency at Defendant Bakersfield Healthcare and Wellness Centre, LLC (“Facility”). Decedent brings this action through his successor in interest, Carlos Guerrero (“Mr. Guerrero”). According to the Complaint, Defendant Rockport Administrative Services, LLC (“Rockport”) manages and controls Facility, and Defendant Steven Stroll (“Stroll”) is listed as Rockport’s manager. Plaintiff dismissed Defendant Stroll on September 2, 2022. Additionally, Defendant Shlomo Rechnitz (“Rechnitz”) is allegedly the true owner and operator of the entity-Defendants.

According to the Complaint, all Defendants acted as agents and alter egos of each other in operating Facility. Defendants failed to comply with numerous laws and regulations governing the operations of skilled nursing facilities through their actions, including by unlawfully siphoning money from Facility to Rechnitz, understaffing Facility, employing unlicensed or unqualified employees, and otherwise depriving Facility of essential care services for its patients. Specifically, Defendants allegedly failed to provide Decedent adequate care during his residency despite knowledge that Decedent had severe pressure ulcers and required assistance with activities of daily living. Defendants’ alleged failure to provide care for Decedent resulted in Decedent’s injuries and his ultimate death.

Plaintiff’s Complaint alleges the following causes of action: (1) elder abuse, (2) negligent hiring and supervision. Plaintiff dismissed the second cause of action on April 25, 2022.

On April 5, 2022, Defendants’ motion to compel further responses to form interrogatories, set one and supplemental interrogatories, set one from Plaintiff was granted in part (“April 5 Order”). Specifically, Plaintiff was ordered to provide verified responses to special interrogatories Nos. 48, 52, and 56 among other discovery requests, within 30 days and pay sanctions of $1,160.00. Defendants provided Plaintiff notice of ruling on April 7, 2022.

On June 17, 2022, Defendants moved for terminating sanctions against Plaintiff on the grounds that he failed to comply with the April 5 Order to provide responses and pay sanctions. On November 2, 2022, Defendants’ motion for sanctions was granted in part with respect to monetary sanctions, and otherwise denied.

On October 25, 2022, Plaintiff filed moved to compel the deposition of Chrissy Hansen (“Hansen”).

On October 26, 2022, Defendants filed an ex parte application for a protective order precluding Plaintiff from taking the deposition of Hansen or, in the alternative, for a protective order limiting the scope of her deposition. On October 28, 2022, the court instructed the parties to submit further briefing. The motion for said protective order now comes before the court, as well as Plaintiff’s motion to compel the Hansen deposition.

Meet and Confer Efforts

A motion for a protective order under CCP 2025.420 must be accompanied by a meet and confer declaration. (CCP 2025.420(a).) ¹ The declaration must state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented in the motion. (CCP 2016.040.) “[A] reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel…. Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294.)

Defendants submit the declaration of their counsel, Melanie J. Ely (“Ely”) to demonstrate that they have fulfilled their statutory meet and confer obligations prior to filing the instant motion. Ely attests, and incorporates as exhibits, the meet and confer correspondences and responses on October 7 and 10, 2022 between counsel and Plaintiff’s counsel, ultimately disagreeing as to the protective order. (Ely Decl. 3-4, Exs. A-B.)

The Ely Declaration is sufficient for purposes of CCP 2025.420.

Discussion

I. Legal Authority

CCP 2025.420(a) provides, in relevant part: “Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order.” “The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Id., 2025.420(b).) “The court shall 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.” (CCP 2017.020.)

II. Analysis

In Liberty Mutual Insurance Co. v. Superior Court, the Court of Appeal held that “when a plaintiff seeks to depose a corporate president or other official at the highest level of corporate management, and that official moves for a protective order to prohibit the deposition, the trial court should first determine whether the plaintiff has shown good cause that the official has unique or superior personal knowledge of discoverable information.” (Liberty Mutual Insurance Co. v. Superior Court (1992) 10 Cal.App.4th 1282, 1289.) As the Liberty Mutual Court explained, it is sensible to prevent a plaintiff from deposing a corporate president who lacks knowledge or involvement in the litigation, without the intermediate steps of seeking discovery from lower level employees more involved in everyday corporate operations. (Ibid.) The Court of Appeal further held that “it amounts to an abuse of discretion to withhold a protective order when a plaintiff seeks to depose a corporate president, or corporate officer at the apex of the corporate hierarchy, absent a reasonable indication of the officer’s personal knowledge of the case and absent exhaustion of less intrusive discovery methods.” (Id. at p. 1287.)

A. Whether Hansen Is An Apex Official

Defendants contend Hansen is an apex official who does not have personal knowledge of the facts of Plaintiff’s case. (Ex Parte, 6-10.)

Defendants contend “Plaintiff has not shown that he sought, but has been unable to obtain, any information known by Ms. Hansen through less intrusive means.” (Ex Parte, 8.) Defendants further affirm Hansen “has no unique or superior personal knowledge pertaining to Bakersfield’s Governing Body.” (Ex Parte, 9.) Defendants further explain Plaintiff has already noticed depositions of two other individuals on the Governing Body of Bakersfield who are not senior officers at Rockport, and they

“would have the same information that Ms. Hansen would have regarding the Governing Body, and in fact, those two were on the Governing Body before Ms. Hansen and they therefore would have more information.” (Ex Parte, 10.)

In opposition, Plaintiff contends Defendants have failed to file a separate statement in conjunction with their moving papers, in violation of Rules of Court Rule 3.1345. (Opposition, 1.) However, as Defendants’ moving papers are not for a motion to compel or quash a production request, Plaintiff’s contentions are inaccurate.

Additionally, Plaintiff contends that Defendants have waived any objections to the deposition notice of Hansen regarding her status as an apex official. (Opp., 1-2.) Plaintiff cites Sinaiko Healthcare Consulting, Inc. v. Pac. Healthcare Consultants (2007) 148 Cal.App.4th 390 to contend “[p]arties cannot add late objections after service of initial discovery responses absent a court order pursuant to motion for relief from waiver.” (Id.) However, Sinaiko involves untimely responses to interrogatories, and not a deposition notice.

Plaintiff also contends Hansen is “one of only three members of the Governing Body of [Bakersfield] during the residency of [Plaintiff];” and “Hansen was actually responsible for establishing and implementing policies regarding the day-to-day management and operations of the Facility.” (Opp., 2-3.) Plaintiff also contends Hansen’s review of Bakersfield’s overall rating “is notice regarding by the Elder Abuse and Dependent Adult Civil Protection Act,” and such notice is necessary to show a claim for elder abuse. (Opp., 3-8.)

“The willful disregard of Mr. Melitti and Ms. Hanson, as managing agents of Bakersfield Healthcare and Wellness Centre, and as to Ms. Hanson Rockport, of the chronic understaffing of Bakersfield is of course relevant in this EADACPA action.” Plaintiff contends as is “[t]he financial malfeasance of Defendant, along with its co-defendants based on unrealistic financial controls and budgeting calculated to divert funds required for the minimum required care to residents of the defendant facility from such care to the unjust enrichment of the defendants.” And Hansen’s ratification or authorization as “an officer, a director, or a managing agent” of such conduct must be proven “by clear and convincing evidence” to sustain such a claim. (Opp., 8-10.)

Plaintiff thus contends Hansen is not an apex official as “Hansen has very specific duties regarding the operation of the defendant facility and therefore has superior and/or exclusive knowledge or facts that are directly relevant to the subject matter of this action.” (Opp., 10.) However, Plaintiff fails to explain what specific and/or exclusive duties or knowledge Hansen has.

In Reply, Defendants again contend Hansen is an apex official as a corporate officer for Rockport, and further explain that the deposition of one of the lower-level witnesses went forward on November 9, 2022. (Reply, 3-4.)

“At his deposition Mr. Melliti was asked how often the governing body would meet, what they would talk about (he responded that they would talk about patient care, deficiencies, staffing and surveys), and they did not talk about finances or the census. No follow up questions were asked! So, plaintiff had a governing body member at his disposal, but all of this alleged important information pointed out in plaintiff’s opposition was just glossed over in his deposition. Now, plaintiff wants to take an officer’s deposition. This is harassing. Plaintiff has not provided any proof that Ms. Hansen has any unique information relevant to the case that a lower-level employee does not have.” (Reply, 4.)

The court agrees with Defendants that Hansen is an apex official. Liberty Mutual does not stand for the proposition that an official was required to have no limits on his or her powers to be deemed an apex official. Plaintiff has also cited no authority for the proposition that Defendants have waived such an objection to this deposition notice.

For these reasons, the court finds that Hansen is an apex official, and that Defendants are potentially entitled to a protective order regarding her deposition. The court will turn towards the parties’ arguments regarding Hansen’s personal knowledge of this action.

B. Personal Knowledge

Defendants contend their motion must be granted because Hansen does not have unique, personal knowledge regarding Plaintiff’s complaints or this action, as discussed above. (Ex Parte, 9-11.) As further discussed above, Defendants have identified two other lower-level witnesses who could also speak to the notice and governing decisions of the Governing Body of Bakersfield. (Id.) Defendants further contend Plaintiff has failed to exhaust less intrusive means of discovery, “Plaintiff has not served interrogatories concerning the nature and extent of Ms. Hansen’s knowledge of discoverable information.” (Ex Parte, 10.) In the alternative, Defendants contend the deposition of Hansen should be limited in scope to Hansen’s involvement on Bakersfield’s Governing Body. (Ex Parte, 11.)

In opposition, Plaintiff contends, as discussed above, Hansen does have superior or exclusive knowledge, the information is relevant to this matter, and will be useful in establishing an elder abuse claim. (Opposition, 3-13.) Additionally, Plaintiff contends sanctions against Defendants should be imposed for an alleged failure “to meet and confer in any meaningful fashion.” (Opposition, 14-15.)

In reply, Defendants reiterate Plaintiff has not demonstrated that Hansen has unique, personal knowledge of facts relating to this action because Plaintiff deposed another lower-level witness, who also served on the Governing Body, but failed to ask about any of the allegedly relevant information now requested of Hansen. (Reply, 4-5.) Additionally, Defendants contend a meaningful meet and confer did occur, where Defendants offered a stipulation to move forward with the Hansen Deposition but were declined. (Reply, 5.)

The court finds that Plaintiff has not demonstrated that Hansen has unique, personal knowledge of any facts regarding this action. It is undisputed that Hansen has never met Plaintiff, only served on the Governing Body for a brief period during Plaintiff’s time with Bakersfield, and was not the sole decisionmaker in this matter. Defendants have identified two other lower-level witnesses, one already deposed, who would have an entirely similar basis of information of which Defendant could have inquired, but failed to do so. This is insufficient to permit Hansen’s deposition under the requirements of Liberty Mutual.

For these reasons, Defendants’ motion is granted. The court issues Defendants’ requested protective order and prohibits Plaintiff from taking the deposition of Chrissy Hansen. Defendants are to give notice.

Having granted Defendants’ motion on this basis, the court further denies Plaintiff’s request for sanctions.

Conclusion

Defendants’ motion is granted. The court issues Defendants’ requested protective order and prohibits Plaintiff from taking the deposition of Chrissy Hansen. Defendants are to give notice.

PLAINTIFF’S MOTION TO COMPEL DEPOSITION OF CHRISSY HANSEN, AND FOR SANCTIONS AS AGAINST DEFENDANTS

Having granted Defendant’s motion for a protective order precluding the deposition of Chrissy Hansen by Plaintiff, the court now denies Plaintiff’s motion to compel the deposition of Chrissy Hansen as Plaintiff’s motion is now moot. The court further denies Plaintiff’s request for sanctions.

Defendants are to give notice.

Case Number: *******1734 Hearing Date: November 2, 2022 Dept: 37

HEARING DATE: November 2, 2022

CASE NUMBER: *******1734

CASE NAME: Antonio Guerrero v. Shlomo Rechnitz, et al.

MOVING PARTIES: Defendants, Bakersfield Healthcare and Wellness Centre, LLC and Rockport Administrative Services, LLC

OPPOSING PARTY: Plaintiff, Antonio Guerrero

TRIAL DATE: July 5, 2023

PROOF OF SERVICE: OK

MOTION: Defendants’ Motion for Terminating Sanctions

OPPOSITION: October 20, 2022

REPLY: October 26, 2022

Tentative: Defendants’ motion is denied with respect to the request for terminating, evidentiary and issue sanctions. The motion is granted in part with respect to the request for monetary sanctions, in the amount of $5,444.00. Defendants are to give notice.

Background

This is an elder abuse action arising out of Plaintiff Antonio Guerrero’s (“Decedent”) residency at Defendant Bakersfield Healthcare and Wellness Centre, LLC (“Facility”). Decedent brings this action through his successor in interest, Carlos Guerrero (“Mr. Guerrero”). According to the Complaint, Defendant Rockport Administrative Services, LLC (“Rockport”) manages and controls Facility, and Defendant Steven Stroll (“Stroll”) is listed as Rockport’s manager. Additionally, Defendant Shlomo Rechnitz (“Rechnitz”) is allegedly the true owner and operator of the entity-Defendants.

According to the Complaint, all Defendants acted as agents and alter egos of each other in operating Facility. Defendants failed to comply with numerous laws and regulations governing the operations of skilled nursing facilities through their actions, including by unlawfully siphoning money from Facility to Rechnitz, understaffing Facility, employing unlicensed or unqualified employees and otherwise depriving Facility of essential care services for its patients. Specifically, Defendants allegedly failed to provide Decedent adequate care during his residency despite knowledge that Decedent had severe pressure ulcers and required assistance with activities of daily living. Defendants’ alleged failure to provide care for Decedent resulted in Decedent’s injuries and his ultimate death.

Plaintiff’s Complaint alleges the following causes of action: (1) elder abuse, (2) negligent hiring and supervision.

On April 5, 2022, Defendants’ motion to compel further responses to form interrogatories, set one and supplemental interrogatories, set one from Plaintiff was granted in part (“April 5 Order”). Specifically, Plaintiff was ordered to provide verified responses to special interrogatories nos. 48, 52, and 56 among other discovery requests, within 30 days and pay sanctions of $1,160.00. Defendants provided Plaintiff notice of ruling on April 7, 2022.

Defendants now move for terminating sanctions against Plaintiff on the grounds that he failed to comply with the April 5 Order to provide responses and pay sanctions. Plaintiff opposes the motion.

Discussion

Pursuant to CCP 2030.030, the court may impose sanctions against anyone “engaging in conduct that is a misuse of the discovery process.” Specifically, the 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.” (CCP 2030.030(a).) Additionally, the court may impose issue sanctions, evidence sanctions, or terminating sanctions. (CCP 2030.030(b)-(d).)

It is well established that the primary purpose of discovery sanctions is curative, not punitive. (Welgoss v. End (1967) 252 Cal.App.2d 982, 992; Caryl Richards, Inc. v. Superior Court (1961) 188 Cal.App.2d 300, 303-304.) Generally, the discovery statutes evince an incremental approach to sanctions, starting with monetary sanctions and ending with the ultimate sanction of dismissal. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) “Although in extreme cases a court has the authority to order a terminating sanction as a first measure [citations], a terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective.” (Lopez v. Watchtower Bible and Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604-605 (Lopez).)

A terminating sanction is a draconian remedy, and it is appropriate only when less severe alternatives will not vindicate the court’s authority and the purpose of the subject discovery. (Rail Services of America v. State Com. Ins. Fund (2003) 110 Cal.App.4th 323, 332; Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 531, 564, disapproved on other grounds by Mileikowsky v. West Hills Hosp. and Medical Center (2009) 45 Cal.4th 1259, 1273; New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1423.)

Defendants contend that terminating sanctions against Plaintiff are warranted because Plaintiff has engaged in misuse of the discovery process by providing further insufficient discovery responses to special interrogatories, set one, Nos. 48, 52, and 56 when compelled further, more specifically providing further responses “without providing sufficient identification of the particular documents from which Plaintiff’s responses may be ascertained.” (Motion, 6-9.) Alternatively, Defendants contend that evidence and/or issue sanctions are warranted against Plaintiff which prohibit him from support his claims for the first cause of action or punitive damages, or introducing “any documentary evidence” relating to those claims at trial. (Motion, 8-18.) Additionally, Defendants request monetary sanctions in the amount of $5,444.00 in connection with this motion. (Motion, 18-19.)

In opposition, Plaintiff contends he has fully complied with the court’s April 5 Order “by specifically identifying—by Bates Number and document title—the responsive documents as called for by the interrogatories.” (Opposition, 4-5.)

Plaintiff also contends that even if Plaintiff has not complied with the April 5 Order, “any failure to comply could not possibly be willful in that Plaintiff attempted in good faith attempted [sic] to comply with the Court’s order...” (Opp., 7; citing Aghaian v. Minassian (2021) 64 Cal.App.5th 603.) However, Defendants in their reply correctly explain a showing of willful conduct is not needed to granting sanctions for a party’s conduct. (Reply, 6-7.)

Plaintiff further also contends monetary sanctions are unwarranted here as any apparent failure was “entirely inadvertent” and a “misunderstanding of the Court’s order to specifically identify the responsive documents.” (Opp., 8.) However, Plaintiff fails to explain how any misunderstanding was inadvertent here, as the court’s April 5 Order specifically cited Deyo v. Kilbourne (1978) 84 Cal.App.3d 771 and explained how Plaintiff’s failure to identify “particular documents from which Plaintiff’s responses may be ascertained.” (April 5 Order, 12-13.)

Lastly, Plaintiff requests monetary sanctions against moving Defendants, contending their motion is without merit. (Opp., 8.) Finding Defendants’ motion to not be devoid of merit, the court denies Plaintiff’s request for monetary sanctions entirely.

In reply, Defendants again explain Plaintiff’s failure to provide further identifying information has meant a failure to comply with this court’s April 5 Order. (Reply, 4-6.) Defendants also dispute Plaintiff’s incorrect claim that Defendants had not filed a separate statement by showing a separate statement was filed on June 17, 2022. (Reply, 8.) Defendants also again contend Plaintiff’s repeated failure to obey the court order merits more severe sanctions, pursuant to the Code of Civil Procedure. (Reply, 7.)

The court finds that good cause does not exist to grant terminating, issue, or evidence sanctions against Plaintiff. Although Defendants are correct that Plaintiff has not obeyed the court’s April 5 Order, the court finds that failure to further respond to three interrogatories, at most, does not constitute grounds to grant terminating sanctions. The court also does not order issue or evidentiary sanctions for this reason, as it finds that Plaintiff’s conduct does not warrant such sanctions.

The court finds monetary sanctions are again warranted against Plaintiff and his counsel pursuant to Plaintiff’s incomplete and evasive further responses, and the failure to obey this court’s April 5 Order. Defendants submit the declaration of Melanie J. Ely in support of their request for monetary sanctions. (CCP 2030.300(d).) Ely attests that Ely’s billing rate is $220 and that counsel spent 15.2 hours preparing this motion and anticipate spending an additional $1,540.00 reviewing the opposition, drafting the reply, and appearing at the hearing. (Ely Decl. 19.) Ely also attests that Defendants incurred a $60 filing fee in connection with this motion, and a $500.00 fee in connection with the court reporter. (Id.) The court issues monetary sanctions against Plaintiff and his counsel in an amount totaling $5,444.00. (Ely Decl. 19.)

Conclusion

Defendants’ motion is denied with respect to the request for terminating, evidentiary and issue sanctions. The motion is granted in part with respect to the request for monetary sanctions, in the amount of $5,444.00. Defendants are to give notice.

Case Number: *******1734 Hearing Date: September 15, 2022 Dept: 37

CASE NUMBER: *******1734

CASE NAME: Antonio Guerrero v. Shlomo Rechnitz; Steven Stroll; Bakersfield Healthcare and Wellness Centre, LLC; Rockport Administrative Services, LLC

MOVING PARTIES: Defendants Shlomo Rechnitz, Bakersfield Healthcare and Wellness Centre, LLC, and Rockport Administrative Services, LLC

OPPOSING PARTY: Plaintiff, Antonio Guerrero

TRIAL DATE: January 17, 2023

PROOF OF SERVICE: OK

MOTION: Defendants’ Motion to Consolidate

OPPOSITION: August 18, 2022

REPLY: September 8, 2022

Tentative: Moving Defendants’ motion is denied without prejudice. Plaintiff is to give notice.

Background

This is an elder abuse action arising out of the residency of Plaintiff Antonio Guerrero’s (“Decedent”) at Defendant Bakersfield Healthcare and Wellness Centre, LLC (“Facility”). Decedent brings this action through his successor in interest, Carlos Guerrero (“Mr. Guerrero”). According to the Complaint, Defendant Rockport Administrative Services, LLC (“Rockport”) manages and controls Facility, and Defendant Steven Stroll (“Stroll”)[1] is listed as Rockport’s manager. Additionally, Defendant Shlomo Rechnitz (“Rechnitz”) is allegedly the true owner and operator of the entity-Defendants.

According to the Complaint, all Defendants acted as agents and alter egos of each other in operating Facility. Defendants failed to comply with numerous laws and regulations governing the operations of skilled nursing facilities through their actions, including by unlawfully siphoning money from Facility to Rechnitz, understaffing Facility, employing unlicensed or unqualified employees and otherwise depriving Facility of essential care services for its patients. Specifically, Defendants allegedly failed to provide Decedent adequate care during his residency despite knowledge that Decedent had severe pressure ulcers and required assistance with activities of daily living. Defendants’ alleged failure to provide care for Decedent resulted in Decedent’s injuries and his ultimate death.

Plaintiff’s Complaint alleges two causes of action: (1) elder abuse; and (2) negligent hiring and supervision. Plaintiff dismissed without prejudice the second cause of action on April 25, 2022.

On August 10, 2021, Plaintiff filed a Notice of Related Case indicating that this action was related to Carlos Guerrero, et al. v. Shlomo Rechnitz., et al. (Case number 21STCV28665) (“Second Action”), filed August 4, 2021.

Defendants Shlomo Rechnitz, Bakersfield Healthcare and Wellness Centre, LLC, and Rockport Administrative Services, LLC (collectively referred to as “Moving Defendants”) now move to consolidate this action with the Second Action. Plaintiff opposes the motion.

Discussion

“When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” (CCP 1048.) “[A]ctions may be consolidated, in the discretion of the court, whenever it can be done without prejudice to a substantial right.” (Jud Whitehead Heater Co. v. Obler (1952) 111 Cal.App.2d 861, 867.)

Additionally, California Rules of Court, rule 3.350(a)(1) requires the notice of a motion to consolidate meet the following procedural requirements:

(A) List all named parties in each case, the names of those who have appeared, and the names of their respective attorneys of record;

(B) Contain the captions of all the cases sought to be consolidated, with the lowest numbered case shown first; and

(C) Be filed in each case sought to be consolidated.

Moving Defendants contend that this action must be consolidated with the Second Action because the two cases have common questions of law and fact. (Motion, 4-6.) Specifically, Moving Defendants contend that common questions of law and fact exist because the factual allegations made in each complaint are nearly identical and arose from the same incident when Guerrero allegedly suffered abuse and neglect while under the care of Defendants. (Id.) Moving Defendants also explain that in the Notice of Related Action that was filed in this matter on August 10, 2021, and which the court granted, Plaintiff explained that both actions “involve one of the same Defendants and are based on the same or similar claims, and arise from the same or substantially identical transactions, incidents, or events requiring the determination of the same or substantially identical questions of law or fact.” (Motion, 5, Exh. C, 1:22-25.)

Moving Defendants further contend “both actions arise from the same alleged injuries suffered by plaintiff/decedent, Carlos Guerrero while he resided at [Defendant Facility]” and involve common issues of law and fact “whether the facility provided proper care to plaintiff/decedent and if he suffered any injuries as a result of the alleged improper care.” (Motion, 7.) Moving Defendants also note that “the only difference in the factual issues regarding the two cases is whether that same care rose to the level of elder abuse/neglect...” (Id.) Moving Defendants also contend that since the defendants and witnesses are the same for both actions, it will also “be more economical and convenient for the Court not to have two different trials based on the same facts...” (Motion, 8.) Moving Defendants contend the same witnesses will be called both actions, as well as the same experts, medical providers, exhibits, witnesses, and same motions in limine to said evidence. (Id.)

Moving Defendants contend that based on Plaintiff’s meet and confer, any concerns over different causes of actions, different burdens of proof, and different damages can be specifically addressed through jury instructions and Special Verdict Forms. (Motion, 9.) Also, even though “there are different damages allowed, all of the potential damages would flow from the same facts/conduct so there would be no reason to keep the two Actions separated just because of the different allowable damages.” (Id.) Also, Moving Defendants assert that since all causes of action revolve around the pressure ulcers and underlying medical conditions of plaintiff/ decedent, discovery in both actions will be identical, with different considerations of the evidence based on the relevant inquires. (Motion, 9-10.) Moving Defendants contend that plaintiffs will have “less pretrial work” if consolidated, and will lead to a shorter trial because the “overlapping witnesses will testify once...with the one exception of a wrongful death causation expert.” (Motion, 10.)

In opposition, Plaintiff contends that the two actions involve different procedural considerations and involve two separate claims for damages—on behalf of the decedent by specific heirs and by plaintiffs not acting as part of the victim’s estate. (Opp., 1.) Plaintiff further explains that the plaintiffs in the two actions are not the same parties. (Opp., 2.) Plaintiff also explains that the evidentiary standards for the two actions are different. (Opp., 2-3.) Plaintiff further contends that there “are also distinct causation issues in the two cases.” (Opp., 4.) As a result, Plaintiff contends “the discovery and presentation of evidence in the wrongful death case will be different from that in the survival action.” (Id.)

Plaintiff further contends that discovery in the two actions will necessarily be different, as the survival action will also involve evidence of malice, recklessness, and/or fraud as to the punitive damages request. (Id.) “Discovery in this regard is massive and literally non-existent in the wrongful death action.” (Opp., 5.) Further, Plaintiff points out that the wrongful death action will involve an inquiry into the conduct of the heirs and an analysis of their loss, where the survival action will not. (Opp., 6.) Lastly, Plaintiff contends that the Notice of Related Action is not “determinative of the issue of consolidation,” as “there are numerous legal and factual issues that are different and distinct in the two cases.” (Id.)

In reply, Moving Defendants contend that even though the actions involve different code sections, they “still involve common questions of law or fact.” (Reply, 2-3.) Moving Defendants further contend that the wrongful death plaintiffs will have to testify in the wrongful death action, “so they will not be burdened with extra testimony if the cases are consolidated.” (Reply, 3.) Moving Defendants also argue that any concern for prejudicial confusion, or issues of different allowable damages or proving causation, can be addressed through an extra expert, jury instructions and verdict forms, stating “hundreds of trials occur with both a dependent adult abuse cause of action and a wrongful death cause of action...and this case is no different from all of those other cases.” (Id.) Moving Defendants further point to Plaintiff’s discovery responses to assert that discovery of the dependent adult abuse case will indeed be similar to the wrongful death action, as Plaintiff here also alleges that Defendants’ conduct caused Guerrero’s death. (Reply, 4.) Moving Defendants reiterate their contentions that the two complaints involve substantially identical allegations, and as such, claim that “discovery will also nearly be the same, with perhaps a couple of extra wrongful death questions and the added depositions of the wrongful death plaintiffs, but again, this discovery would have to occur anyways in the wrongful death case.” (Reply, 5.)

The court has reviewed the Complaint in the Second Action agrees that common questions of law and fact exist in both actions. The court also notes that this action and the Second Action have been deemed related and involve identical defendants. As such, the court agrees with Moving Defendants that the consolidating of the two actions will lead to greater judicial economy and avoid duplicate testimony of many witnesses.

However, the court also notes that the motion to consolidate has not been filed in Second Action as required by California Rules of Court, Rule 3.350(a)(1)(C).

Thus, Moving Defendants’ motion is denied without prejudice.

Conclusion

Moving Defendants’ motion is denied without prejudice. Plaintiff is to give notice.

Case Number: *******1734 Hearing Date: April 18, 2022 Dept: 37

HEARING DATE: April 18, 2022

CASE NUMBER: *******1734

CASE NAME: Antonio Guerrero v. Shlomo Rechnitz, et al.

MOVING PARTIES: Defendant, Steven Stroll, specially appearing

OPPOSING PARTY: Plaintiff, Antonio Guerrero

TRIAL DATE: January 17, 2023

PROOF OF SERVICE: OK.

PROCEEDING: Motion by Defendant Steven Stroll (specially appearing) to Withdraw Unauthorized General Appearance by Defendant’s Attorney, and to Quash Service of Summons and Complaint

OPPOSITION: None filed

REPLY: April 11, 2022, statement of non-opposition

TENTATIVE: Defendant’s Motion is granted. Defendant Rockport’s counsel to give notice.

Background

This is an elder abuse action arising out of Plaintiff Antonio Guerrero’s (“Decedent”) residency at Defendant Bakersfield Healthcare and Wellness Centre, LLC (“Facility”). Decedent brings this action through his successor in interest, Carlos Guerrero (“Mr. Guerrero”). According to the Complaint, Defendant Rockport Administrative Services, LLC (“Rockport”) manages and controls Facility, and Defendant Steven Stroll (“Stroll”) is listed as Rockport’s manager. Additionally, Defendant Shlomo Rechnitz (“Rechnitz”) is allegedly the true owner and operator of the entity-Defendants.

According to the Complaint, all Defendants acted as agents and alter egos of each other in operating Facility. Defendants failed to comply with numerous laws and regulations governing the operations of skilled nursing facilities through their actions, including by unlawfully siphoning money from Facility to Rechnitz, understaffing Facility, employing unlicensed or unqualified employees and otherwise depriving Facility of essential care services for its patients. Specifically, Defendants allegedly failed to provide Decedent adequate care during his residency despite knowledge that Decedent had severe pressure ulcers and required assistance with activities of daily living. Defendants’ alleged failure to provide care for Decedent resulted in Decedent’s injuries and his ultimate death.

Plaintiff’s Complaint alleges the following causes of action: (1) elder abuse, (2) negligent hiring and supervision.

Defendant Steven Stroll moves to have his unauthorized general appearance withdrawn and to have the service of summons on him quashed.

Discussion

I. Legal Standard

“If an attorney at law, having no authority to do so, enter the appearance of a defendant in an action without the service of jurisdictional process, and the fact of the want of the authority be made to appear, such proceeding is void as to the defendant, whose appearance has been so entered.” (Garrison v. McGowan (1874) 48 Cal. 592, 599-600.) In Wilson v. Barry (1951) 102 Cal.App.2d 778, the court affirmed the trial court’s order granting defendants’ motion to withdraw appearances made on defendants’ behalf. A motion to withdraw a general appearance is appropriate if the appearance was in fact unauthorized by the defendant. (Id. at 780.) In Chitwood v. County of Los Angeles (1971) 14 Cal.App.3d 522, 528, the court recognized that a motion to withdraw an unauthorized appearance is appropriate when the appearance was unauthorized. Although the Chitwood court found that, in the circumstances before it, the defendant had consented to the general appearance, the court acknowledged that a motion to withdraw a general appearance is a valid motion. (Id.)

)

II. Discussion

Defendant submits declarations from counsel, Defendant Rockport’s agent for service of process and Defendant Stroll. They show that counsel was not authorized by Stroll and Rockport’s agent for service was not authorized to accept service by Stroll. Therefore, the general appearance is withdrawn.

As Rockport’s agent for service of process was not Stroll’s agent, service on that agent was not proper. Stroll also attests that he has not lived or worked in California since December 2016, so he is not a resident of California and does not have a business address in California. Accordingly, the delivery of the summons to Rockford’s agent was not valid service on Stroll, and that service is quashed.

Conclusion

Defendant’s Motion is granted. Defendant Rockport’s counsel to give notice.

Case Number: *******1734 Hearing Date: April 12, 2022 Dept: 37

HEARING DATE: April 12, 2022

CASE NUMBER: *******1734

CASE NAME: Antonio Guerrero v. Shlomo Rechnitz, et al.

MOVING PARTIES: Defendants, Bakersfield Healthcare and Wellness Centre, LLC and Rockport Administrative Services, LLC

OPPOSING PARTY: Plaintiff, Antonio Guerrero

TRIAL DATE: January 17, 2023

PROOF OF SERVICE: OK.

PROCEEDING: Motion to Compel Plaintiff’s Further Responses to Requests for Production of Documents, Set One; Request for Sanctions in the Amount of $2,260.00 Against Plaintiff and His Attorney of Record

OPPOSITION: February 15, 2022

REPLY: February 22, 2022

TENTATIVE: Defendants’ Motion and Request for is denied.

Background

This is an elder abuse action arising out of Plaintiff Antonio Guerrero’s (“Decedent”) residency at Defendant Bakersfield Healthcare and Wellness Centre, LLC (“Facility”). Decedent brings this action through his successor in interest, Carlos Guerrero (“Mr. Guerrero”). According to the Complaint, Defendant Rockport Administrative Services, LLC (“Rockport”) manages and controls Facility, and Defendant Steven Stroll (“Stroll”) is listed as Rockport’s manager. Additionally, Defendant Shlomo Rechnitz (“Rechnitz”) is allegedly the true owner and operator of the entity-Defendants.

According to the Complaint, all Defendants acted as agents and alter egos of each other in operating Facility. Defendants failed to comply with numerous laws and regulations governing the operations of skilled nursing facilities through their actions, including by unlawfully siphoning money from Facility to Rechnitz, understaffing Facility, employing unlicensed or unqualified employees and otherwise depriving Facility of essential care services for its patients. Specifically, Defendants allegedly failed to provide Decedent adequate care during his residency despite knowledge that Decedent had severe pressure ulcers and required assistance with activities of daily living. Defendants’ alleged failure to provide care for Decedent resulted in Decedent’s injuries and his ultimate death.

Plaintiff’s Complaint alleges the following causes of action: (1) elder abuse, (2) negligent hiring and supervision.

Now, Defendants Facility and Rockport move to compel Plaintiff’s further responses to Requests for Production, Set One within twenty (20) days of this Court’s Order, and additionally request monetary sanctions in the amount of $2,260.00 against Plaintiff and his attorney of record, payable within twenty (20) days of this Court’s Order.

Discussion

I. Legal Standard

“Any party may obtain discovery . . . by inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control of any other party to the action.” (Code Civ. Proc., 2031.010, subd. (a).)

“The party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following: (1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities[;] (2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item[; or] (3) An objection to the particular demand for inspection, copying, testing, or sampling.” (Code Civ. Proc., 2031.210, subd. (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: (1) A statement of compliance with the demand is incomplete[;] (2) A representation of inability to comply is inadequate, incomplete, or evasive[; or] (3) An objection in the response is without merit or too general.” (Code Civ. Proc., 2031.310, subd. (a).)

A demanding party’s motion for an order compelling a further response must “set forth the facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., 2031.310, subd. (b)(1).) Further, a demanding party’s motion for an order compelling a further response must “be accompanied by a meet and confer declaration under Section 2016.040.” (Id., 2031.310, subd. (b)(2).) Pursuant to Section 2016.040, “[a] meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Id., 2016.040.)

A demanding party’s motion for an order compelling a further response must, additionally, be accompanied by a separate statement. (Cal. Rules of Court, rule 3.1345, subd. (a)(3).) The separate statement must comply with the requirements set forth in California Rules of Court, rule 3.1345, subdivision (c). (Id., rule 3.1345, subd. (c).)

“Except as provided in subdivision (j), the 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 further response to a demand, 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., 2031.310, subd. (h).)

II. Discussion

Defendants Facility and Rockport (hereinafter, “Defendants”) move to compel Plaintiff’s further responses to Requests for Production, Set One, Request Nos. 5, 6, 13, and 25 through 32. In Defendants’ Reply, Defendants inform this Court that, following the filing of the present Motion, Plaintiff served sufficient supplemental responses to Request Nos. 5, 6, and 13. (Reply, at p. 3:15-21.) Accordingly, Defendants state that the present Motion is withdrawn with respect to Request Nos. 5, 6, and 13; however, Requests Nos. 25 through 32 remain in dispute. (Id. at p. 3:21.)

A. Meet and Confer

The Court finds Defendants have sufficiently met and conferred in good faith prior to filing the present Motion, in compliance with Code of Civil Procedure section 2031.310, subdivision (b)(2). (Code Civ. Proc., 2031.310, subd. (b)(2).)

On October 25, 2021, Plaintiff served verified responses to Defendants’ Requests for Production, Set One. (Ely Decl., 2-3.) Thereafter, on November 16, 2021, Defendants sent a detailed meet and confer letter to Plaintiff regarding Plaintiff’s alleged deficient discovery responses. (Id. 5, Ex. D.) Defendants’ meet and confer letter discussed each individual discovery response and communicated the reasons for which a further response would be required from Plaintiff. (Ibid.) Following this detailed discussion, Defendants stated, “Please provide further responses with documents by November 29, 2021. While we intend to keep discovery disputes out of court, if we are required to file a motion to compel, we will . . . . Should you have any questions or require a reasonable extension, please feel free to contact me. Thank you for your anticipated cooperation in this matter.” (Ibid.)

One day later, on November 17, 2021, Plaintiff sent a response to Defendants’ meet and confer letter. (Ely Decl., 6, Ex. E.) Plaintiff responded to each of Defendants’ contentions regarding the necessity of a further response as to each Request in dispute. Plaintiff agreed to provide a further response to Request Nos. 14 and 19. (Ibid.) However, with respect to the remaining Requests, Plaintiff, maintained that the responses provided constitute Code-compliant responses and, thus, a further response is not warranted. (Ibid.)

Subsequently, on December 7, 2021, Defendants, unsatisfied with Plaintiff’s refusal to provide a further response to a majority of the Requests in dispute, sent Plaintiff a second meet and confer letter informing Plaintiff that the parties “need to set an Informal Discovery Conference related to [P]laintiff’s insufficient responses to Requests for Production,” Set One. (Ely Reply Decl., Ex. F.) Defendants inquired as to Plaintiff’s counsel’s availability and, additionally, inquired whether Plaintiff would agree to stipulate to extend the deadline to file a motion to compel a further response. (Ibid.) On the same date, Plaintiff responded to Defendants’ correspondence, stating that Plaintiff is available on December 23, 2021 for an Informal Discovery Conference—a date beyond the deadline to file a motion to compel a further response—and, additionally stated, that Plaintiff would not stipulate to an extension of the time to file a motion to compel a further response. Given Plaintiff’s lack of availability and unwillingness to extend the deadline for a motion to compel a further response, Defendants were unable to resolve the present dispute informally and were prompted to file the present Motion.

Based on the foregoing, the Court finds Defendants have sufficiently met and conferred in good faith prior to filing the present Motion, in compliance with Code of Civil Procedure section 2031.310, subdivision (b)(2). (Code Civ. Proc., 2031.310, subd. (b)(2).)

B. Requests for Production, Set One, Request Nos. 25 through 31

Requests for Production, Set One, Request No. 25 states as follows: “Any and all writings (as defined by Evidence Code section 250) which evidence, refer, relate or pertain to your contention in paragraph 44 of your complaint that you were left in your urine and feces for extended periods of time while at defendant’s facility.” (Ely Decl., Ex. A.)

Requests for Production, Set One, Request No. 26 states as follows: “Any and all writings (as defined by Evidence Code section 250) which evidence, refer, relate or pertain to your contention in paragraph 45 of your complaint that the facility staff “untruthfully” told you or anyone acting on your behalf that “nothing was wrong”. (Ely Decl., Ex. A.)

Requests for Production, Set One, Request No. 27 states as follows: “Any and all writings (as defined by Evidence Code section 250) which evidence, refer, relate or pertain to your contention in paragraph 44 of your complaint that the facility failed to provide you with adequate and proper personal hygiene.” (Ely Decl., Ex. A.)

Requests for Production, Set One, Request No. 28 states as follows: “Any and all writings (as defined by Evidence Code section 250) which evidence, refer, relate or pertain to your contention in paragraph 46 of your complaint that the facility failed to provide you with adequate hydration and nutrition.” (Ely Decl., Ex. A.)

Requests for Production, Set One, Request No. 29 states as follows: “Any and all writings (as defined by Evidence Code section 250) which evidence, refer, relate or pertain to your contention in paragraph 46 of your complaint that the facility failed to implement your care plans.” (Ely Decl., Ex. A.)

Requests for Production, Set One, Request No. 30 states as follows: “Any and all writings (as defined by Evidence Code section 250) which evidence, refer, relate or pertain to your contention in paragraph 56 of your complaint that the facility failed to update your care plans.” (Ely Decl., Ex. A.)

Requests for Production, Set One, Request No. 31 states as follows: “Any and all writings (as defined by Evidence Code section 250) which evidence, refer, relate or pertain to your contention in paragraph 46 of your complaint that the facility failed to implement your doctor’s orders.” (Ely Decl., Ex. A.)

In response to Requests for Production, Set One, Request Nos. 25 through 31, Plaintiff provides an identical response, stating: “After a diligent search and reasonable inquiry all documents within the care, custody or control of the responding party as of the date of this response are served concurrently herewith.” (Ely Decl., Ex. B.) In response to Request Nos. 25 through 31, Plaintiff produced Decedent’s entire medical chart composed during his stay with Defendant Facility, totaling approximately 17,285 pages. (Ely Decl., 8.)

Defendants move to compel Plaintiff’s further response to Request Nos. 25 through 31 because Plaintiff’s responding document production is fatally broad. Defendants argue that Request Nos. 25 through 31 request documents responsive to specific, particular questions. Defendants argue that, in response, Plaintiff has failed to produce documents specifically responsive to each Request, but rather, has opted to produce Plaintiff’s entire medical chart composed during his approximate seven (7) year stay with Defendant Facility. Defendant argues Plaintiff must provide a further response to each Request, where Plaintiff produces only those documents responsive to each of Defendants’ respective Requests, as opposed to producing 17,285 pages of documents and leaving the heavy lifting to Defendants.

The Court disagrees a further response is warranted with respect to Request Nos. 25 through 31. Code of Civil Procedure section 2031.310, subdivision (a) provides, an order compelling a further response to a request for production of documents will be warranted where the moving party demonstrates one (1) of the following three (3) circumstances: (1) the responding party’s statement of compliance with a demand is incomplete; (2) the responding party’s representation of an inability to comply is inadequate or evasive; or (3) the responding party has made an objection that is without merit or is too general. (Code Civ. Proc., 2031.310, subd. (a)(1)-(3).) Here, Defendants do not contend that Plaintiff’s responses to Request Nos. 25 through 31 constitute incomplete statements of compliance (Code Civ. Proc., 2031.310, subd. (a)(1)), inadequate or evasive statements regarding Plaintiff’s inability to comply with the Requests (Code Civ. Proc., 2031.310, subd. (a)(2)), or unmeritorious or general objections (Code Civ. Proc., 2031.310, subd. (a)(3). Rather, Defendants move to compel Plaintiff’s further response to Request Nos. 25 through 31 on the ground the documents produced in response to each Request are too voluminous and are not entirely responsive to each Request. However, Defendants cite no statutory authority which would permit an Order compelling Plaintiff’s further response on this ground. Additionally, while Defendants cite to Deyo v. Kilbourne (1978) 84 Cal.App.3d 771 (“Deyo”) for the proposition that “a broad statement that the information is available from a mass of documents is insufficient[,]” Deyo is inapplicable to the present case. (Deyo, supra, 84 Cal.App.3d at p. 784.) Deyo addresses responses served with respect to interrogatories, as opposed to a party’s production of documents in response to a demanding party’s request for production. (Ibid.)

As the Court is without any authority to compel a further responses pursuant to Defendants’ arguments, Defendants’ Motion to Compel Further Responses is denied, with respect to Requests for Production, Set One, Requests Nos. 25 through 31.

C. Requests for Production, Set One, Request No. 32

Requests for Production, Set One, Request No. 32 states: “Any and all writings (as defined by Evidence Code section 250) which evidence, refer, relate or pertain to your contention in paragraph 48 of your complaint that you had a pressure ulcer that “ate away [your] skin, fascia, and muscle to the bone,” which caused your death.” (Ely Decl., Ex. A.)

In response to Requests for Production, Set One, Request No. 32, Plaintiff states: “After a diligent search and reasonable inquiry all documents within the care, custody or control of the responding party as of the date of this response are served concurrently herewith.” (Ely Decl., Ex. A.) In response to Request No. 32, Plaintiff produced Decedent’s entire medical chart composed during his stay with Defendant Facility, totaling approximately 17,285 pages, as well as 12,425 additional pages of third-party medical records. (Ely Decl., 9.)

Defendants move to compel Plaintiff’s further response to Request No. 32 because Plaintiff’s responding document production is fatally broad. Defendants advance argument identical to that advanced with respect to Request Nos. 25 through 31. Defendants argue that, in response to Request No. 32, Plaintiff has failed to produce only those documents responsive to Request No. 32, but instead have produced the entirety of Decedent’s medical chart from Defendant Facility as well as Decedent’s third-party medical records. Defendants argue Plaintiff is required to serve a further response which only produces those documents directly responsive to Request No. 32.

Similar to the Court’s finding with regard to Request Nos. 25 through 31, the Court disagrees that a further response to Request No. 32 is warranted. Just as discussed with respect to Request Nos. 25 through 31, Defendants do not purport to compel Plaintiff’s further response based upon the permissible, statutory grounds articulated in Code of Civil Procedure section 2031.310, subdivisions (a)(1) through (a)(3). (Code Civ. Proc., 2031.310, subd. (a)(1)-(3).) Rather, Defendants seek to compel Plaintiff’s further response based upon a ground not articulated within the statutory scheme. Defendants fail to cite any statutory authority which would permit an Order compelling Plaintiff’s further response based upon the ground advanced. Additionally, as noted in the preceding section of this Order, Defendants’ citation to Deyo is unavailing. Accordingly, Defendants’ Motion to Compel Further Responses is denied, with respect to Requests for Production, Set One, Request No. 32.

D. Request for Sanctions

As Defendants’ Motion has been denied, Defendants’ corresponding request for monetary sanctions against Plaintiff and Plaintiff’s counsel, pursuant to Code of Civil Procedure section 2031.310, subdivision (h), is similarly denied. (Code Civ. Proc., 2031.310, subd. (h).)

Conclusion

Defendants’ Motion and Request for is denied.

Case Number: *******1734 Hearing Date: April 5, 2022 Dept: 37

HEARING DATE: April 5, 2022

CASE NUMBER: *******1734

CASE NAME: Antonio Guerrero v. Shlomo Rechnitz, et al.

MOVING PARTIES: Defendants, Bakersfield Healthcare and Wellness Centre, LLC, and Rockport Administrative Services, LLC

OPPOSING PARTY: Plaintiff, Antonio Guerrero

TRIAL DATE: January 17, 2023

PROOF OF SERVICE: OK

PROCEEDING: Motion to Compel Plaintiff’s Further Responses to Form Interrogatories, Set One and Special Interrogatories, Sets One and Two; Request for Sanctions in the Amount of $2,700.00 Against Plaintiff and His Attorney of Record

OPPOSITION: February 14, 2022

REPLY: February 17, 2022

TENTATIVE: Defendants’ Motion to Compel Plaintiff’s Further Responses to Form Interrogatories, Set One and Special Interrogatories, Sets One and Two is granted, in part, and denied, in part. Defendants’ Motion is granted with respect to Form Interrogatory No. 14.1, and Special Interrogatory Nos. 33, 34, 35, 36, 37, 40, 48, 52, and 56. Further responses shall be served within 30 days. Defendants’ Motion is denied with respect to Special Interrogatory No. 1. Defendants’ Request for Monetary Sanctions Plaintiff and his counsel is granted in the amount of $2,260.00.

Background

This is an elder abuse action arising out of Plaintiff Antonio Guerrero’s (“Decedent”) residency at Defendant Bakersfield Healthcare and Wellness Centre, LLC (“Facility”). Decedent brings this action through his successor in interest, Carlos Guerrero (“Mr. Guerrero”). According to the Complaint, Defendant Rockport Administrative Services, LLC (“Rockport”) manages and controls Facility, and Defendant Steven Stroll (“Stroll”) is listed as Rockport’s manager. Additionally, Defendant Shlomo Rechnitz (“Rechnitz”) is allegedly the true owner and operator of the entity-Defendants.

According to the Complaint, all Defendants acted as agents and alter egos of each other in operating Facility. Defendants failed to comply with numerous laws and regulations governing the operations of skilled nursing facilities through their actions, including by unlawfully siphoning money from Facility to Rechnitz, understaffing Facility, employing unlicensed or unqualified employees and otherwise depriving Facility of essential care services for its patients. Specifically, Defendants allegedly failed to provide Decedent adequate care during his residency despite knowledge that Decedent had severe pressure ulcers and required assistance with activities of daily living. Defendants’ alleged failure to provide care for Decedent resulted in Decedent’s injuries and his ultimate death.

Plaintiff’s Complaint alleges the following causes of action: (1) elder abuse, (2) negligent hiring and supervision.

Now, Defendants Facility and Rockport move to compel Plaintiff’s further responses to Form Interrogatories, Set One, and Special Interrogatories, Sets One and Two, within twenty (20) days of this Court’s Order, and additionally request monetary sanctions in the amount of $2,700.00 against Plaintiff and his attorney of record, payable within twenty (20) days of this Court’s Order.

Discussion

I. Legal Standard

“Any party may obtain discovery . . . by propounding to any other party to the action written interrogatories to be answered under oath.” (Code Civ. Proc., 2030.010, subd. (a).)

“The party to whom interrogatories have been propounded shall respond in writing under oath separately to each interrogatory by any of the following: (1) An answer containing the information sought to be discovered[;] (2) An exercise of the party's option to produce writings[;] (3) An objection to the particular interrogatory.” (Code Civ. Proc., 2030.210, subd. (a).)

“Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.” (Code Civ. Proc., 2030.220, subd. (a).) “If an interrogatory cannot be answered completely, it shall be answered to the extent possible.” (Code Civ. Proc., 2030.220, subd. (b).) “If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.” (Code Civ. Proc., 2030.220, subd. (c).)

“On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete[;] (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate[;] (3) An objection to an interrogatory is without merit or too general.” (Code Civ. Proc., 2030.300, subd. (a).)

A propounding party’s motion for an order compelling a further response muse be accompanied by a meet and confer declaration. (Code Civ. Proc., 2030.300, subd. (b)(1).) A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc. 2016.040.)

“The 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.” (Code Civ. Proc., 2030.300, subd. (d).)

II. Discussion

Defendants Facility and Rockport (hereinafter, “Defendants”) move to Compel Plaintiff’s further responses to Form Interrogatories, Set One No. 14.1, Special Interrogatories, Set One Nos. 1, 33, 34, 35, 36, 37, and 40, and Special Interrogatories, Set Two, Nos. 48, 52, and 56. Plaintiff opposes the sum of Defendants’ Motion.

A. Meet and Confer

The Court finds Defendants have sufficiently met and conferred in good faith prior to filing the present Motion, in compliance with Code of Civil Procedure section 2030.300, subdivision (b)(1). (Code Civ. Proc., 2030.300, subd. (b)(1).)

On October 19, 2021, Plaintiff served upon Defendants Plaintiff’s responses to the subject Form Interrogatories, Set One, Special Interrogatories, Set One, and Special Interrogatories, Set Two. (Ely Decl., 3.) Thereafter, on November 17, 2021, Defendants sent a detailed meet and confer letter to Plaintiff regarding Plaintiff’s alleged insufficient discovery responses. (Id. 5, Ex. D.) Following a detailed discussion regarding Plaintiff’s insufficient responses, Defendants stated, “Please provide a further response to the above identified interrogatories by November 29, 2021. While we intend to keep discovery disputes out of court, if we are required to file a motion to compel, we will . . . . Should you have any questions or require a reasonable extension, please feel free to contact me. Thank you for your anticipated cooperation in this matter.” (Ibid.)

One day later, on November 18, 2021, Plaintiff responded to Defendants’ meet and confer letter. (Ely Decl., 6, Ex. E.) Plaintiff outlined arguments with respect to each interrogatory in dispute, maintaining that the responses served are sufficient pursuant to the relevant sections of the Code of Civil Procedure. (Ibid.)

Thereafter, on December 7, 2021, Defendants, unsatisfied with Plaintiff’s response, attempted to determine Plaintiff’s availability for an Informal Discovery Conference, and further inquired whether Plaintiff would stipulate to extending the deadline to file a motion to compel a further response. (Ely Reply Decl., Ex. F.) On the same date, Plaintiff responded to Defendants’ correspondence, stating that Plaintiff is available on December 23, 2021, for an Informal Discovery Conference—a date beyond the deadline to file a motion to compel a further response—and, additionally stated, that Plaintiff would not stipulate to an extension of the time to file a motion to compel a further response. Given Plaintiff’s lack of availability and unwillingness to extend the deadline for a motion to compel a further response, Defendants were unable to resolve the present dispute informally and were prompted to file the present Motion.

Based on the foregoing, the Court finds Defendants have sufficiently met and conferred in good faith prior to filing the present Motion, in compliance with Code of Civil Procedure section 2030.300, subdivision (b)(1). (Code Civ. Proc., 2030.300, subd. (b)(1).)

B. Form Interrogatories, Set One No. 14.1

Form Interrogatories, Set One No. 14.1 states as follows: “Do YOU OR ANYONE ACTING ON YOUR BEHALF contend that any PERSON involved in the INCIDENT violated any statute, ordinance, or regulation and that the violation was a legal (proximate) cause of the INCIDENT? If so, identify the name, ADDRESS, and telephone number of each PERSON and the statute, ordinance, or regulation that was violated.” (Ely Decl., Ex. A.)

In response to Form Interrogatories, Set One No. 14.1, Plaintiff states: “Yes. Plaintiff identifies the following from the Defendant Facility: Rush Melleti, administrator; Chrissy Hansen; Jonathan Weiss; Shlomo Rehcnitz; Steven Stroll; all of whose contact information is known solely to the propounding party. Currently, it is believed that Defendant violated the following regulations in their dealings with Plaintiff: Title 22 California Code of Regulations 72515(b); Title 22 California Code of Regulations 72527(a)(9); Title 22 California Code of Regulations 72311(3)(b); 42 U.S.C. 1396r(b)(4)(C); 42 C.F.R. 483.30; Title 22 California Code of Regulations 72329; Title 22 California Code of Regulations 72311; Title 22 California Code of Regulations 72315; Title 22 California Code of Regulations 72517; Title 22 California Code of Regulations 72515(b), Title 22 California Code of Regulations 72329; 42 C.F.R. 483.30; Health and Safety Code 1276.5; Title 22 California Code of Regulations 72527(a)(9). Discovery continues.” (Ely Decl., Ex. B [emphasis added].)

Defendants move to compel Plaintiff’s further response to Form Interrogatories, Set One No. 14.1 because Plaintiff has failed to identify the particular subsections for the statutes bolded and underlined within Plaintiff’s response. As Plaintiff has identified lengthy statutory code sections, without providing a narrowed, specific statutory subsection or subdivision for which Defendants allegedly violated, Defendants argue Plaintiff’s response is evasive.

The Court agrees. Code of Civil Procedure section 2030.220, subdivision (a) provides, “[e]ach answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.” (Code Civ. Proc., 2030.220, subd. (a).) Plaintiff has failed to provide a complete and straightforward response to Defendants’ Form Interrogatory No. 14.1 as Plaintiff has failed to identify the specific statutory subsection and/or subdivision which Defendants allegedly violated. Rather, Plaintiff has deferred to citing lengthy statutory sections, which include voluminous subsections and subdivisions. As Plaintiff is the only party who can identify the particular statute Defendants are alleged to have violated, Plaintiff must provide a more complete and straightforward response.

Accordingly, Defendants’ Motion to Compel Further Responses is GRANTED, with respect to Form Interrogatories, Set One No. 14.1.

C. Special Interrogatories, Set One No. 1

Special Interrogatories, Set One No. 1 states as follows: “Identify any and all medical expenses incurred for injuries allegedly sustained by you as a result of the incident which is the subject of your complaint.” (Ely Decl., Ex. A.)

In response to Special Interrogatories, Set One No. 1, Plaintiff states: “Plaintiff avails himself of the right to produce documents in lieu of providing a written response, as per California Code of Civil Procedure 2030.210(a)(2). Attached hereto as Exhibit “1” are the billing for medical expenses, which provides information responsive to this request. Discovery continues.” (Ely Decl., Ex. B.) Thereafter, Plaintiff attached approximately one hundred and fifty-seven (157) pages of Decedent’s medical billing records as “Exhibit 1”. (Ibid.)

Defendants move to compel Plaintiff’s further response to Special Interrogatories, Set One No. 1 because Plaintiff's production of documents as a method of responding to the Interrogatory is too broad. Defendants argue that “[i]t is clear that Plaintiff resorted to the kitchen sink approach” because Plaintiff has produced “over a hundred pages of billing records for services dating from November 2016 to [Decedent’s] death.” (See Separate Statement, at p. 7:14-17.)

The Court disagrees a further response is warranted. As stated within Code of Civil Procedure section 2030.210, subdivision (a)(2), a responding party may properly respond to an interrogatory by “[a]n exercise of the party’s option to produce writings”. (Code Civ. Proc., 2030.210, subd. (a)(2).) Here, Plaintiff has produced documents responsive to Defendants’ Special Interrogatories, Set One No. 1 by producing billing records evidencing “all medical expenses incurred for [Decedent’s] injuries”. (Ely Decl., Ex. B.) While Defendants argue the billing records produced by Plaintiff are “broad”, Defendants do not elaborate with respect to this argument and fail to demonstrate to this Court the reasons for which the records produced are unresponsive.

Further, Defendants’ citation to Deyo v. Kilbourne (1978) 84 Cal.App.3d 771 (“Deyo”) is unavailing. Defendants cite to Deyo for the proposition that “a broad statement that the information is available from a mass of documents is insufficient.” (Deyo, supra, 84 Cal.App.3d at p. 784.) However, this proposition was made in a distinguishable context. The Court of Appeal in Deyo stated that, where a response to an interrogatory required a compilation of business records and such records are unavailable to the responding party, a responding party may sufficiently respond to the interrogatory by specifying the records from which an answer may be derived. (Ibid.) When identifying the records within the response, the responding party may not advance a “broad statement that the information is available from a mass of documents”. (Ibid.) In other words, this proposition is only applicable where the responding party broadly identifies the responsive documents, and where the documents may be found and examined. This proposition is inapplicable where the responsive documents have been directly produced to the propounding party, as they have been produced here. Accordingly, Defendants’ Motion to Compel Further Responses is denied, with respect to Special Interrogatories, Set One No. 1.

D. Special Interrogatories, Set One No. 33

Special Interrogatories, Set One No. 33 states: “Specifically, how did defendant’s facility fail to provide you with adequate hydration and nutrition as alleged in your complaint at paragraph 46?” (Ely Decl., Ex. A.)

In response to Special Interrogatories, Set One No. 33, Plaintiff states: “As a direct result of the chronic understaffing at the Facility in both number and training, the Facility failed to provide Antonio Guerrero with adequate hydration and nutrition to stave off infections and skin breakdown. This reality is demonstrated by Antonio Guerrero’s lab results during his admission to the Defendant Facility:

• On March 23, 2017, Antonio Guerrero had a low Albumin of 2.5 and low total protein of 6.4 indicating malnutrition. Additionally, he had a high BUN/Creatinine ratio of 28.0 indicating dehydration.

• On May 1, 2017, Antonio Guerrero had a low Albumin of 2.6 indicating severe malnutrition.

• On June 8, 2017, Antonio Guerrero had a low Albumin of 2.8 indicating malnutrition and a high BUN/Creatinine ratio of 26.0 indicating dehydration.

• On November 7, 2017, Antonio Guerrero had a low Albumin of 3.3 indicating malnutrition and a high BUN/Creatinine ratio of 22.1 indicating dehydration.

• On December 16, 2018, Antonio Guerrero had a low albumin of 3.3 indicating malnutrition and a high BUN/Creatinine ratio of 24.1 indicating severe dehydration.

• On July 14, 2019 and upon admission to Kern Medical Center, Antonio Guerrero had a low Albumin of 1.7 indicating severe malnutrition, a high BUN of 66 and Creatinine level of 1.08, indicating severe ongoing dehydration.

As a result of the Defendant Facility failing to provide adequate hydration and nutrition during the course of Antonio Guerrero’s stay at the Defendant Facility, Antonio Guerrero suffered injury, including numerous pressure ulcers throughout his body, pain and suffering. These injuries were entirely preventable had there been sufficient staff on duty, in both number and competency, to actually implement the protections required by the Facility’s own Plan of Care and physician orders and assessments for Antonio Guerrero. Unfortunately, there was not sufficient staff on duty at the Facility to implement the protections called for in the Facility’s Plan of Care and physician orders and assessments for Antonio Guerrero and Antonio Guerrero suffered the painful and preventable injuries alleged. Discovery continues.” (Ely Decl., Ex. B.)

Defendants move to compel Plaintiff’s further response to Special Interrogatories, Set One No. 33 because Plaintiff’s response is not responsive to Defendants’ question, which asks “how” Defendants failed to provide Decedent with adequate hydration and nutrition.

The Court agrees. Plaintiff’s response to Special Interrogatories, Set One No. 33 is unresponsive to the question. Special Interrogatories, Set One No. 33 requests that Plaintiff provide information as to “how” Defendants failed to provide Decedent with adequate hydration and nutrition. (Ely Decl., Ex. A.) Plaintiff’s response merely recites test results which seemingly prove that Decedent was not provided with sufficient hydration and nutrition, as opposed to stating “how” Defendants failed to properly hydrate and provide Decedent with nutrition. Plaintiff is required to provide a further response which outlines the actions committed by Defendants which resulted in Decedent’s lack of hydration and nutrition. Accordingly, Defendants’ Motion to Compel Further Responses is granted, with respect to Special Interrogatories, Set One No. 33.

E. Special Interrogatories, Set One No. 34

Special Interrogatories, Set One No. 34 states: “Identify the specific record(s), by bates and/or page numbers, which supports your contention that you did not receive adequate nutrition and hydration while at defendant’s facility.” (Ely Decl., Ex. A.)

In response to Special Interrogatories, Set One No. 34, Plaintiff states: “Objection, compound and disjunctive in violation of the mandatory provisions of the Code of Civil Procedure.” (Ely Decl., Ex. B.)

Defendants move to compel Plaintiff’s further response to Special Interrogatories, Set One No. 34 because Plaintiff’s objection supposedly lacks merit.

The Court disagrees. Code of Civil Procedure section 2030.060, subdivision (f) provides, “[n]o specially prepared interrogatory shall contain subparts, or a compound, conjunctive, or disjunctive question.” (Code Civ. Proc., 2030.060, subd. (f).) Where an interrogatory covers two (2) discrete matters in a single question, an objection on the grounds of compound and disjunctive may be sustained. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021 Update) 8:978.) Here, Special Interrogatories, Set One No. 34 does not cover two (2) discrete matters in a single question. Special Interrogatory No. 34 requests that Plaintiff identify the specific records which supports his contention that Decedent did not receive adequate hydration and nutrition. Those are not separate questions but instead a single question relating to two factors. Accordingly, the Court is persuaded that Plaintiff’s objection is not meritorious. Thus, Defendants’ Motion to Compel Further Responses is granted, with respect to Special Interrogatories, Set One No. 34.

F. Special Interrogatories, Set One No. 35

Special Interrogatories, Set One No. 35 states: “Which plan(s) of care did the facility fail to implement as alleged in your complaint at paragraph 46?” (Ely Decl., Ex. A.)

In response to Special Interrogatories, Set One No. 35, Plaintiff states: “Care plans for risk for pressure ulcer risk, care plans for nutritional risk, care plans for dehydration risk, care plans for physical therapy, care plans regarding Antonio Guerrero pulling out his catheter and feeding tube. Discovery continues.” (Ely Decl., Ex. B.)

Defendants move to compel Plaintiff’s further response because Plaintiff has failed to completely answer the question posed by Special Interrogatories, Set One No. 35. Defendants argue that a very brief review of Decedent’s medical chart shows that Defendants implemented various care plans with respect to the care of Decedent’s pressure ulcer and Decedent’s nutrition. For example, Plaintiff’s medical chart reveals Defendants implemented and updated Decedent’s care plan on February 28, 2019, December 20, 2019, December 29, 2017, May 4, 2018, May 8, 2018, July 8, 2019, August 8, 2018, October 9, 2018, and July 5, 2018.

The Court agrees. The Court finds Plaintiff’s response to Special Interrogatories, Set One No. 35 to be incomplete as Plaintiff’s response fails to include the necessary specificity. Defendants’ Special Interrogatory No. 35 requests Plaintiff’s identification of the specific “plan(s) of care” which Plaintiff contends Defendants failed to implement. Plaintiff’s response fails to specify the particular “plan(s) of care,” but reverts to a more generalized approach by vaguely describing certain “care plans”. Plaintiff is ordered to provide a further response which identifies the specific “plan(s) of care” which Plaintiff maintains Defendants failed to implement. Accordingly, Defendants’ Motion to Compel Further Responses is GRANTED, with respect to Special Interrogatories, Set One No. 35.

G. Special Interrogatories, Set One No. 36

Special Interrogatories, Set One No. 36 states: “Which plan(s) of care did the facility fail to update as alleged in your complaint at paragraph 56?” (Ely Decl., Ex. A.)

In response to Special Interrogatories, Set One No. 36, Plaintiff states: “Care plans for risk for pressure ulcer risk, care plans for nutritional risk, care plans for dehydration risk, care plans for physical therapy, care plans regarding Antonio Guerrero pulling out his catheter and feeding tube. Discovery continues.” (Ely Decl., Ex. B.)

Defendants move to compel Plaintiff’s further response because Plaintiff has failed to provide a complete answer to the question posed by Special Interrogatories, Set One No. 36. Defendants advance an argument identical to that made with respect to Special Interrogatories, Set One No. 35, arguing that Plaintiff has failed specifically identify the “plan(s) of care” Defendants allegedly failed to implement.

The Court agrees with Defendants’ arguments, and finds that Plaintiff’s response to Special Interrogatories, Set One No. 36 is incomplete as it fails to specify the particular “plan(s) of care” Plaintiff contends Defendants failed to implement. Plaintiff is ordered to provide a further response which identifies the specific “plan(s) of care” which Plaintiff maintains Defendants failed to implement. Accordingly, Defendants’ Motion to Compel Further Responses is GRANTED, with respect to Special Interrogatories, Set One No. 36.

H. Special Interrogatories, Set One No. 37

Special Interrogatories, Set One No. 37 states: “Which physician’s orders did the facility fail to implement as alleged in your complaint at paragraph 46?” (Ely Decl., Ex. A.)

In response to Special Interrogatories, Set One No. 37, Plaintiff states: “Monitoring for signs of dehydration, turning and repositioning, RoM exercises, provision of a low air loss mattress, wound care including cleansing and monitoring wounds. Discovery continues.” (Ely Decl., Ex. B.)

Defendants move to compel Plaintiff’s further response to Special Interrogatory No. 37 because Plaintiff’s current response is incomplete and evasive. Defendants argue that Plaintiff’s response contains no identifying information as to which physician’s orders Defendants allegedly failed to implement. Defendants argue that Decedent was a patient within Defendants’ Facility for approximately seven (7) years, and Decedent’s medical chart contains numerous physician’s orders which Defendants were responsible for implementing. Defendants argue Plaintiff’s current response, is therefore, incomplete and evasive because Plaintiff fails to identify the specific physician’s orders, which have been issued over (7) years, that Defendants have allegedly failed to implement.

The Court agrees. The Court finds Plaintiff’s response to Special Interrogatories, Set One No. 37 to be incomplete as Plaintiff’s response fails to include the necessary specificity. While Defendants’ Special Interrogatory No. 37 requests Plaintiff’s identification of specific “physician’s orders” which Defendants allegedly failed to implement, Plaintiff’s response fails to do so and, instead, merely identifies generalized physician’s orders which may have been implemented over seven (7) years’ time. Plaintiff is ordered to serve a further response which identifies the physician’s orders with sufficient particularity. Accordingly, Defendants’ Motion to Compel Further Responses is granted, with respect to Special Interrogatories, Set One No. 37.

I. Special Interrogatories, Set One No. 40

Special Interrogatories, Set One No. 40 states: “Specifically, which sudden or marked adverse changes in signs, symptoms or behavior did defendant’s facility fail to notify your physician about, as alleged in your complaint at paragraph 53?” (Ely Decl., Ex. A.)

In response to Special Interrogatories, Set One No. 40, Plaintiff states: “The Defendants owed a duty to Antonio Guerrero to notify a physician of any sudden or marked adverse change in signs, symptoms or behavior exhibited by a patient, which right is protected by 22 C.C.R. 72311(3)(b). The Defendants failed to meet this duty to Antonio Guerrero thereby causing Antonio Guerrero injury. Specifically, the Defendants failed to timely notify the physician of Antonio Guerrero’s decline in hydration and nutrition, aspiration pneumonia, and the development and decline of pressure ulcers. Discovery continues.” (Ely Decl., Ex. B.)

Defendants move to compel Plaintiff’s further response because Plaintiff’s response to Special Interrogatories, Set One No. 40 is evasive, vague, and ambiguous. Defendants argue that Decedent was a patient at Defendants’ Facility for approximately seven (7) years. Plaintiff’s current response fails to specifically identify the dates when and circumstances which required Defendants to notify Decedent’s physician of “any sudden or marked adverse change” to Decedent’s condition.

The Court agrees. The Court finds Plaintiff’s response to Special Interrogatory No. 40 to be incomplete. Paragraph 53 of Plaintiff’s Complaint alleges that Defendants “failed to meet” the duty “to notify a physician of any sudden or marked adverse change in signs, symptoms or behavior exhibited” by Decedent. (Compl., 53.) Special Interrogatory No. 40 specifically requests that Plaintiff identify the changes in Decedent’s symptoms and condition which would warrant such a notification, and further, implicates Plaintiff’s identification of when and under what circumstances such a change occurred. Plaintiff’s current response is particularly vague and general, and fails to identify the dates of the alleged “sudden or marked adverse changes” and the circumstances which would warrant a notification to Decedent’s physician. Plaintiff is required to serve a further response remedying the current ambiguity. Accordingly, Defendants’ Motion to Compel Further Responses is granted, with respect to Special Interrogatories, Set One No. 40.

J. Special Interrogatories, Set Two Nos. 48, 52, 56

Special Interrogatories, Set Two No. 48 states: “Identify each writing as defined by Evidence Code section 250 that evidences, relates or refers to the facts upon which you base your claim against this specific propounding party for Elder Abuse (presently the First Cause of Action) as stated in the OPERATIVE COMPLAINT.” (Ely Decl., Ex. A.)

Special Interrogatories, Set Two No. 52 states: “Identify each writing as defined by Evidence Code section 250 that evidences, relates or refers to the facts upon which you base your claim against this specific propounding party for Negligent Hiring and Supervision (presently the Second Cause of Action) as stated in the OPERATIVE COMPLAINT.” (Ely Decl., Ex. A.)

Special Interrogatories, Set Two No. 56 states: “Identify each writing as defined by Evidence Code section 250 that evidences, relates or refers to the facts upon which you base your claim for punitive damages as stated in the OPERATIVE COMPLAINT.” (Ely Decl., Ex. A.)

Plaintiff’s response to Special Interrogatories, Set Two Nos. 48, 52, and 56 are nearly identical, and state: “Department of Public Health (hereinafter, “DPH” and formerly known as the Department of Health Services) records regarding all facilities owned, operated, or managed by Defendants in the State of California; Deficiencies and Complaints that DPH has investigated with respect to such facilities; Operating Budgets for all facilities owned, operated or managed by Defendants in the State of California; Claims, bills, and/or cost reports submitted to any state healthcare program by all facilities owned, operated, or managed by the Defendants in the State of California; Employee training logs for all facilities owned, operated, or managed by Defendants in the State of California; Resident satisfaction reports for all facilities owned, operated, or managed by Defendants in the State of California, all of which are in possession of the propounding Defendants and/or the DPH. In addition, the policies and procedures manuals from the subject facility, any management agreements entered into by said subject facilities; all the time cards and other time recordings of employees at the Facility while Plaintiff was a resident there; all business office records, admissions agreements, bills and statements of account relating to the Plaintiff, any and all writings between Defendants and the responding party, the complete records of Plaintiff generated and maintained by Rehabilitation Center of Bakersfield; the complete records of Plaintiff generated and maintained by Kern Medical; the complete records of Plaintiff generated and maintained by Bakersfield Memorial Hospital; provide any “Incident Report” and/or “Unusual Occurrence Report” and/or any other Document utilized by the Facility to report or memorialize any occurrence relating to a resident which in any fashion mentions or relates to the Plaintiff; ”Payroll Based Journal” submissions by the responding party to the Centers for Medicare & Medicaid Services ; Facility Nursing Staffing Information; all completed California Department of Public Health “530 forms”; all completed California Department of Public Health “612 forms”; all completed Roster/Sample Matrix “802 Forms”; all completed 24 Hour Communication logs the Facility; all completed Facility CASPER reports; daily resident census of the Facility; all time cards and other time recordings during the Specified Time Period, for all personnel, (including relief or pool personnel) who worked on any unit, wing or station of the Facility where the Plaintiff resided; all work schedules, employee sign-in sheets and time sheets during the time period of the residency of the Plaintiff in the Facility; all Documents which consist of all Policy And Procedures in effect at the Facility; all Documents constituting the job descriptions of the Facility staff utilized pursuant to 22 California Code of Regulations 72521(c)(1)(A); Facility Employee Handbook; all Documents constituting Orientation Manuals ; the Facility Code of Conduct; Facility Unusual Occurrence logs or reports and/or 24 Hour Communication logs; all Documents which evidence the Facility’s “ongoing educational program” occurring at the Facility; all Documents which constitute the Facility’s “Records of each staff development program”; all Documents which were provided to the attendees of any “staff development program” occurring at the Facility; all sign in sheets of those who attended any “staff development program” occurring at the Facility; all Documents upon which the Facility relied to ensure that Facility personnel who provided Nursing Services to the Plaintiff, as well as Rush Melliti and Lenore Wickman, were fit to perform their job duties in the Facility; Facility’s Written Organizational Chart; and OSHPD records for information responsive to this request. Discovery continues.” (Ely Decl., Ex. B.)

Defendants move to compel Plaintiff’s further response to Special Interrogatories, Set Two Nos. 48, 52, and 56 because Plaintiff’s response is evasive. Defendants argue that Plaintiff has responded to each Special Interrogatory by vaguely identifying thousands of pages of documents, effectively leaving Defendants to determine for themselves which documents are truly responsive to Defendants’ requests.

The Court agrees. Plaintiff’s responses to Special Interrogatory Nos. 48, 52, and 56 are representative of the exact conduct which is prohibited by Code of Civil Procedure section 2030.230 as well as Deyo. Code of Civil Procedure section 2030.230 provides, “[i]f an answer to an interrogatory would necessitate the preparation or making of a compilation, abstract, audit, or summary of . . . documents . . ., it is a sufficient answer to that interrogatory to refer to this section and to specify the writings from which the answer may be derived or ascertained. This specification shall be in sufficient detail to permit the propounding party to locate and to identify, as readily as the responding party can, the documents from which the answer may be ascertained.” (Code of Civ. Proc., 2030.230.) Further, “a broad statement that the information is available from a mass of documents is insufficient.” (Deyo, supra, 84 Cal.App.3d at p. 784.) Here, Plaintiff has responded by improperly identifying a “mass of documents”, without providing sufficient identification of the particular documents from which Plaintiff’s responses may be ascertained. Plaintiff has merely identified thousands of pages of documents, leaving the burden upon Defendants to ascertain which documents are responsive. Such a response is improper. Accordingly, Plaintiff must provide a further response which complies with Code of Civil Procedure section 2030.230 and Deyo. Based on the foregoing, Defendants’ Motion to Compel Further Responses is granted, with respect to Special Interrogatories, Set Two Nos. 48, 52, and 56.

K. Request for Monetary Sanctions

The Court finds monetary sanctions are warranted against Plaintiff and his counsel pursuant to Plaintiff’s incomplete and evasive responses to the above written discovery. (Code Civ. Proc., 2030.300, subd. (d).) The Court issues monetary sanctions against Plaintiff and his counsel in an amount of $2,260.00. (Ely Decl., 8.)

Conclusion

Defendants’ Motion to Compel Plaintiff’s Further Responses to Form Interrogatories, Set One and Special Interrogatories, Sets One and Two is granted, in part and denied, in part.

Defendants’ Request for Monetary Sanctions is granted. Monetary sanctions are issued against Plaintiff and his counsel of record in an amount of $2,260.00.

Case Number: *******1734 Hearing Date: March 18, 2022 Dept: 37

HEARING DATE: March 18, 2022

CASE NUMBER: *******1734

CASE NAME: Antonio Guerrero v. Shlomo Rechnitz, et al.

MOVING PARTY: Plaintiff Antonio Guerrero

OPPOSING PARTY: Defendants Shlomo Rechnitz, Bakersfield Healthcare and Wellness Centre, LLC, and Rockport Administrative Services, LLC

TRIAL DATE: January 17, 2023

PROOF OF SERVICE: OK

MOTION: Plaintiff’s Motion to Compel the Deposition of Steven Stroll and for Actual Production of Documents

OPPOSITION: March 7, 2022

REPLY: March 8, 2022

TENTATIVE: Plaintiff’s motion is denied. Plaintiff’s request for sanctions is also denied. Plaintiff to give notice.

Background

This is an elder abuse action arising out of Plaintiff, Antonio Guerrero’s (“decedent”) residency at Defendant, Bakersfield Healthcare and Wellness Centre, LLC. (“Facility”) Decedent brings this action through his successor in interest, Carlos Guerrero. (“Mr. Guerrero”) According to the Complaint, Defendant Rockport Administrative Services, LLC (“Rockport”) manages and controls the facility, and Defendant Steven Stroll (“Stroll”) is listed as Rockport’s manager. Additionally, Defendant Shlomo Rechnitz (“Rechnitz”) is allegedly the true owner and operator of the entity defendants.

According to the Complaint, all defendants acted as agents and alter egos of each other in operating the Facility. Defendants failed to comply with numerous laws and regulations governing the operations of skilled nursing facilities through their actions, including by unlawfully siphoning money from the Facility to Rechnitz, understaffing the Facility, employing unlicensed or unqualified employees and otherwise depriving the Facility of essential care services for its patients. Specifically, Defendants allegedly failed to provide Decedent adequate care during his residency despite knowledge that Decedent had severe pressure ulcers and required assistance with activities of daily living. Defendants’ allegedly failure to provide care for decedent resulted in decedent suffering injuries and ultimately in his death.

Plaintiff’s Complaint alleges the following causes of action: (1) elder abuse, (2) negligent hiring and supervision.

Plaintiff now moves to compel the deposition of Stroll and for production of documents. Defendants Rechnitz, Facility, and Rockport (“Defendants”) oppose the motion.

Procedural History

On July 18, 2021, Plaintiff served the notice of deposition of Stroll. (Declaration of Stephen M. Garcia (“Garcia Decl.”), 7, Ex. 1.) Defendants’ counsel purportedly served unmeritorious objections on July 23, 2021, and Stroll failed to appear for his noticed deposition on July 30, 2021. (Garcia Decl. 8-10, Ex. 2.)

Meet and Confer Efforts

A motion to compel deposition must be accompanied by a good faith meet and confer declaration under section 2016.040 or, “when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., 2025.450, subd. (b)(2).) A declaration under section 2016.040 must state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented in the motion. (Code Civ. Proc., 2016.040.)

Plaintiff submits the declaration of his counsel, Stephen M. Garcia (“Garcia”) to demonstrate compliance with statutory meet and confer requirements. Garcia attests that on July 24, 2021, he sent Defendants’ counsel a meet and confer letter regarding Defendants’ objections. (Garcia Decl. 9, Ex. 3.) Garcia further attests that on September 14, 2021, he wrote to Defendants’ counsel and offered ten alternative dates for the deposition. (Garcia Decl. 11.) According to Garcia, Stroll’s deposition has been purposefully delayed. (Garcia Decl. 12.)

In opposition, Defendants acknowledge the above meet and confer attempts and submit the declaration of their counsel, Melanie J. Ely (“Ely”) regarding an additional meet and confer efforts. Ely attests that on March 2, 2022, she sent Plaintiff’s counsel a meet and confer letter regarding the instant motion. (Declaration of Melanie J. Ely (“Ely Decl.”) 2, Ex. A.)

The Garcia Declaration and Ely Declaration are sufficient for purposes of Code of Civil Procedure section 2025.450, and the parties have demonstrated compliance with this section’s meet and confer requirements.

Discussion

1. Legal Authority

   “If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” (Code Civ. Proc. 2025.450, subd. (a).) The motion must set forth specific facts justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. (Id. 2025.450, subd. (b)(1).)

2. Analysis

Plaintiff contends that Stroll, as Rockport’s manager, must be ordered to appear for deposition and produce documents because Defendants have provided no justification for refusing to do so, and the discovery sought is related to Plaintiff’s allegations and claimed injuries. (Motion, 1, 3.)

In opposition, Defendants contend as follows. First, Stroll is Rockport’s owner and former CEO. Defendants argue in their opposition that Stroll now (and perhaps at the time of the deposition notice) lived in Israel. They objected to the place of the deposition being more than 150 miles from his place of residence. Defendants claim he is an “Apex” witness such that plaintiff must make further efforts to establish unique knowledge. (Opposition, 3-7, 8-9.) Second, Plaintiff has failed to show that Stroll has personal, unique, or superior knowledge of any facts or circumstances of this litigation. (Opposition, 7-8.) Third, Plaintiff’s requests for production are vague, ambiguous, overbroad, irrelevant, burdensome, harassing and/or oppressive. (Opposition, 9-10.) However, their own Opposition states he is no longer an Apex witness, as he is a former CEO.

In reply, Plaintiff contends that an order compelling Stroll’s deposition is warranted to show that Stroll, as Rockport’s manager, ratified violations, as alleged in the Complaint. (Reply, 2.) Plaintiff further contends that, given the facts and circumstances of this case, Plaintiff need not employ less intrusive means of discovery or show that Stroll has superior or exclusive knowledge of discoverable information. (Reply, 6-9.) This is the only “evidence” submitted regarding ownership or location of the witness, and it is stale in that it does not show Stroll’s current positions with Defendant.

On the other hand, Defendant produced no evidence to support its claims.

Because the Plaintiff has the burden of showing that the time and place of the deposition are proper, Plaintiff’s failure to produce competent evidence concerning the facts at the time of the deposition precludes granting relief. dThe court need not discuss the parties’ remaining arguments.

Accordingly, Plaintiff has not met his burden to demonstrate good cause for the deposition of Stroll. The motion is denied on its merits. In light of the ruling on the motion, Plaintiff’s request for sanctions is also denied.

Conclusion

Plaintiff’s motion is denied. Plaintiff’s request for sanctions is also denied. Plaintiff to give notice.

Case Number: *******1734 Hearing Date: February 28, 2022 Dept: 37

HEARING DATE: February 28, 2022

CASE NUMBER: *******1734

CASE NAME: Antonio Guerrero v. Shlomo Rechnitz, et al.

MOVING PARTY: Defendant, Bakersfield Healthcare and Wellness Centre, LLC

OPPOSING PARTY: Plaintiff Antonio Guerrero

TRIAL DATE: January 17, 2023

PROOF OF SERVICE: OK

MOTION: Defendant’s Motion to Compel Further Responses to Special Interrogatories, Sets One and Two

OPPOSITION: February 14, 2022

REPLY: February 22, 2022

TENTATIVE: Defendants’ motion is granted as to interrogatories 34, 36, 37, 40, 48, 52 and 56. The motion is otherwise denied. Defendants’ request for sanctions is denied. Both parties’ requests for sanctions are denied. Plaintiff is to serve verified, supplemental responses within 30 days. Defendants are to give notice.

Background

This is an elder abuse action arising out of Plaintiff, Antonio Guerrero’s (“decedent”) residency at Defendant, Bakersfield Healthcare and Wellness Centre, LLC. (“Facility”) Decedent brings this action through his successor in interest, Carlos Guerrero. (“Mr. Guerrero”) According to the Complaint, Defendant Rockport Administrative Services, LLC (“Rockport”) manages and controls the facility, and Defendant Steven Stroll (“Stroll”) is listed as Rockport’s manager. Additionally, Defendant Shlomo Rechnitz (“Rechnitz”) is allegedly the true owner and operator of the entity defendants.

According to the Complaint, all defendants acted as agents and alter egos of each other in operating the Facility. Defendants failed to comply with numerous laws and regulations governing the operations of skilled nursing facilities through their actions, including by unlawfully siphoning money from the Facility to Rechnitz, understaffing the Facility, employing unlicensed or unqualified employees and otherwise depriving the Facility of essential care services for its patients. Specifically, Defendants allegedly failed to provide Decedent adequate care during his residency despite knowledge that Decedent had severe pressure ulcers and required assistance with activities of daily living. Defendants’ allegedly failure to provide care for decedent resulted in decedent suffering injuries and ultimately in his death.

Plaintiff’s Complaint alleges the following causes of action: (1) elder abuse, (2) negligent hiring and supervision.

Facility and Rockport (“Defendants”) now moves to compel further responses to Form Interrogatories, Set One and Special Interrogatories Sets One and Two. Plaintiff opposes the motion.

Procedural History

On September 17, 2021, Defendants served Form Interrogatories, Set One and Special Interrogatories, Sets One and Two on Plaintiff. (Declaration of Melanie J. Ely (“Ely Decl.”), 2.) Plaintiff’s counsel served unverified responses on October 19, 2021 and served verifications on October 25, 2021. (Ely Decl. 3-4, Ex. C.)

Meet and Confer Efforts

A motion to compel further responses “shall be accompanied by a meet and confer declaration.” (Code Civ. Proc., ; 2030.300, subd. (b)(1).) The declaration must state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented in the motion. (Code Civ. Proc., 2016.040.) “[A] reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel…. Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294.)

Defendants submit the declaration of their counsel, Melanie J. Ely (“Ely”) to demonstrate compliance with statutory meet and confer requirements. Ely attests that on November 17, 2021, she sent Plaintiff’s counsel a meet and confer letter regarding Plaintiff’s responses and asking for further responses by November 29, 2021. (Declaration of Melanie J. Ely (“Ely Decl.”), 5, Ex. D.) Plaintiff’s counsel responded to this letter on November 18, 2021. (Ely Decl. 5, Ex. E.) According to Ely, she has not receive further responses to this discovery as of the filing of this motion. (Ely Decl. 6.)

In opposition, Plaintiff contends that Defendants have failed to meet and confer in good faith before filing this motion because the November 17, 2021 letter did not address Defendants’ legal basis to compel a further response from Plaintiff. (Opposition, 2-3.)

The Ely Declaration is sufficient for purposes of Code of Civil Procedure section 2030.300. The court disagrees with Plaintiff that the November 17, 2021 meet and confer letter is insufficient. This letter addressed which of Plaintiff’s responses that Defendants believed were insufficient and some of the reasons why Defendants believed these responses to be insufficient. Defendants have demonstrated compliance with Code of Civil Procedure section 2030.300’s meet and confer requirements.

Discussion

1. Legal Authority

   On receipt of responses to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that an objection is without merit or too general or an answer is evasive or incomplete. (Code Civ. Proc., 2030.300, subd. (a)(1)-(3).) The moving party must also include reasons why further answers should be ordered: legal or factual arguments why the answers given were incomplete or nonresponsive, or the objections invalid. (Cal. Rules of Court, rule 3.1345(c).) The responding party has the burden to justify objections in response to a motion filed to compel further responses. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)

2. Timeliness

   Pursuant to Code of Civil Procedure section 2030.300, subdivision (c), a motion to compel further responses to interrogatories must be filed within 45 days of service of the verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, with additional time allowed for the manner of service. (Code Civ. Proc., 1013, subd. (a); 2030.300, subd. (c).) The 45-day requirement of Code of Civil Procedure, section 2030.300, subdivision (c) is mandatory and jurisdictional in the sense that it renders the court without authority to rule on a motion to compel further responses to discovery other than to deny the motion. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

   As discussed above, Plaintiff served verifications to his responses to Form Interrogatories, Set One and Special Interrogatories, Sets One and Two on October 25, 2021. Thus, Defendants’ Motion to Compel deadline was December 9, 2021. The instant motion was filed on December 8, 2021 and is timely.

3. Analysis

Defendants move to compel further responses to Form Interrogatories, Set One, number 14.1 Special Interrogatories, Set One, numbers 1, 33-37 and 40 and Special Interrogatories, Set Two, numbers 48, 52, 56.

1. Form Interrogatories, Set One: number 14.1

No. 14.1: Do YOU OR ANYONE ACTING ON YOUR BEHALF contend that any PERSON involved in the INCIDENT violated any statute, ordinance, or regulation and that the violation was a legal (proximate) cause of the INCIDENT? If so, identify the name, ADDRESS, and telephone number of each PERSON and the statute, ordinance, or regulation that was violated.

Plaintiff responded to this interrogatory by identifying various individuals from Facility and identifying a list of codes and regulations. (see Separate Statement in Support of Motion, 2-3.)

Defendants assert that Plaintiff’s response to this interrogatory is evasive because some of the code sections Plaintiff’s response cites to contain many subsections. (Id. at 3-6.) According to Defendants, Plaintiff was required to identify particular subsections which Plaintiff contends that Defendants violated. (Id.)

In opposition, Plaintiff contends that its response to this interrogatory was sufficient because Defendants have cited no authority for the proposition that Plaintiff’s response was required to identify subsections of each code with more particularity.

The court agrees with Plaintiff. Plaintiff’s response to Form Interrogatories, Set One number 14.1 is sufficient. This interrogatory only requires that Plaintiff identify the “statute, ordinance or violation” that Defendants violated, and Plaintiff’s response does so. Defendants have cited no authority for the proposition that Plaintiff was required to identify specific subsections of each code or ordinance.

For these reasons, Defendants’ motion is denied as to this interrogatory.

1. Special Interrogatories, Set One

No. 1: Identify any and all medical expenses incurred for injuries allegedly sustained by you as a result of the incident which is the subject of your complaint.

Plaintiff’s response to this interrogatory stated as follows: “Plaintiff avails himself of the right to produce documents in lieu of providing a written response, as per California Code of Civil Procedure 2030.210(a)(2). Attached hereto as Exhibit “1” are the billing for medical expenses, which provides information responsive to this request.” (Separate Statement in Support of Motion, 7.)

Defendants contend that a further response to this interrogatory is required because the response pointing to over a hundred pages of billing records constitutes a “broad statement that the information is available from a mass of documents,” which is insufficient. (Id.) In opposition, Plaintiff asserts that his response to this interrogatory was proper because he properly invoked the right to produce documents pursuant to Code of Civil Procedure section 2030.210(a)(2).

“The party to whom interrogatories have been propounded shall respond in writing under oath separately to each interrogatory by any of the following: (2) an exercise of the party’s option to produce writings. (Code Civ. Proc. 2030.210(a)(2).) Code of Civil Procedure section 2030.230 states:

If the answer to an interrogatory would necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from the documents of the party to whom the interrogatory is directed, and if the burden or expense of preparing or making it would be substantially the same for the party propounding the interrogatory as for the responding party, it is a sufficient answer to that interrogatory to refer to this section and to specify the writings from which the answer may be derived or ascertained. This specification shall be in sufficient detail to permit the propounding party to locate and to identify, as readily as the responding party can, the documents from which the answer may be ascertained. The responding party shall then afford to the propounding party a reasonable opportunity to examine, audit, or inspect these documents and to make copies, compilations, abstracts, or summaries of them.

(Code Civ. Proc. 2030.230.)

The court finds that Plaintiff’s response to this interrogatory is insufficient. According to Defendants’ motion, Plaintiff submitted “over one hundred pages” of billing records in response to this interrogatory. However, there does not appear to be any representation of which entries or parts of the bill produced represent expenses incurred as a result of the incident in the complaint.

For these reasons, Defendants’ motion is granted as to this interrogatory.

No. 33: Specifically, how did defendant’s facility fail to provide you with adequate hydration and nutrition as alleged in your complaint at paragraph 46?

Plaintiff responded to this interrogatory by stating that “As a direct result of the chronic understaffing at the Facility in both number and training, the Facility failed to provide Antonio Guerrero with adequate hydration and nutrition to stave off infections and skin breakdown.” (Separate Statement in Support of Motion, 8-9.) Plaintiff’s response then cites to several entries in his medical records and concludes that “[t]hese injuries were entirely preventable had there been sufficient staff on duty, in both number and competency, to actually implement the protections required by the Facility’s own Plan of Care and physician orders and assessments for Antonio Guerrero.” (Id.)

Defendants contend that a further response to this interrogatory is required because the response is evasive and cyclical in that “the facility failed to do that thing because the facility was understaffed.” (Id. at 10.) In opposition, Plaintiff contends that his response to this interrogatory is sufficient because the response sets forth specific dates he suffered injury and states that the injuries were due to Defendants’ specific actions. (Opposition, 4-5.)

The court has reviewed Plaintiff’s response to this interrogatory. Based upon this review, the court finds that a further response is not required. Plaintiff’s response identifies injuries Plaintiff suffered and states that Plaintiff suffered these injuries due to Defendants’ alleged lack of training and understaffing. This response is sufficient based on the call of this interrogatory as drafted.

No. 34: Identify the specific record(s), by bates and/or page numbers, which supports your contention that you did not receive adequate nutrition and hydration while at defendant’s facility.

Plaintiff objected to this interrogatory on the grounds that it was compound and disjunctive. (Separate Statement in Support of Motion, 10.)

Defendants assert that a further response to this interrogatory is required because the interrogatory is not compound or disjunctive. (Id. at 10-11.) According to Defendants, “nutrition and hydration” is not compound because the subject is “intake, whether it be liquid or food.” (Id.) In opposition, Plaintiff asserts that the objections to this interrogatory are proper because the interrogatory asks about hydration and nutrition, which are two separate subjects. (Opposition, 5.)

The court agrees with Plaintiff that the interrogatory is compound and disjunctive, as hydration and nutrition are two separate topics. However, Plaintiff’s cited authority does not stand for the proposition that Plaintiff is not required to respond to such an interrogatory. For these reasons, Defendants’ motion is granted as to this interrogatory.

No. 35: Which plan(s) of care did the facility fail to implement as alleged in your complaint at paragraph 46?

Plaintiff’s response to this interrogatory was as follows: “Care plans for risk for pressure ulcer risk, care plans for nutritional risk, care plans for dehydration risk, care plans for physical therapy, care plans regarding Antonio Guerrero pulling out his catheter and feeding tube. Discovery continues.” (Separate Statement in Support of Motion, 11.)

Defendants contend that a further response to this interrogatory is required because the response contains no identifying information about what care plans he is referring to. (Id. at 11-13.) According to Defendants, Plaintiff’s response is evasive because Plaintiff stayed for seven years at the Facility. (Id.) In opposition, Plaintiff contends that the response is sufficient because Defendants’ interrogatory did not ask Plaintiff to identify the care plans by date. (Opposition, 4-5.) Additionally, Plaintiff contends that every iteration of the care plans was not appropriately followed. (Id.)

The court finds that Plaintiff’s response to this interrogatory is sufficient. Defendants’ interrogatory asked Plaintiff to identify which "plan(s) of care” the Facility failed to implement, and Plaintiff identified a few plans of care by topic area. This is responsive to the interrogatory as drafted.

For these reasons, Defendants’ motion is denied as to this interrogatory.

No. 36: Which plan(s) of care did the facility fail to update as alleged in your complaint at paragraph 56?

Plaintiff’s response to this interrogatory is substantially identical to its response to interrogatory 35. The parties’ arguments in support of and in opposition to Defendants’ motion pertaining to this interrogatory are also substantially identical to the arguments made pertaining to interrogatory 35. However, the question is different. Plaintiff must identify which plans were not updated among all the plans.

Defendant’s motion is now granted as to this interrogatory.

No. 37: Which physician’s orders did the facility fail to implement as alleged in your complaint at paragraph 46?

Plaintiffs’ response to this interrogatory is substantially identical to its response to interrogatory 35. The parties’ arguments in support of and in opposition to Defendants’ motion pertaining to this interrogatory are also substantially identical to the arguments made pertaining to interrogatory 35. However, unless Plaintiff intends to prove that no physician’s orders were ever implemented, Plaintiff must identify which orders were not implemented.

Defendants’ motion is now granted as to this interrogatory.

No. 40: Specifically, which sudden or marked adverse changes in signs, symptoms or behavior did defendant’s facility fail to notify your physician about, as alleged in your complaint at paragraph 53?

Plaintiff’s response to this interrogatory states as follows: “[t]he Defendants owed a duty to Antonio Guerrero to notify a physician of any sudden or marked adverse change in signs, symptoms or behavior exhibited by a patient, which right is protected by 22 C.C.R. 72311(3)(b). The Defendants failed to meet this duty to Antonio Guerrero thereby causing Antonio Guerrero injury. Specifically, the Defendants failed to timely notify the physician of Antonio Guerrero’s decline in hydration and nutrition, aspiration pneumonia, and the development and decline of pressure ulcers. Discovery continues.”

Defendants argue that a further response to this interrogatory is required because Plaintiff’s response is evasive and ambiguous in that it contains no “identifying information and/or specifics such as dates that these alleged events occurred.” (Separate Statement in Support of Motion, 18-19.) According to Defendants, this information is insufficient because Plaintiff’s stay at Defendants’ Facility was for over seven years. (Id.)

In opposition, Plaintiff contends that his response to this interrogatory is sufficient for the same reasons that his responses to interrogatories 35-36 were sufficient.

Plaintiff must identify the specific responsive incidents.

1. Special Interrogatories, Set Two

Special Interrogatories, Set Two, numbers 48, 52, 56.

No. 48: Identify each writing as defined by Evidence Code section 250 that evidences, relates or refers to the facts upon which you base your claim against this specific propounding party for Elder Abuse (presently the First Cause of Action) as stated in the OPERATIVE COMPLAINT.

Plaintiff asserts in response to this interrogatory that Plaintiff has sought responsive information through discovery propounded to Defendants and through the September 30, 2021 deposition of Facility’s Person Most Knowledgeable. (Separate Statement in Support of Motion, 20.) According to Plaintiff’s response, Defendant failed to produce a witness for all topics and failed to respond to all requests for production. (Id.) Plaintiff’s response then identifies a long list of documents, including, for example, “Deficiencies and Complaints that DPH has investigated with respect to such facilities; Operating Budgets for all facilities owned, operated or managed by Defendants in the State of California; Claims, bills, and/or cost reports submitted to any state healthcare program by all facilities owned, operated, or managed by the Defendants in the State of California.” (Id. at 20-22.)

Defendants contend that a further response to this interrogatory is required because Plaintiff’s response vaguely identifies “a ton of documents obviously not responsive.”(Id. at 23.) Plaintiff contends that his response to this interrogatory is sufficient for the same reasons that his responses to interrogatories 35-36 were sufficient.

The court finds that a further response to this interrogatory is required. The court agrees with Defendants that Plaintiff’s response consists of referencing a long list of documents, not all of which are responsive. For example, the phrase “any and all writings between the defendants and responding party” is vague and unresponsive as it does not identify which “writings” Plaintiff refers to. Plaintiff’s opposition also does not specifically demonstrate how his response to this interrogatory is sufficient.

For these reasons, Defendants’ motion is granted as to this interrogatory.

No. 52: Identify each writing as defined by Evidence Code section 250 that evidences, relates or refers to the facts upon which you base your claim against this specific propounding party for Negligent Hiring and Supervision (presently the Second Cause of Action) as stated in the OPERATIVE COMPLAINT.

Plaintiffs’ response to this interrogatory is substantially identical to its response to interrogatory 48. The parties’ arguments in support of and in opposition to Defendants’ motion pertaining to this interrogatory are also substantially identical to the arguments made pertaining to interrogatory 48.

Having granted Defendants’ motion as to interrogatory 48, Defendants’ motion is now granted as to interrogatory 52 for the same reasons stated.

No. 56: Identify each writing as defined by Evidence Code section 250 that evidences, relates or refers to the facts upon which you base your claim for punitive damages as stated in the OPERATIVE COMPLAINT.

Plaintiffs’ response to this interrogatory is substantially identical to its response to interrogatory 52. The parties’ arguments in support of and in opposition to Defendants’ motion pertaining to this interrogatory are also substantially identical to the arguments made pertaining to interrogatory 52.

Having granted Defendants’ motion as to interrogatory 48, Defendants’ motion is now granted as to interrogatory 56 for the same reasons stated.

Monetary Sanctions

The court may impose sanctions against any party for engaging in conduct constituting a “misuse of the discovery process.” (Code Civ. Proc., 2023.030 (a).) Misuse of the discovery process includes “failing to respond or submit to an authorized method of discovery.” (Code Civ. Proc., 2023.010 (d).) Additionally, the court shall impose sanctions 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.” (Code Civ. Proc., 2030.300, subd. (d).)

Defendants request sanctions of $2,700 in connection with this motion. Plaintiff requests sanctions of $2,100 against Defendants in connection with his opposition. The court does not impose sanctions against either party, as it finds that both parties’ conduct contributed to the necessity of this motion such that imposing sanctions against either would be unjust.

Conclusion

Defendants’ motion is granted as to interrogatories 34, 36, 37, 40, 48, 52 and 56. The motion is otherwise denied. Defendants’ request for sanctions is denied. Both parties’ requests for sanctions are denied. Plaintiff is to serve verified, supplemental responses within 30 days. Defendants are to give notice.

b"

Case Number: *******1734 Hearing Date: December 28, 2021 Dept: 37

HEARING DATE: December 28, 2021

CASE NUMBER: *******1734

CASE NAME: Antonio Guerrero v. Shlomo Rechnitz, et al.

MOVING PARTY: Plaintiff Antonio Guerrero

OPPOSING PARTY: Defendant, Bakersfield Healthcare and Wellness Centre, LLC

TRIAL DATE: January 17, 2023

PROOF OF SERVICE: OK

MOTION: Plaintiff’s Motion to Compel Further Responses to Form Interrogatories, Set One

OPPOSITION: December 15, 2021

REPLY: December 20, 2021

TENTATIVE: Plaintiff’s motion is denied as to interrogatory 12.3 and otherwise moot. Plaintiff’s request for sanction is denied. Plaintiff is to give notice.

Background

This is an elder abuse action arising out of Plaintiff, Antonio Guerrero’s (“decedent”) residency at Defendant, Bakersfield Healthcare and Wellness Centre, LLC. (“Facility”) Decedent brings this action through his successor in interest, Carlos Guerrero. (“Mr. Guerrero”) According to the Complaint, Defendant Rockport Administrative Services, LLC (“Rockport”) manages and controls the Facility, and Defendant Steven Stroll (“Stroll”) is listed as Rockport’s manager. Additionally, Defendant Shlomo Rechnitz (“Rechnitz”) is allegedly the true owner and operator of the entity defendants.

According to the Complaint, all defendants acted as agents and alter egos of each other in operating the Facility. Defendants failed to comply with numerous laws and regulations governing the operations of skilled nursing facilities through their actions, including by unlawfully siphoning money from the Facility to Rechnitz, understaffing the Facility, employing unlicensed or unqualified employees and otherwise depriving the Facility of essential care services for its patients. Specifically, Defendants allegedly failed to provide Decedent adequate care during his residency despite knowledge that Decedent had severe pressure ulcers and required assistance with activities of daily living. Defendants’ allegedly failure to provide care for decedent resulted in decedent suffering injuries and ultimately in his death.

Plaintiff’s Complaint alleges the following causes of action: (1) elder abuse, (2) negligent hiring and supervision.

Plaintiff now moves to compel Facility to provide further responses to Form Interrogatories, Set One, numbers 12.1 and 12.3. Facility opposes the motion.

Procedural History

Plaintiff served Facility with Form Interrogatories, Set One on June 28, 2021. (Declaration of Stephen M. Garcia (“Garcia Decl.”), 6.) On August 12, 2021, Facility served its responses. (Garcia Decl. 8.) On September 2, 2021, Facility served amended responses. (Garcia Decl. 12, Exh. 8.)

On December 8, 2021, Facility served Second Amended Responses to Form Interrogatories, Set One, number 12.1. (Declaration of Melanie Ely (“Ely Decl.”), 17, Exh. C.)

Meet and Confer Efforts

A motion to compel further responses “shall be accompanied by a meet and confer declaration.” (Code Civ. Proc., ; 2030.300, subd. (b)(1).) The declaration must state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented in the motion. (Code Civ. Proc., 2016.040.) “[A] reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel…. Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294.)

Plaintiff submits the declaration of his counsel, Stephen M. Garcia (“Garcia”) to demonstrate compliance with statutory meet and confer requirements. Garcia attests that his office sent Facility’s counsel a meet and confer letter regarding Facility’s initial responses on August 13, 2021. (Garcia Decl. 9, Exh. 5.) On August 27, 2021, the parties participated in an Informal Discovery Conference regarding the discovery at issue. (Garcia Decl. 10.) Garcia attests that he sent a further meet and confer letter on September 27, 2021. (Garcia Decl. 13.)

The Garcia Declaration is sufficient for purposes of Code of Civil Procedure section 2030.300.

Discussion

1. Legal Authority

   On receipt of responses to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that an objection is without merit or too general or an answer is evasive or incomplete. (Code Civ. Proc., 2030.300, subd. (a)(1)-(3).) The moving party must also include reasons why further answers should be ordered: legal or factual arguments why the answers given were incomplete or nonresponsive, or the objections invalid. (Cal. Rules of Court, rule 3.1345(c).) The responding party has the burden to justify objections in response to a motion filed to compel further responses. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)

2. Timeliness

   Pursuant to Code of Civil Procedure section 2030.300, subdivision (c), a motion to compel further responses to interrogatories must be filed within 45 days of service of the verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, with additional time allowed for the manner of service. (Code Civ. Proc., 1013, subd. (a); 2030.300, subd. (c).) The 45-day requirement of Code of Civil Procedure, section 2030.300, subdivision (c) is mandatory and jurisdictional in the sense that it renders the court without authority to rule on a motion to compel further responses to discovery other than to deny the motion. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

   Facility served its amended responses to Form Interrogatories, Set One on September 2, 2021. Plaintiff filed his motion on September 29, 2021. Thus, the motion is timely.

3. Analysis

Plaintiff moves to compel a further response to Form Interrogatories, Set One, numbers 12.1 and 12.3.

No. 12.1: State the name, ADDRESS, and telephone number of each individual: (a) who witnessed the INCIDENT or the events occurring immediately before or after the INCIDENT; (b) who made any statement at the scene of the INCIDENT; (c) who heard any statements made about the INCIDENT by any individual at the scene; and (d) who YOU OR ANYONE ACTING ON YOUR BEHALF claim has knowledge of the INCIDENT (except for expert witnesses covered by Code of Civil Procedure section 2034).

Facility responded to this interrogatory by objecting that it seeks information protected by attorney-client privilege and work product privilege. (Separate Statement in Support of Motion, 2.) Additionally, Facility objected on the grounds that the interrogatory “seeks to require responding defendant to prepare plaintiff’s case” or undertake investigation of nonparties. (Id.)

Plaintiff asserts that a further response to this interrogatory is required because the identity and contact information of witnesses is generally discoverable. (Separate Statement in Support of Motion, 2-5.) Additionally, Plaintiff asserts that Facility has failed to substantiate its objections to this interrogatory by providing a privilege lot. (Id. at 5-7.)

In opposition, Facility asserts that a further response to this interrogatory is not required because the Second Amended Responses identified witnesses and it would be impossible to further divide the information provided in these responses into subsections given that the Facility asks for the identification of witnesses who may have cared for decedent over three years ago. (Opposition, 5-6.) As such, Facility represents that it has answered the interrogatory to the extent possible. (Id.)

In reply, Plaintiff acknowledges that Facility served Second Amended Responses to this interrogatory. (Reply, 2-5.) However, Plaintiff asserts that Facility’s responses remain deficient because Facility has failed to identify contact information for all of the witnesses listed in its responses. (Id.)

Plaintiff’s motion pertains to Facility’s amended responses to Form Interrogatories, Set One. Facility has served amended responses as to this interrogatory prior to the hearing on Plaintiff’s motion. Although Facility’s Second Amended Responses do not break down the responsive information into subparts, the responses identify contact information for witnesses where known and states that contact information will be provided “once known.” Thus, the court finds Plaintiff’s motion moot as to this interrogatory.

No. 12.3: Have YOU OR ANYONE ACTING ON YOUR BEHALF obtained a written or recorded statement from any individual concerning the INCIDENT? If so, for each statement state: (a) the name, ADDRESS, and telephone number of the individual from whom the statement was obtained; (b) the name, ADDRESS, and telephone number of the individual who obtained the statement; (c) the date the statement was obtained; and (d) the name, ADDRESS, and telephone number of each PERSON who has the original statement or a copy.

Facility objected to this interrogatory on the grounds that it is vague and ambiguous as to “written or recorded statement.” (Separate Statement in Support of Motion, 8.) Facility additionally objected that the interrogatory seeks information protected by California Evidence Code 1157 and 42 U.S.C. 1395i-3(b)(1)(B). (Id.) Facility also objected that the interrogatory improperly seeks Facility to prepare Plaintiff’s case and undertake investigation of nonparties. (Id.) Subject to these objections, Facility stated: “in accordance with plaintiff’s agreement to limit the time frame from January 1, 2018 to August 12, 2019 at the September 1, 2021 Informal Discovery Conference, defendant responds: Assuming plaintiff is not asking for “statements” that may be found in plaintiff’s medical records, none.” (Id. at 8-9.)

Plaintiff asserts that a further response to this interrogatory is required for the same reasons that a further response to interrogatory number 12.1. is required. (Id. at 9-10.) Additionally, Plaintiff asserts that a further response is required because Plaintiff has not agreed to limit this interrogatory to statements not contained in decedent’s medical records and the identity of witnesses from who statements have been taken is generally discoverable. (Id.) Plaintiff cites to Coito v. Superior Court (2012), 54 Cal. 4th 480 (Coito) for the argument that information responsive to this interrogatory is not privileged.

In Coito, the Supreme Court held that “information responsive to form interrogatory No. 12.3 is not automatically entitled as a matter of law to absolute or qualified work product privilege. Instead, the interrogatory usually must be answered.” (Id. at 502.) However, the California Supreme Court also stated that a party may be entitled to refuse to respond to this interrogatory by making a “a preliminary or foundational showing that answering the interrogatory would reveal the attorney's tactics, impressions, or evaluation of the case, or would result in opposing counsel taking undue advantage of the attorney's industry or efforts.” (Id.)

In opposition, Facility asserts that its response is sufficient because it clearly states that there are no responsive documents other than those contained in Plaintiff’s medical records. (Id. at 6-7.)

In reply, Plaintiff acknowledges that he agreed to limit the time frame of this interrogatory to January 1, 2019 to August 12, 2019. (Reply, 1.) Plaintiff’s reply also states: “Well it appears therefore from the response of the defense that there are statements and as such there must be a response as to the subparts of the inquiry.” (Id.)

The court finds that a further response to this interrogatory is not required. Facility’s response is sufficient because virtually every entry in a patient’s medical records could be deemed to be a statement. It would be an unreasonable burden to have to provide the responsive information about every entry in the medical records. To the extent Plaintiff wants information about the identity of persons making particular entries, that can be accomplished more reasonably through other means.

For these reasons, Plaintiff’s motion is denied as to this interrogatory.

Monetary Sanctions

The court may impose sanctions against any party for engaging in conduct constituting a “misuse of the discovery process.” (Code Civ. Proc., 2023.030 (a).) Misuse of the discovery process includes “failing to respond or submit to an authorized method of discovery.” (Code Civ. Proc., 2023.010 (d).) Additionally, the court shall impose sanctions 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.” (Code Civ. Proc., 2030.300, subd. (d).)

Plaintiff requests sanctions of $3,110 in connection with this motion. The court does not impose sanctions, as it finds that doing so would be unjust in this instance.

Conclusion

Plaintiff’s motion is denied as to interrogatory 12.3 and otherwise moot. Plaintiff’s request for sanction is denied. Plaintiff is to give notice.

"

b'

Case Number: *******1734 Hearing Date: December 23, 2021 Dept: 37

HEARING DATE: December 23, 2021

CASE NUMBER: *******1734

CASE NAME: Antonio Guerrero v. Shlomo Rechnitz, et al.

MOVING PARTY: Plaintiff Antonio Guerrero

OPPOSING PARTIES: Defendants, Bakersfield Healthcare and Wellness Centre, LLC and Rockport Administrative Services, LLC

TRIAL DATE: December 20, 2022

PROOF OF SERVICE: OK

MOTION: Plaintiff’s Motion to Compel Further Responses to Requests for Production, Set One

OPPOSITION: December 10, 2021

REPLY: December 14, 2021

TENTATIVE: Plaintiff’s motion is granted as to requests 10, 14 and 15 subject to the limitations stated in the court’s ruling. Plaintiff’s request for sanctions is denied. Rockport is serve verified, supplemental responses and produce documents within 30 days of this date. Plaintiff is to give notice.

Background

This is an elder abuse action arising out of Plaintiff, Antonio Guerrero’s (“decedent”) residency at Defendant, Bakersfield Healthcare and Wellness Centre, LLC. (“Facility”) Decedent brings this action through his successor in interest, Carlos Guerrero. (“Mr. Guerrero”) According to the Complaint, Defendant Rockport Administrative Services, LLC (“Rockport”) manages and controls the facility, and Defendant Steven Stroll (“Stroll”) is listed as Rockport’s manager. Additionally, Defendant Shlomo Rechnitz (“Rechnitz”) is allegedly the true owner and operator of the entity defendants.

According to the Complaint, all defendants acted as agents and alter egos of each other in operating the Facility. Defendants failed to comply with numerous laws and regulations governing the operations of skilled nursing facilities through their actions, including by unlawfully siphoning money from the Facility to Rechnitz, understaffing the Facility, employing unlicensed or unqualified employees and otherwise depriving the Facility of essential care services for its patients. Specifically, Defendants allegedly failed to provide Decedent adequate care during his residency despite knowledge that Decedent had severe pressure ulcers and required assistance with activities of daily living. Defendants’ allegedly failure to provide care for decedent resulted in decedent suffering injuries and ultimately in his death.

Plaintiff’s Complaint alleges the following causes of action: (1) elder abuse, (2) negligent hiring and supervision.

On September 30, 201, Plaintiff filed a Motion to Compel Further Responses to Requests for Production, Set One, numbers 3-15 and 17 from Rockport. On October 5, 2021, Plaintiff filed a Notice of Partial Withdraw of their motion. The notice indicated that the motion remained on calendar as to Requests 3, 4, 5, 7, 8, 9, 10, 11, 12, 14, 15, 17.

On December 6, 2021, Plaintiff filed a Second Notice of Partial Withdraw of its motion. The notice now indicated that the motion remains only calendar only as to requests 3, 4, 7, 10, 11, 12, 14, 15, 17. Rockport opposes Plaintiff’s motion.

Procedural History

Plaintiff served Rockport with Requests for Production, Set One on Rockport on June 28, 2021. (Declaration of Stephen M. Garcia (“Garcia Decl.”), 6.) On August 12, 2021, Rockport served its responses. (Garcia Decl. 8.)

On September 23, 2021, Rockport served amended responses to Requests for Production, Set One following meet and confer efforts. (Garcia Decl. 12, Exh. 8.) On November 30, 2021, Rockport served Second Amended Responses to Requests for Production, Set One. (Declaration of Melanie J. Ely (“Ely Decl.”), 17, Exh. D.)

On December 8, 2021, Rockport served Third Amended Responses to Requests for Production, Set One, as to requests 3, 4, 7, 11 and 12. (Opposition, Exh. H.)

Meet and Confer Efforts

A motion to compel further responses “shall be accompanied by a meet and confer declaration.” (Code Civ. Proc., ; 2031.310, subd. (b)(2).) The declaration must state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented in the motion. (Code Civ. Proc., 2016.040.) “[A] reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel…. Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294.)

Plaintiff submits the declaration of his counsel, Stephen M. Garcia (“Garcia”) to demonstrate compliance with statutory meet and confer requirements. Garcia attests that his office sent Rockport’s counsel a meet and confer letter regarding Rockport’s initial responses on August 13, 2021. (Garcia Decl. 9, Exh. 5.) On September 1, 2021, the parties participated in an Informal Discovery Conference regarding the discovery at issue. (Garcia Decl. 10.) Garcia attests that he sent a further meet and confer letter on September 27, 2021. (Garcia Decl. 13.)

The Garcia Declaration is sufficient for purposes of Code of Civil Procedure section 2031.310.

Discussion

1. Legal Authority

   On receipt of responses to requests for production, the propounding party may move for an order compelling a further response if the propounding party deems that a statement of compliance is incomplete, a representation of inability to comply is inadequate, incomplete, or evasive, or an objection in the response is without merit. (See Code Civ. Proc., 2030.310, subd. (a)(1)-(3).) The moving party must also include reasons why further answers should be ordered: legal or factual arguments why the answers given were incomplete or nonresponsive, or the objections invalid. (Cal. Rules of Court, rule 3.1345(c).) The responding party has the burden to justify objections in response to a motion filed to compel further responses. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)

2. Timeliness

Pursuant to Code of Civil Procedure section 2031.310, subdivision (c), a motion to compel further responses to inspection demands must be filed within 45 days of service of the verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, with additional time allowed for the manner of service. (Code Civ. Proc., 1013, subd. (a); 2031.310, subd. (c).) The 45-day requirement of Code of Civil Procedure, section 2031.310, subdivision (c) is mandatory and jurisdictional in the sense that it renders the court without authority to rule on a motion to compel further responses to discovery other than to deny the motion. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

Rockport served its amended responses on September 27, 2021. The instant motion was filed on September 30, 2021 and pertains to the amended responses. Thus, the instant motion is timely.

1. Analysis

According to Plaintiff’s Second Notice of Partial Withdraw of Motion, the following requests remain at issue in Plaintiff’s motion: 3, 4, 7, 10, 11, 12, 14, 15, 17.

On December 14, 2021, Plaintiff filed his reply to the instant motion. The motion indicates that Plaintiff withdraws the motion as to requests 3-9, and that requests 10, 11, 12, 14,15 and 17 remain at issue. As discussed above, Rockport served Third Amended Responses as to requests 3, 4, 7, 11 and 12 on December 6, 2021. The court finds that Plaintiff’s motion is moot as to requests 11 and 12 due to Rockport’s Third Amended Responses.

The court will analyze the parties arguments as to requests 10, 14, 15 and 17 below.

No. 10: All consultant reports prepared by YOU during the SPECIFIED TIME PERIOD which reference in whatsoever manner, FACILITY staffing, census, budgets, and/or interaction with the Department of Public Health Services.

Rockport objected to this request on the grounds that the request is overbroad, oppressive, burdensome, harassing, and not reasonably calculated to lead to the discovery of admissible evidence. (Separate Statement in Support of Opposition, 2-3.) Rockport further objects that the request seeks information protected from disclosure by HIPAA, California’s Confidentiality in Medical Records Act, and Evidence Code 1157 and 42 U.S.C. 1395i-3(b)(1)(B). (Id.)

Plaintiff asserts that a further response to this request is required because Rockport provided consultant services to the Facility and such documents, if any, would go towards establishing that the defendants are a single enterprise as alleged in the Complaint at paragraphs 10-13, and to establish that Defendants acted recklessly so as to warrant enhanced remedies under the Elder Abuse Act. (Id. at 3-12.) Plaintiff further asserts that Rockport’s objections are without merit because Rockport has not demonstrated how its privilege claims apply. (Id. at 13-18.)

In opposition, Rockport asserts that a further response to this request is not required because Evidence Code section 1157 applies to the documents at issue. (Id. at 18-27.) Specifically, Rockport asserts that Evidence Code section 1157 applies because all consultant reports at issue would be prepared by the Regional Quality Assurance Nurse, whose job involves the “oversight and evaluation” of the Facility’s resident care policies and procedures. (Id. at 21.) According to Rockport, documents that are derived from monitoring and evaluating the effectiveness of patient care programs are protected by Evidence Code section 1157. (Id.) Rockport cites to Santa Rosa Memorial Hospital v. Superior Court (1985) 174 Cal.App.3d 711, 725 (Santa Rosa) for this argument.

In Santa Rosa, the Court of Appeal stated that Evidence Code section 1157, by “its express terms, is in no way limited to medical staff committees composed solely, or primarily, of physicians.” (Id. at 719.) Additionally, “[i]nformation developed or obtained by hospital administrators or others which does not derive from an investigation into the quality of care or the evaluation thereof by a medical staff committee, and which does not disclose the investigative and evaluative activities of such a committee, is not rendered immune from discovery under section 1157 merely because it is later placed in the possession of a medical staff committee or made known to committee members; and this may be so even if the information in question may be relevant in a general way to the investigative and evaluative functions of the committee.” (Id. at 724.) However, “when application of the statute to disputed discovery is not facially apparent, as will often be the case, the burden on the party resisting discovery ordinarily cannot be sustained except upon judicial inquiry into the pertinent facts at an in camera hearing.” (Id. at 727.) If it is demonstrated at such a hearing that only a portion of the document is subject to Evidence Code section 1157, then the remainder may be compelled disclosed. (Id. at 728.)

In reply, Plaintiff asserts that a further response to this request is required because this request is now limited to the time frame of January 1, 2019 through August 12, 2019. (Motion, 1-6.) According to Plaintiff, responsive documents must be produced because Rockport actually does providing consulting services and the request does not seek disclosure of anyone’s medical records. (Id.) Plaintiff asserts that Rockport has failed to demonstrate how Evidence Code section 1157 applies to date. (Id.)

The court agrees with Plaintiff that a further response is required. The court accepts Plaintiff’s representation that the request is now limited to January 1, 2019 to August 12, 2019, the last date of Decedent’s residency at the Facility. The operative Complaint alleges that Rockport provided consulting services to the Facility and that all defendants acted as alter egos in operating the Facility such that it failed to meet patient care needs, including those of the decedent. Thus, information responsive to this request is reasonably calculated to lead to the discovery of admissible evidence. Additionally, pursuant to Santa Rosa, Rockport had the burden of demonstrating why all documents responsive to this request must be protected from disclosure by Evidence Code section 1157. Rockport’s statement that responsive documents are used to evaluate patient care policies is insufficient to meet this burden.

For these reasons, Plaintiff’s motion is granted as to this request for January 1, 2019 to August 12, 2019.

No. 14: All DOCUMENTS reflecting efforts by YOU to ensure that the FACILITY Administrator and/or FACILITY Director of Nursing were fit to perform their job duties with the FACILITY during the SPECIFIED TIME PERIOD. (The names and identifying information of all residents other than the PLAINTIFF should be redacted from the production.)

Rockport objected to this request on the grounds that it lacked foundation as to Rockport’s duty pursuant to 22 C.C.R. 72329.1(a). (Separate Statement in Support of Opposition, 34.) Rockport additionally objected that the request violates privacy rights of third parties. (Id.)

Plaintiff asserts that a further response to this request is required because it is reasonably calculated to lead to the discovery of admissible evidence on the second cause of action. (Id. at 35-39.) Plaintiff additionally represents that he has repetitively offered to enter into a protective order regarding the information at issue in this request and that Plaintiff’s offers have been refused. (Id.)

In opposition, Rockport asserts that a further response is not required because the request is overbroad, as it asks for all documents “reflecting” Rockport’s efforts. (Id. at 40-44.) According to Rockport, it is obligated to refuse to produce employee personnel files until Plaintiff makes a more specific showing of which employee was negligent in caring for Plaintiff and that the requested documents are directly relevant. (Id.)

In reply, Plaintiff asserts that a further response to this request is required because the request does not require the entire personnel file, but rather only documents evidencing Rockport’s efforts to determine the fitness of the Facility’s employees. (Reply, 7-8.)

The court finds that a further response to this request is required. The Complaint alleges the Administrator and Director of Nursing were unfit to perform their duties, were hired, and that Rockport knew or should have known that these individuals were unfit but failed to properly verify this information. (Complaint, 82-86.) Thus, the request is reasonably calculated to lead to the discovery of admissible evidence as to these allegations because it asks for documents evidencing Rockport’s efforts to verify that its Administrator and Director of Nursing were fit for their positions. The court additionally agrees with Plaintiff that Rockport’s third party privacy objections cannot bar production of documents in response to this request. Plaintiff is not seeking production of any employee records but rather, documents evidencing Rockport’s efforts.

For these reasons, Plaintiff’s motion is granted as to this request.

No: 15: All DOCUMENTS reflecting efforts by YOU during the SPECIFIED TIME PERIOD to ensure that the FACILITY provided services consistent with the visions of 42 C.F.R. 483.30 and 22 C.C.R. 72329.1 to have sufficient number of personnel on duty at the FACILITY on a 24- hour basis to provide appropriate custodial and professional services to residents in accordance resident care plans

Rockport objected to this request on the grounds that it is vague and unintelligible, as well as overbroad, burdensome, not reasonably calculated to lead to the discovery of admissible evidence and harassing. (Separate Statement in Support of Opposition, 45.)

Plaintiff asserts that a further response to this request is required because responsive documents “determine required staffing and place the Defendant on notice of problem areas in the Facility operations.” (Id. at 45.)

In opposition, Rockport asserts that a further response to this request is not required because the request is vague and ambiguous as phrased. (Id. at 46-47.) Rockport further asserts that to the extent Plaintiff is looking for acuity documents, such documents come from the Facility rather than Rockport. (Id.) Rockport represents that Plaintiff has also asked this request to the Facility and thus, the request is burdensome and harassing. (Id.)

The court finds that a further response to this request is required. Based on the parties’ moving and opposing papers, the parties are in agreement that this request seeks acuity documents regarding the Facility.

According to Rockport, it is not required to provide a further response to this request because such acuity documents are with the Facility, not with Rockport. The court disagrees. Plaintiff is has to the right to propound discovery on any defendant(s) in this action. The fact that a different party may possess responsive documents does not free Rockport, the responding party, from providing a substantive response to Plaintiff’s request which is in compliance with the Code of Civil Procedure. Rockport’s current response contains only objections and is deficient.

For these reasons, Plaintiff’s motion is granted as to this request.

No. 17: Please provide all DOCUMENTS upon which the name Shlomo Rechnitz is listed as it pertains to FACILITY operations during the time period of the residency of the PLAINTIFF in the FACILITY.

Rockport objected to this request on the grounds that it is overbroad, burdensome, oppressive, harassing and not reasonably calculated to lead to the discovery of admissible evidence. (Separate Statement in Support of Opposition, 47-48.)

Plaintiff asserts that a further response to this request is required for the same reasons as to all of the previous requests. (Id.) In opposition, Rockport asserts that no further response is required because its objections have merit, including that the request is overbroad, burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. (Id.)

The court agrees that no further response to this request is required. The request asks Rockport to produce all documents on which Rechnitz’s name is listed “as it pertains” to “FACILITY operations.” These phrases are vague, overbroad, and not reasonably calculated to lead to the discovery of admissible evidence because it is unclear what Plaintiff means by either of these phrases and which documents Plaintiff seeks. Although the Complaint alleges that Rechnitz was the “true owner” of Rockport, Plaintiff has failed to demonstrate how this request is reasonably calculated to lead to the discovery of admissible evidence.

For these reasons, Plaintiff’s motion is denied as to this request.

Monetary Sanctions

The court may impose sanctions against any party for engaging in conduct constituting a “misuse of the discovery process.” (Code Civ. Proc., 2023.030 (a).) Misuse of the discovery process includes “failing to respond or submit to an authorized method of discovery.” (Code Civ. Proc., 2023.010 (d).) Additionally, the court shall impose sanctions against “any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to requests for production, 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., 2031.310, subd. (h).)

Plaintiff moves for an award of sanctions of $4,600 in connection with this motion. The court does not award sanctions against Rockport, as it finds that Rockport acted with substantial justification such that awarding sanctions would be unjust in this instance.

Conclusion

Plaintiff’s motion is granted as to requests 10, 14 and 15 subject to the limitations stated in the court’s ruling. Plaintiff’s request for sanctions is denied. Rockport is serve verified, supplemental responses and produce documents within 30 days of this date. Plaintiff is to give notice.

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