This case was last updated from Los Angeles County Superior Courts on 04/08/2021 at 09:45:58 (UTC).

EUN AH KIM ET AL VS PROVIDENCE HEALTH SYSTEM SOUTHERN CALIFO

Case Summary

On 03/26/2018 EUN AH KIM filed a Personal Injury - Medical Malpractice lawsuit against PROVIDENCE HEALTH SYSTEM SOUTHERN CALIFO. This case was filed in Los Angeles County Superior Courts, Torrance Courthouse located in Los Angeles, California. The Judges overseeing this case are MARC D. GROSS, JON R. TAKASUGI, HOLLY E. KENDIG and DEIRDRE HILL. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9440

  • Filing Date:

    03/26/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Medical Malpractice

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Torrance Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

MARC D. GROSS

JON R. TAKASUGI

HOLLY E. KENDIG

DEIRDRE HILL

 

Party Details

Plaintiffs, Guardian Ad Litems and Not Classified By Court

BUSH TRACY

KIM EUN AH

Plaintiff and Petitioner

KIM EUN AH

Defendants, Respondents and Not Classified By Court

TAHA NIMA M.D.

ESTOLAS AIMEE R.N.

PROVIDENCE LITTLE COMPANY OF MARY MEDICAL

PROVIDENCE HEALTH SYSTEM-SOUTHERN

DOES 1-100

CLAUDE HEBERT D.O.

TARNAY MICHAEL M.D.

PROVIDENCE HEALTH SYSTEM-SOUTHERN DBA PROVIDENCE LITTLE COMPANY OF MARY MEDICAL CENTER TORRANCE

Minors and Not Classified By Court

BUSH-LEWIS MADISON

LEWIS SHARLEMAGNE II

BUSH TRACY

PROVIDENCE LITTLE COMPANY OF MARY MEDICAL

Attorney/Law Firm Details

Minor, Plaintiff and Petitioner Attorneys

HOWARD NEIL M. ESQ.

HOWARD NEIL MACY

Defendant and Respondent Attorneys

CARROLL RICHARD D. ESQ.

LAW YUK KWONG

CARROLL RICHARD DOUGLAS

 

Court Documents

Motion re: - MOTION RE: RELEASE OF RECORDS FROM TORRANCE POLICE DEPARTMENT TORRANCE FIRE DEPARTMENT SUBJECT TO A PROTECTIVE ORDER

3/4/2021: Motion re: - MOTION RE: RELEASE OF RECORDS FROM TORRANCE POLICE DEPARTMENT TORRANCE FIRE DEPARTMENT SUBJECT TO A PROTECTIVE ORDER

Opposition - OPPOSITION PLAINTIFFS OPPOSITION TO DEFENDANT, NIMA TAHA, M.D.S MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATIONS OF NEIL M. HOWARD AND GELSEY L. GOODSTEIN

3/16/2021: Opposition - OPPOSITION PLAINTIFFS OPPOSITION TO DEFENDANT, NIMA TAHA, M.D.S MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATIONS OF NEIL M. HOWARD AND GELSEY L. GOODSTEIN

Declaration - DECLARATION DECLARATION OF GELSEY L. GOODSTEIN, M.D. IN OPPOSITION TO DEFENDANT, NIMA TAHA, M.D.S MOTION FOR SUMMARY JUDGMENT

3/16/2021: Declaration - DECLARATION DECLARATION OF GELSEY L. GOODSTEIN, M.D. IN OPPOSITION TO DEFENDANT, NIMA TAHA, M.D.S MOTION FOR SUMMARY JUDGMENT

Reply - DEFENDANT NIMA TAHA, M.D.'S REPLY TO PLAINTIFFS' OBJECTIONS TO EVIDENCE IN SUPPORT OF HIS MOTION FOR SUMMARY JUDGMENT

3/25/2021: Reply - DEFENDANT NIMA TAHA, M.D.'S REPLY TO PLAINTIFFS' OBJECTIONS TO EVIDENCE IN SUPPORT OF HIS MOTION FOR SUMMARY JUDGMENT

Motion to Compel - MOTION TO COMPEL PLAINTIFFS NOTICE OF MOTION AND MOTION TO COMPEL THE FURTHER DEPOSITION TESTIMONY OF SUE KIM AND PRODUCTION OF DOCUMENTS; REQUEST FOR MONETARY SANCTIONS; DECLARATI

2/16/2021: Motion to Compel - MOTION TO COMPEL PLAINTIFFS NOTICE OF MOTION AND MOTION TO COMPEL THE FURTHER DEPOSITION TESTIMONY OF SUE KIM AND PRODUCTION OF DOCUMENTS; REQUEST FOR MONETARY SANCTIONS; DECLARATI

Separate Statement

2/24/2021: Separate Statement

Order - [PROPOSED] ORDER RE EX PARTE APPLICATION TO STAY LITIGATION

7/27/2020: Order - [PROPOSED] ORDER RE EX PARTE APPLICATION TO STAY LITIGATION

Motion to Compel Further Discovery Responses - PLAINTIFFS NOTICE OF MOTION AND MOTION TO COMPEL FURTHER ANSWERS TO DEMAND FOR IDENTIFICATION, PRODUCTION AND INSPECTION OF DOCUMENTS, SET ONE (1), PROP

7/28/2020: Motion to Compel Further Discovery Responses - PLAINTIFFS NOTICE OF MOTION AND MOTION TO COMPEL FURTHER ANSWERS TO DEMAND FOR IDENTIFICATION, PRODUCTION AND INSPECTION OF DOCUMENTS, SET ONE (1), PROP

Motion to Compel Further Discovery Responses - NOTICE OF MOTION AND MOTION TO COMPEL FURTHER ANSWERS TO REQUEST FOR ADMISSIONS, SET THREE

7/17/2020: Motion to Compel Further Discovery Responses - NOTICE OF MOTION AND MOTION TO COMPEL FURTHER ANSWERS TO REQUEST FOR ADMISSIONS, SET THREE

Notice Re: Continuance of Hearing and Order

4/23/2020: Notice Re: Continuance of Hearing and Order

Declaration - DECLARATION OF YUK K. LAW, ESQ. IN SUPPORT OF NIMA TAHA, M.D.S MOTION FOR SUMMARY JUDGMENT

3/6/2020: Declaration - DECLARATION OF YUK K. LAW, ESQ. IN SUPPORT OF NIMA TAHA, M.D.S MOTION FOR SUMMARY JUDGMENT

Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW DEPO TO TAKE PLACE IN JURY ROOM.)

2/28/2020: Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW DEPO TO TAKE PLACE IN JURY ROOM.)

Motion for Protective Order - PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR A PROTECTIVE ORDER, ORDER COMPELLING JESSICA WELLMAN, R.N. TO APPEAR FOR A SECOND DEPOSITION

10/15/2019: Motion for Protective Order - PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR A PROTECTIVE ORDER, ORDER COMPELLING JESSICA WELLMAN, R.N. TO APPEAR FOR A SECOND DEPOSITION

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR PROTECTIVE ORDER)

8/7/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR PROTECTIVE ORDER)

Order - ORDER [PROPOSED] ORDER GRANTING EX PARTE APPLICATION TO CONTINUE TRIAL

7/24/2019: Order - ORDER [PROPOSED] ORDER GRANTING EX PARTE APPLICATION TO CONTINUE TRIAL

Declaration - DECLARATION DECLARATION OF NEIL M. HOWARD IN OPPOSITION TO DEFENDANTS EX PARTE APPLICATION TO CONTINUE THE TRIAL

7/24/2019: Declaration - DECLARATION DECLARATION OF NEIL M. HOWARD IN OPPOSITION TO DEFENDANTS EX PARTE APPLICATION TO CONTINUE THE TRIAL

Ex Parte Application - EX PARTE APPLICATION TO CONTINUE TRIAL; DECLARATION OF ELIZABETH A. EVANS, ESQ.

7/25/2019: Ex Parte Application - EX PARTE APPLICATION TO CONTINUE TRIAL; DECLARATION OF ELIZABETH A. EVANS, ESQ.

APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM-CIVIL

4/2/2018: APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM-CIVIL

174 More Documents Available

 

Docket Entries

  • 05/11/2021
  • Hearing05/11/2021 at 10:00 AM in Department M at 825 Maple Ave., Torrance, CA 90503; Jury Trial

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  • 05/04/2021
  • Hearing05/04/2021 at 10:00 AM in Department M at 825 Maple Ave., Torrance, CA 90503; Final Status Conference

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  • 04/15/2021
  • Hearing04/15/2021 at 10:00 AM in Department M at 825 Maple Ave., Torrance, CA 90503; Hearing on Motion for Summary Judgment

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  • 04/15/2021
  • Hearing04/15/2021 at 10:00 AM in Department M at 825 Maple Ave., Torrance, CA 90503; Hearing on Motion to Compel THE FURTHER DEPOSITION TESTIMONY OF HOWARD WANG, R.N.

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  • 04/15/2021
  • Hearing04/15/2021 at 10:00 AM in Department M at 825 Maple Ave., Torrance, CA 90503; Hearing on Motion for Summary Judgment

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  • 04/15/2021
  • Hearing04/15/2021 at 10:00 AM in Department M at 825 Maple Ave., Torrance, CA 90503; Hearing on Motion for Protective Order

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  • 04/15/2021
  • Hearing04/15/2021 at 10:00 AM in Department M at 825 Maple Ave., Torrance, CA 90503; Hearing on Motion for Protective Order

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  • 04/15/2021
  • Hearing04/15/2021 at 08:30 AM in Department M at 825 Maple Ave., Torrance, CA 90503; Hearing on Motion to Compel ....

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  • 04/06/2021
  • DocketJoinder to Motion (Joinder to Motion for Protective Order); Filed by Nima M.D. Taha (Defendant); Hebert Claude, D.O. (Defendant)

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  • 04/02/2021
  • Docketat 08:30 AM in Department M, Deirdre Hill, Presiding; Hearing on Motion for Protective Order - Not Held - Advanced and Continued - by Court

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269 More Docket Entries
  • 05/03/2018
  • DocketFirst Amended Complaint; Filed by Eun Ah Kim (Plaintiff); Tracy Bush (Plaintiff); Madison Bush-Lewis (Plaintiff) et al.

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  • 04/06/2018
  • DocketSUMMONS

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  • 04/06/2018
  • DocketSummons Issued; Filed by Clerk

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  • 04/06/2018
  • DocketSummons; Filed by Clerk

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  • 04/02/2018
  • DocketAPPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM-CIVIL

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  • 04/02/2018
  • DocketAPPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM-CIVIL

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  • 04/02/2018
  • DocketApplication ; Filed by Plaintiff/Petitioner

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  • 04/02/2018
  • DocketApplication ; Filed by Plaintiff/Petitioner

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  • 03/26/2018
  • DocketComplaint; Filed by Eun Ah Kim (Plaintiff)

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  • 03/26/2018
  • DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

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Tentative Rulings

Case Number: BC699440    Hearing Date: March 9, 2021    Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

EUN AH KIM, et al.,

Plaintiffs,

Case No.:

BC699440

vs.

[Tentative] RULING

PROVIDENCE HEALTH SYSTEM-SOUTHERN CALIFORNIA,

Defendants.

Hearing Date: March 9, 2021

Moving Parties: Plaintiff Eun Ah Kim

Responding Party: Defendant Providence Health System-Southern California

Motion to Compel Further Deposition Testimony of Ryan Minich, R.N.

The court considered the moving, opposition, and reply papers.

RULING

The motion is DENIED as to Question Nos. 1 to 8.

BACKGROUND

On March 26, 2018, plaintiffs Eun Ah Kim, Sharlemagne Lewis, II, a minor, and Madison Bush-Lewis, a minor filed a complaint against Providence, Aimee Estolas, R.N., and Nima Taha, M.D. for wrongful death. Plaintiffs allege that Sharlemagne Lewis was a patient at hospital. Defendants breached their duty of care by allowing him to leave the hospital on July 29, 2017, when he was a danger to himself and others. On August 1, 2017, he took his life. Defendants’ negligence was a substantial factor in the death of Lewis.

On May 3, 2018, plaintiffs filed a FAC.

On July 30, 2020, the court stayed the action for six-months.

On September 1, 2020, the court granted plaintiff’s motion for a trial preference. The stay was lifted as of October 1, 2020.

LEGAL AUTHORITY

CCP §2025.480 states: “(a) If a deponent fails to answer any question or to produce any document, . . . that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.

(b) The motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040. . . .

(i) If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition. . . .

(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 an answer or 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. . . .”

DISCUSSION

Plaintiff Eun Ah Kim requests an order compelling deponent Ryan Minich, R.N. to appear again for deposition and to answer questions concerning those questions he failed to answer at his prior deposition and follow up questions.

At this deposition on December 1, 2020, defense counsel instructed Minich not to answer questions, which, plaintiff argues, are directly relevant to the key issues in this case, namely (1) whether nurses had the authority to initiate restraints without a physician order and (2) if so, under what circumstances, and (3) why restraints were not initiated for this patient if the nurses had such authority. On February 3, 2021, plaintiffs’ counsel sent a letter to defense counsel requesting that Nurse Minich be produced for a second deposition to answer the above questions.

Plaintiff argues that the questions do not seek privileged information and that defendant’s objections were improper. Plaintiff explains that the Torrance PD had placed plaintiffs’ father and husband on a 5150 hold. The emergency room doctor also placed the patient on a medical hold. Nurse Minich was the supervising nurse who was contacted by a PCU nurse after the patient was admitted to the hospital. Plaintiff asserts that the patient was allowed to leave the hospital against medical advice and that he was not evaluated by a psychiatrist to determine if he was capable of consenting to leave. Further, plaintiff contends, no nurse initiated physical restraints, as authorized by the hospital’s policies. Plaintiffs’ position is that the hospital should not have allowed him to leave and, if necessary, to physically restrain him as he was a danger to himself.

In opposition, defendant argues that Minich should not be compelled to provide retrospective, expert opinions at this time before expert designation has taken place without establishing that he has the requisite legal foundation to provide such opinions. Defendant argues that Minch should not be compelled to provide his contentions as to what “could have” or “should have” been done or not done differently that night because that is testimony under the purview of expert testimony. Defendant contends that as a treating party he is entitled to the protections afforded by CCP §2034; consequently, any questions involving hypothetical scenarios, speculation within the realm of expert opinion, and medical opinions not formed at the time of the event in question, involve after-the-fact opinions should not be compelled. Further, defendant argues, “contention” questions at depositions are improper as the purpose of an oral deposition is “confined . . . to learning, what a party has done, seen, heard, or been told.” Rifkind v. Superior Court (1994) 22 Cal. App. 4th 1255, 1262. Defendant asserts that Minich is a percipient witness and that he testified extensively as a percipient witness as to the facts and circumstances of July 29, 2017 and what transpired. Defendant contends that at the prior deposition, plaintiff’s counsel was argumentative with the witness about what “could have been done differently.”

The court rules as follows (see Separate Statement for objections and arguments):

Question 1: So, the answer is you would never recommend restraining a patient from leaving the hospital under any circumstances; correct?

Deny. Defendant’s objections have merit, as the question is overbroad, calls for an opinion, and lacks foundation.

Question 2: And you are aware that those patients that are on a 5150 hold if they’re a danger to themselves and then leave the hospital, they could hurt themselves; correct?

Deny. Defendant’s objections have merit as it calls for an improper opinion.

Question 3: No, not any patient. A patient that was on a 5150 hold that was –because of a suicide intention and then is admitted to the PCU. If that patient leaves the hospital, that patient is at risk of hurting themselves. You understand that; right?

Deny. Defendant’s objections have merit, including that it lacks foundation and calls for an improper opinion.

Question 4: My question is whether the contact was made before or after the patient left because you can appreciate that the nurse may not call the doctor until after the patient leaves. That is a possibility you understand, correct?

Deny. Defendant’s objections have merit. It is argumentative, lacks foundation, and calls for an improper opinion.

Question 5: You would want to know that to see if she followed the hospital’s policy, correct? As a House Supervisor working that shift, you would want to know if Nurse Estolas followed her training as it relates to when the doctor was contacted; correct? And did you—you would have asked her that question.

Deny. Defendant’s objections have merit. The question is overbroad and lacks foundation and calls for opinion testimony.

Question 6: Is there anything that you can think of that Nurse Estolas could have told you about a patient who intended to leave the hospital against medical advice for you to do something different and by what means ordering chemical or physical restraints?

Deny. Defendant’s objections have merit, including that the question calls for him to render an opinion.

Question 7: If you were called by Nurse Estolas and told there was a patient in the PCU who was admitted from the Emergency Department who was on a 5150 hold in the Emergency Department and had said that he wasn’t going to stay and that he was going to sign out against medical advice and that he had never been evaluated by a psychiatrist, what would you have said to her?

Deny. Defendant’s objections have merit, including that the question calls for him to render an opinion.

Question 8: But you’re trained as a nurse when a patient is on a medical hold not to physically or chemically made any efforts to stop the patient from leaving the hospital knowing that patient’s safety could be in jeopardy; correct?

The deponent responded that “[c]hemical and physical restraints are required for a physician to make that order. Other means of communication with the patient and persuasion are attempted to dissuade that patient from leaving the hospital.”

Deny. Deponent responded.

Accordingly, the motion is DENIED.

Plaintiff requests $3,247.50 in sanctions. The court finds that defendant acted with substantial justification; thus, sanctions are not warranted.

Plaintiff is ordered to give notice of the ruling.

Case Number: BC699440    Hearing Date: November 19, 2020    Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

EUN AH KIM, et al.,

Plaintiffs,

Case No.:

BC699440

vs.

[Tentative] RULING

PROVIDENCE HEALTH SYSTEM SOUTHERN CALIFORNIA, et al.,

Defendants.

Hearing Date: November 19, 2020 (continued from November 4, 2020)

Moving Parties: Plaintiffs Eun Ah Kim, et al.

Responding Party: Defendant Providence Health System Southern California

Motion to Compel the Deposition of Defendant by and through Its Employees and Agents

The court considered the moving, opposition, reply, and supplemental papers and supplemental declarations. At the hearing on November 4, 2020, the court ordered declarations re confirmed dates set for depositions to be filed by November 11. The court also ordered that by November 13, 2020, declarations were to be filed re information for parties not set for depositions, indicating alternatives and counsel’s efforts.

RULING

The motion is MOOT. All the depositions have been scheduled except for Daniel Im. Counsel are to meet and confer to schedule Im’s deposition in February 2021.

BACKGROUND

On March 26, 2018, plaintiffs Eun Ah Kim, Sharlemagne Lewis, II, a minor, and Madison Bush-Lewis, a minor filed a complaint against Providence, Aimee Estolas, R.N., and Nima Taha, M.D. for wrongful death. Plaintiffs allege that Sharlemagne Lewis was a patient at hospital. Defendants breached their duty of care by allowing him to leave the hospital on July 29, 2017, when he was a danger to himself and others. On August 1, 2017, he took his life. Defendants’ negligence was a substantial factor in the death of Lewis.

On May 3, 2018, plaintiffs filed a FAC.

On July 30, 2020, the court stayed the action for six-months.

On September 1, 2020, the court granted plaintiff’s motion for a trial preference. The stay was lifted as of October 1, 2020.

LEGAL AUTHORITY

CCP §2025.450(a) provides: “If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, . . , 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 . . . 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 . . . described in the deposition notice.”

CCP §2025.450(b) provides, “A motion under subdivision (a) shall comply with both of the following:

(1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

(2) The motion shall be accompanied by a 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.”

DISCUSSION

Plaintiffs request an order compelling defendant Providence to produce the following employees and agents for depositions pursuant to CCP 2025.450 and documents set forth in the deposition notice: Brenda Alejandre (sitter on page 8 of the chart); Sitter 2 (sitter on page 12 of the chart); Howard Wang, R.N. (charge nurse); Ryan Minich, R.N. (house supervisor); Jessica Wellman, R.N.; Director of Nursing; Director of Security; Alfonso Garcia (security guard); Daniel Im (security guard); Joseph Clayton (security guard); and PMKs concerning policies and procedures that were in effect at hospital in 2017 that applied to patient in the Emergency Department that were on a medical hold, hospital’s email and data retention policy, and the last known home address of various people.

Plaintiffs argue that there is no legal justification for defendant’s position that its employees and agents need not appear for depositions as previously agreed and scheduled.

In opposition, defendant acknowledged that in March 2020 there were depositions of several Providence witnesses on calendar and others being coordinated but that by March 13, 2020, Providence was experiencing emergency conditions because of the pandemic. The depositions were taken off calendar because of restrictions on gatherings. Also, Providence’s activities are essential functions. Further, Providence argues, under the circumstances of the pandemic, the depositions are currently unduly burdensome.

Before the motion was heard on the date set for hearing on July 30, 2020, the court issued a stay based on Providence’s ex parte application and the motion was taken off calendar. The stay was lifted as of October 1, 2020, and this motion was put back on calendar for hearing. On October 21, 2020, the court ordered counsel to meet and confer as to scheduling the depositions.

In a supplemental opposition, Providence states that it is expected that it will provide dates in accordance with the court’s order and thus the motion will be moot. Further, Providence requests that the court deny the motion as to a PMK as to addresses of the Providence-affiliated witnesses assuming the depositions of the witnesses proceed.

In a supplemental reply, plaintiffs state that they are prepared to withdraw the motion as it relates to six witnesses, the PMKs concerning the last known address of witnesses whose depositions have been noticed. As of the October 29, 2020, only three depositions are on calendar. Further, defendant has only offered to produce one deponent in November 2020.

Defendant argues that sanctions are not warranted because it has acted with substantial justification because of the pandemic and stay. Plaintiff is offering to reduce the request for sanctions to $2,550.

At the prior hearing, the court ordered counsel to provide declarations as to the status of scheduling the depositions.

According to counsels’ supplemental declarations filed on November 12 and 13, all of the depositions have been scheduled except as to security guard Daniel Im. Plaintiff wants Im’s deposition to take place on January 7 or 8. Defense counsel cannot “reliably promise” the deposition of Im prior to January 27, 2020 because he is on paternity leave. Plaintiff’s counsel states that he is in trial on January 27, 2020. Counsel are to meet and confer as to a date in February 2021.

The motion is thus MOOT.

Plaintiffs are ordered to serve notice of this ruling.

Case Number: BC699440    Hearing Date: November 13, 2020    Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

EUN AH KIM, et al.,

Plaintiffs,

Case No.:

BC699440

vs.

[Tentative] RULING

PROVIDENCE HEALTH SYSTEM SOUTHERN CALIFORNIA,

Defendant.

Hearing Date: November 13, 2020

Moving Parties: Plaintiff Sharlemagne Lewis, II

Responding Party: Defendant Providence Health System-Southern California

Motion to Compel Further Answers to Special Interrogatories, Set Two

The court considered the moving, opposition, and rely papers.

RULING

The motion is GRANTED if defendant has not served responses, and plaintiff is awarded sanctions against defendant in the amount of $860. If responses have been served prior to the hearing date, then the request for sanctions is denied.

BACKGROUND

On March 26, 2018, plaintiffs Eun Ah Kim, Sharlemagne Lewis, II, a minor, and Madison Bush-Lewis, a minor filed a complaint against Providence, Aimee Estolas, R.N., and Nima Taha, M.D. for wrongful death. Plaintiffs allege that Sharlemagne Lewis was a patient at hospital. Defendants breached their duty of care by allowing him to leave the hospital on July 29, 2017, when he was a danger to himself and others. On August 1, 2017, he took his life. Defendants’ negligence was a substantial factor in the death of Lewis.

On May 3, 2018, plaintiffs filed a FAC.

On July 30, 2020, the court stayed the action for six-months.

On September 1, 2020, the court granted plaintiff’s motion for a trial preference. The stay was lifted as of October 1, 2020.

LEGAL AUTHORITY

45-Day Rule: This motion must be served within 45 days after service of the response in question (extended if served by mail, overnight delivery, or fax; see CCP § 1013); otherwise, the demanding party waives the right to compel any further response to the CCP §2031.010 demand. CCP §§2031.310(c), 2016.050; see Sperber v. Robinson (1994) 26 Cal. App. 4th 736, 745. The 45-day time limit is mandatory and jurisdictional. Sexton v. Superior Court (1997) 58 Cal. App. 4th 1403, 1410. The parties, however, can also agree in writing on a specific later date by which to file the motion to compel. CCP §2031.310(c).

Meet-and-Confer Requirement: The motion to compel further responses must be accompanied by a declaration showing “a reasonable and good faith attempt” to resolve the issues outside of court (so-called “meet and confer”). CCP §§2016.040, 2031.310(b)(2).

Separate Statement: Any motion involving the content of a discovery request or the responses to such a request shall be accompanied by a separate statement. This includes a motion to compel further responses to demand for inspection of documents or tangible things. CRC Rule 3.1020(a)(3).

“If ‘good cause’ is shown by the moving party, the burden is then on the responding party to justify any objections made to document disclosure (the same as on motions to compel answers to interrogatories or deposition questions. . . ).” Id. at 8:1496 (citation omitted).

DISCUSSION

Plaintiff Sharlemange Lewis, II requests that the court compel defendant Providence to respond further to Special Interrogatories, Set Two, Nos. 14, 16, 18, 19, 20, and 21.

On March 6, 2020, plaintiff served Special Interrogatories, Set Two. On April 10, 2020, defendant served responses.

Defendant objected on the grounds that the requests were not reasonably calculated to lead to the discovery of admissible evidence and were vague, ambiguous, and overbroad. Defendant also responded that under the current circumstances of the pandemic, there were not sufficient resources of the hospital to respond to such discovery. Counsel met and conferred.

In opposition, defendant asserts that it offered to provide responses by November 6, 2020. If not, it requests reasonable time, up to an additional 14 days to complete the responses.

Defendant’s objections lack merit, and the opposition does not address them.

If defendant served responses by the hearing date, then the request for sanctions is denied, and the motion is moot. If not, then the motion is granted and the court awards sanctions in the amount of $860 ($400/hr. x 2 hrs., filing fee) against defendant.

Moving plaintiff is ordered to give notice of this ruling.

Case Number: BC699440    Hearing Date: November 04, 2020    Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

EUN AH KIM, et al.,

Plaintiffs,

Case No.:

BC699440

vs.

[Tentative] RULING

PROVIDENCE HEALTH SYSTEM SOUTHERN CALIFORNIA, et al.,

Defendants.

Hearing Date: November 4, 2020

Moving Parties: Plaintiffs Eun Ah Kim, et al.

Responding Party: Defendant Providence Health System Southern California

Motion to Compel the Deposition of Defendant by and through Its Employees and Agents

The court considered the moving, opposition, reply, and supplemental papers.

RULING

The motion is GRANTED.

BACKGROUND

On March 26, 2018, plaintiffs Eun Ah Kim, Sharlemagne Lewis, II, a minor, and Madison Bush-Lewis, a minor filed a complaint against Providence, Aimee Estolas, R.N., and Nima Taha, M.D. for wrongful death. Plaintiffs allege that Sharlemagne Lewis was a patient at hospital. Defendants breached their duty of care by allowing him to leave the hospital on July 29, 2017, when he was a danger to himself and others. On August 1, 2017, he took his life. Defendants’ negligence was a substantial factor in the death of Lewis.

On May 3, 2018, plaintiffs filed a FAC.

On July 30, 2020, the court stayed the action for six-months.

On September 1, 2020, the court granted plaintiff’s motion for a trial preference. The stay was lifted as of October 1, 2020.

LEGAL AUTHORITY

CCP §2025.450(a) provides: “If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, . . , 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 . . . 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 . . . described in the deposition notice.”

CCP §2025.450(b) provides, “A motion under subdivision (a) shall comply with both of the following:

(1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

(2) The motion shall be accompanied by a 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.”

DISCUSSION

Plaintiffs request an order compelling defendant Providence to produce the following employees and agents for depositions pursuant to CCP 2025.450 and documents set forth in the deposition notice: Brenda Alejandre (sitter on page 8 of the chart); Sitter 2 (sitter on page 12 of the chart); Howard Wang, R.N. (charge nurse); Ryan Minich, R.N. (house supervisor); Jessica Wellman, R.N.; Director of Nursing; Director of Security; Alfonso Garcia (security guard); Daniel Im (security guard); Joseph Clayton (security guard); and PMKs concerning policies and procedures that were in effect at hospital in 2017 that applied to patient in the Emergency Department that were on a medical hold, hospital’s email and data retention policy, and the last known home address of various people.

Plaintiffs argue that there is no legal justification for defendant’s position that its employees and agents need not appear for depositions as previously agreed and scheduled.

In opposition, defendant acknowledged that in March 2020 there were depositions of several Providence witnesses on calendar and others being coordinated but that by March 13, 2020, Providence was experiencing emergency conditions because of the pandemic. The depositions were taken off calendar because of restrictions on gatherings. Also, Providence’s activities are essential functions. Further, Providence argues, under the circumstances of the pandemic, the depositions are currently unduly burdensome.

Before the motion was heard on the date set for hearing on July 30, 2020, the court issued a stay based on Providence’s ex parte application and the motion was taken off calendar. The stay was lifted as of October 1, 2020, and this motion was put back on calendar for hearing. On October 21, 2020, the court ordered counsel to meet and confer as to scheduling the depositions.

In a supplemental opposition, Providence states that it is expected that it will provide dates in accordance with the court’s order and thus the motion will be moot. Further, Providence requests that the court deny the motion as to a PMK as to addresses of the Providence-affiliated witnesses assuming the depositions of the witnesses proceed.

In a supplemental reply, plaintiffs state that they are prepared to withdraw the motion as it relates to six witnesses, the PMKs concerning the last known address of witnesses whose depositions have been noticed. As of the October 29, 2020, only three depositions are on calendar. Further, defendant has only offered to produce one deponent in November 2020.

Defendant argues that sanctions are not warranted because it has acted with substantial justification because of the pandemic and stay. Plaintiff is offering to reduce the request for sanctions to $2,550.

As defendant has not provided dates for all the deponents, the motion is GRANTED. As for sanctions, the court reserves the right to award sanctions if defendant does not provide available dates for the remaining deponents within seven days.

Plaintiffs are ordered to serve notice of this ruling.

Case Number: BC699440    Hearing Date: October 28, 2020    Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

EUN AH KIM, et al.,

Plaintiffs,

Case No.:

BC699440

vs.

[Tentative] RULING

PROVIDENCE HEALTH SYSTEM SOUTHERN CALIFORNIA,

Defendant.

Hearing Date: October 28, 2020

Moving Parties: Plaintiff Sharlemagne Lewis, II

Responding Party: Defendant Providence Health System-Southern California

(1) Motion to Compel Further Answers to Request for Admissions, Set No. Two

(2) Motion to Compel Further Answers to Request for Admissions, Set No. Three

(3) Motion to Compel Further Answers to Request for Admissions, Set No. Four

The court considered the moving, opposition, and reply papers.

RULING

The motions are GRANTED. Defendant Providence is ordered to further respond to plaintiff’s Requestd for Admissions, Sets Two, Three, and Four, within 30 days. Defendant Providence is ordered to pay sanctions in the amount of $2,607 to plaintiffs within 30 days.

BACKGROUND

On March 26, 2018, plaintiffs Eun Ah Kim, Sharlemagne Lewis, II, a minor, and Madison Bush-Lewis, a minor filed a complaint against Providence, Aimee Estolas, R.N., and Nima Taha, M.D. for wrongful death. Plaintiffs allege that Sharlemagne Lewis was a patient at hospital. Defendants breached their duty of care by allowing him to leave the hospital on July 29, 2017, when he was a danger to himself and others. On August 1, 2017, he took his life. Defendants’ negligence was a substantial factor in the death of Lewis.

On May 3, 2018, plaintiffs filed a FAC.

On July 30, 2020, the court stayed the action for six-months.

On September 1, 2020, the court granted plaintiff’s motion for a trial preference. The stay was lifted as of October 1, 2020.

LEGAL AUTHORITY

45-Day Rule: This motion must be served within 45 days after service of the response in question (extended if served by mail, overnight delivery, or fax; see CCP § 1013); otherwise, the demanding party waives the right to compel any further response to the CCP §2031.010 demand. CCP §§2031.310(c), 2016.050; see Sperber v. Robinson (1994) 26 Cal. App. 4th 736, 745. The 45-day time limit is mandatory and jurisdictional. Sexton v. Superior Court (1997) 58 Cal. App. 4th 1403, 1410. The parties, however, can also agree in writing on a specific later date by which to file the motion to compel. CCP §2031.310(c).

Meet-and-Confer Requirement: The motion to compel further responses must be accompanied by a declaration showing “a reasonable and good faith attempt” to resolve the issues outside of court (so-called “meet and confer”). CCP §§2016.040, 2031.310(b)(2).

Separate Statement: Any motion involving the content of a discovery request or the responses to such a request shall be accompanied by a separate statement. This includes a motion to compel further responses to demand for inspection of documents or tangible things. CRC Rule 3.1020(a)(3).

Under CCP §2033.290, “(a) On receipt of a response to request for admissions, the party requesting admissions may move for an order compelling a further response if that party deems that either or both of the following apply: (1) An answer to a particular request is evasive or incomplete. (2) An objection to a particular request is without merit or too general. . . . (d) 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 responses, 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.”

DISCUSSION

Plaintiff Sharlemange Lewis, II requests that the court compel defendant Providence to respond further to the Requests for Admissions, Sets Two, Three, and Four.

On March 6, 2020, plaintiff Sharlemange Lewis, II served Set Two. On April 10, 2020, defendant served objections.

On March 9, 2020, plaintiff served Set Three. On April 13, 2020, defendant served objections.

On March 10, 2020, plaintiff served Set Four. On April 13, 2020, defendant served objections.

Defendant objected on the grounds that the requests were vague, ambiguous, compound, overbroad, and unintelligible and that each request was not reasonably calculated to lead to the discovery of admissible evidence and were vague, ambiguous, and overbroad. Defendant also responded that under the current circumstances of the pandemic, there were not sufficient resources of the hospital to respond to such discovery. Counsel met and conferred.

In opposition, defendant asserts that its opposition is “based upon disruption and interference on” its “ability to participate in litigation and discovery because of the burdens resulting” from the pandemic. Defendant asserts that since the September 1, 2020 order, defense counsel has been seeking responses from defendant, but that defendant’s efforts are “still hindered” as it continues to suffer the consequences of furloughs, restructuring, and layoffs. Defendant requests an additional 30 days to respond further to plaintiffs’ requests.

Defendant continues to object to Set Two, No. 56, which defendant argues is a hypothetical question that is not a request to determine “the truth of specified matters of fact, opinion relating to fact, or application of law to fact.” CCP §2033.010.

No. 56 requests: “Admit that if Decedent lacked the capacity of consenting to leave Your hospital against medical advice, the Decedent would have been restrained until the police arrived to take the Decedent.” The court finds that it is proper as it relates to a hospital policy or procedure.

Defendant’s objections lack merit, and the opposition does not address them specifically. Defendant has agreed to provide further responses but seeks additional time. The court finds that 30 days is sufficient as requested by defendant.

Plaintiff requests $9,600, plus filing fees, in sanctions, against defendant, but, in the spirit of compromise, is willing to accept $3,000. Defendant has not shown substantial justification. The court finds that $2,607 ($400/hr. x 6 hrs. plus $207 in filing fees) is a reasonable amount to be imposed in total for the three motions against defendant.

The motions are GRANTED.

Plaintiffs are ordered to give notice of this ruling.

Case Number: BC699440    Hearing Date: October 21, 2020    Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

EUN AH KIM, et al.,

Plaintiffs,

Case No.:

BC699440

vs.

[Tentative] RULING

PROVIDENCE HEALTH SYSTEM SOUTHERN CALIFORNIA,

Defendant.

Hearing Date: October 21, 2020

Moving Parties: (1) Plaintiff Eun Ah Kim, (2) plaintiff Madison Bush-Lewis

Responding Party: Defendant Providence Health System-Southern California

(1) Motion to Compel Further Answers to Demand for Identification, Production and Inspection of Documents, Set No. 7

(2) Motion to Compel Further Answers to Demand for Identification, Production and Inspection of Documents, Set No. 1

The court considered the moving and untimely-filed opposition.

RULING

The motions are GRANTED. Defendant Providence is ordered to further respond and to produce responsive documents to plaintiffs’ demands for identification, production, and inspection of documents, within 30 days.

BACKGROUND

On March 26, 2018, plaintiffs Eun Ah Kim, Sharlemagne Lewis, II, a minor, and Madison Bush-Lewis, a minor filed a complaint against Providence, Aimee Estolas, R.N., and Nima Taha, M.D. for wrongful death. Plaintiffs allege that Sharlemagne Lewis was a patient at hospital. Defendants breached their duty of care by allowing him to leave the hospital on July 29, 2017, when he was a danger to himself and others. On August 1, 2017, he took his life. Defendants’ negligence was a substantial factor in the death of Lewis.

On May 3, 2018, plaintiffs filed a FAC.

On July 30, 2020, the court stayed the action for six-months.

On September 1, 2020, the court granted plaintiff’s motion for a trial preference. The stay was lifted as of October 1, 2020.

LEGAL AUTHORITY

45-Day Rule: This motion must be served within 45 days after service of the response in question (extended if served by mail, overnight delivery, or fax; see CCP § 1013); otherwise, the demanding party waives the right to compel any further response to the CCP §2031.010 demand. CCP §§2031.310(c), 2016.050; see Sperber v. Robinson (1994) 26 Cal. App. 4th 736, 745. The 45-day time limit is mandatory and jurisdictional. Sexton v. Superior Court (1997) 58 Cal. App. 4th 1403, 1410. The parties, however, can also agree in writing on a specific later date by which to file the motion to compel. CCP §2031.310(c).

Meet-and-Confer Requirement: The motion to compel further responses must be accompanied by a declaration showing “a reasonable and good faith attempt” to resolve the issues outside of court (so-called “meet and confer”). CCP §§2016.040, 2031.310(b)(2).

Separate Statement: Any motion involving the content of a discovery request or the responses to such a request shall be accompanied by a separate statement. This includes a motion to compel further responses to demand for inspection of documents or tangible things. CRC Rule 3.1020(a)(3).

Request for Production of Documents

On receipt of a response to an inspection demand, the demanding party may move for an order compelling further responses 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. CCP § 2031.310(a). A statement of compliance shall state that the production, inspection, and related activity demanded will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production. CCP § 2031.220. “A representation of inability to comply with [a] particular demand for inspection . . . shall affirm that a diligent search and reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. This statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” CCP § 2031.230.

A motion to compel further response to requests for production “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” CCP § 2031.310(b)(1). “To establish ‘good cause,’ the burden is on the moving party to show both: [1] Relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case); and [2] Specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). The fact that there is no alternative source for the information sought is an important factor in establishing ‘good cause’ for inspection. But it is not essential in every case.” Weil & Brown, Civil Procedure Before Trial, 8:1495.6 (citations omitted). “Declarations are generally used to show the requisite ‘good cause’ for an order to compel inspection. The declarations must contain ‘specific facts’ rather than mere conclusions.” Id. at 8:1495.7 (citation omitted). “The declarations may be on information and belief, if necessary. However, in such cases, the ‘specific facts’ supporting such information and belief (the sources of the information) must also be alleged.” Id. at 8:1495.8 (citation omitted). “Most declarations are made by the attorney for the moving party, who is usually more familiar with the relevancy and ‘specific facts’ constituting ‘good cause’ for inspection.” Id. at 8:1495.9.

“If ‘good cause’ is shown by the moving party, the burden is then on the responding party to justify any objections made to document disclosure (the same as on motions to compel answers to interrogatories or deposition questions. . . ).” Id. at 8:1496 (citation omitted).

DISCUSSION

Plaintiff Eun Ah Kim requests that the court compel defendant Providence to respond further to her Demand for Identification, Production, and Inspection of Documents, Set Seven, Nos. 1-7.

Plaintiff Madison Bush-Lewis requests that the court compel defendant Providence to respond further to her Demand for Identification, Production, and Inspection of Documents, Set One, Nos.1-9.

On March 6, 2020, plaintiff Eun Ah Kim served her demand. On April 10, 2020, defendant served objections and no documents.

On March 10, 2020, plaintiff Madison Bush-Lewis served her demand. On April 13, 2020, defendant served objections and no documents.

Defendant objected on the grounds that the requests were not reasonably calculated to lead to the discovery of admissible evidence and were vague, ambiguous, and overbroad. Defendant also responded that under the current circumstances of the pandemic, there were not sufficient resources of the hospital to respond to such discovery. Counsel met and conferred.

In an untimely-filed opposition, defendant asserts that its opposition is “based upon disruption and interference on” its “ability to participate in litigation and discovery because of the burdens resulting” from the pandemic. Defendant contends that it “has not yet regained its balance to have complied with the outstanding discovery requests.” Defendant asserts that since the September 1, 2020 order, defense counsel has been seeking responses from defendant, but that defendant’s efforts are “still hindered” as it continues to suffer the consequences of furloughs, restructuring, and layoffs. Defendant requests an additional 30 days to respond further to plaintiffs’ demands.

Plaintiffs have shown good cause. Defendant’s objections lack merit, and the opposition does not address them. Defendant has agreed to produce responsive documents but seeks additional time. The court finds that 30 days is sufficient as requested by defendant.

The court denies plaintiffs’ requests for sanctions.

The motions are GRANTED.

Plaintiffs are ordered to give notice of this ruling.

Case Number: BC699440    Hearing Date: September 01, 2020    Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

EUN AH KIM, et al.,

Plaintiffs,

Case No.:

BC699440

vs.

[Tentative] RULING

PROVIDENCE HEALTH SYSTEM-SOUTHERN CALIFORNIA DBA PROVIDENCE LITTLE COMPANY OF MARY MEDICAL CENTER, et al.,

Defendants.

Hearing Date: September 1, 2020

Moving Parties: Plaintiff Madison Bush-Lewis, by and through her guardian ad litem

Responding Party: Defendants Providence Health System-Southern California, Aimee Estolas, R.N., Nima Taha, M.D., and Hebert Claude, D.O.

Motion for Trial Preference

The court considered the moving, oppositions, and reply papers.

RULING

The motion is GRANTED. The stay is lifted as of November 1, 2020. The FSC is set for May 25, 2021, at 10:00 a.m. Trial is set for June 1, 2021, at 10:00 a.m. The court sets an OSC re why a discovery referee should not be appointed for November 2, 2020, at 8:30 a.m.

BACKGROUND

On March 26, 2018, plaintiffs Eun Ah Kim, Sharlemagne Lewis, II, a minor, and Madison Bush-Lewis, a minor filed a complaint against Providence, Aimee Estolas, R.N., and Nima Taha, M.D. for wrongful death. Plaintiffs allege that Sharlemagne Lewis was a patient at hospital. Defendants breached their duty of care by allowing him to leave the hospital on July 29, 2017, when he was a danger to himself and others. On August 1, 2017, he took his life. Defendants’ negligence was a substantial factor in the death of Lewis.

On May 3, 2018, plaintiffs filed a FAC.

On July 27, 2020, the court granted defendants’ ex parte application to stay the entire case for six months. A trial setting conference was set for January 15, 2021.

On July 31, 2020, plaintiffs filed the herein motion.

LEGAL AUTHORITY

CCP §36(b) states: “A civil action to recover damages for wrongful death or personal injury shall be entitled to preference upon the motion of any party to the action who is under 14 years of age unless the court finds that the party does not have a substantial interest in the case as a whole. . . .”

Under CCP 36(g), “Upon the granting of a motion for preference pursuant to subdivision (b), a party in an action based upon a health provider's alleged professional negligence, as defined in Section 364, shall receive a trial date not sooner than six months and not later than nine months from the date that the motion is granted.”

“We hold that section 36, subdivision (b) is mandatory.” Peters v. Superior Court (1989) 212 Cal. App. 3d 218, 224.

DISCUSSION

Plaintiff Madison Bush-Lewis, by and through her guardian ad litem, requests that the court grant preference in trial setting pursuant to CCP §36(b) on the ground that this action is a civil action to recover damages for wrongful death brought by a minor under the age of 14 who has a substantial interest in the outcome of the case as a whole. Minor is 12 years old.

In opposition, defendants argue that the motion is improper because the case is stayed. Defendants assert that plaintiffs did not seek reconsideration of the stay order dated July 30, 2020. Further, General Order dated August 10, 2020 states that, “the Court will not set any Civil jury trials to commence before January 2021.” General Order, 9.c.i. Defendants also argues that plaintiff does not have a “substantial interest” in the action because in a wrongful death suit, all heirs, all persons of interest, must be joined in a single action, i.e., “only one action for wrongful death may be brought . . . and . . . that action is indivisible. . . .” Adams v. Superior Court (2011) 196 Cal. App. 4th 71, 76-77 (citation omitted). Thus, defendants argue, all plaintiffs are considered one party.

The motion is GRANTED as CCP §36(b) is mandatory.

Plaintiffs are ordered to give notice of this ruling.

Case Number: BC699440    Hearing Date: December 12, 2019    Dept: SWB

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. B

EUN AH KIM, et al.,

Plaintiffs,

Case No.:

BC666440

vs.

[Tentative] RULING

PROVIDENCE HEALTH SYSTEM-SOUTHERN CALIFORNIA, et al.,

Defendants.

Hearing Date: December 12, 2019

Moving Parties: Defendants Providence Health System-Southern California and Aimee Estolas, R.N.

Responding Party: Plaintiffs Eun Ah Kim, et al.

Application for Order Appointing Discovery Referee to Supervise Depositions and Motion for Protective Order

The court considered the moving and opposition papers.

RULING

The motion is DENIED WITHOUT PREJUDICE.

BACKGROUND

This is a wrongful death case. On March 26, 2018, plaintiffs Eun Ah Kim, Sharlemagne Lewis, II, a minor by and though his guardian ad litem, Tracy Bush, and Madison Bush-Lewis, a minor by and through her guardian ad litem, Tracy Bush filed a complaint against Providence Health System-Southern California dba Providence Little Company of Mary Medical Center Torrance, Aimee Estolas, R.N., and Nima Taha, M.D. for negligence. Plaintiffs allege that defendants owed Sharlemagne Lewis a duty of care to provide him with competent and adequate medical care and services, including talking all appropriate steps to prevent him from injuring himself. Defendants breached the duty of care by allowing him to leave the medical center when he was a danger to himself and others.

LEGAL AUTHORITY

Discovery referee

The court has power to appoint a referee to supervise the deposition, if necessary, to hear and determine any and all discovery motions and disputes relevant to discovery in the action, and to report findings and make recommendations thereon. CCP §639(a)(5). Under §639(d), all appointments of referees pursuant to this section shall be by written order and shall include the following: “When the referee is appointed pursuant to paragraph (a)(5), the exceptional circumstances requiring the reference, which must be specific to the circumstances of the particular case.” “Exceptional circumstances” are required to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon. CCP §639(d)(2). A discovery referee may be appointed to monitor depositions where antagonism between the parties and/or counsel might otherwise prolong the proceedings and frustrate discovery. Cal. Practice Guide: Civ. Proc. Before Trial, ¶8:1804.5. “Where either party anticipates that the other will try to frustrate legitimate discovery at a deposition, the referee’s presence can curtail such conduct.” Id., ¶8:873.

Under CCP §645.1(b), when a referee is appointed pursuant to section 639, at any time after a determination of ability to pay is made as specified in section 639(d)(6), the court may order the parties to pay the fees of referees who are not employees or officers of the court at the time of appointment, as fixed pursuant to section 1023, in any manner determined by the court to be fair and reasonable, including an apportionment of the fees among the parties. Under §639(d)(6)(A), the written order shall include “[e]ither a finding that no party has established an economic inability to pay a pro rata share of the referee’s fee or a finding that one or more parties has established an economic inability to pay a pro rata share of the referee’s fees and that another party has agreed voluntarily to pay that additional share of the referee’s fee. A court shall not appoint a referee at a cost to the parties if neither of these findings is made.”

Protective Order

Under CCP §2025.420, “(a) 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 motion shall be accompanied by a meet and confer declaration under Section 2016.040. (b) 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. This protective order may include, but is not limited to, one or more of the following directions: . . . .”

The burden is on the moving party to establish “good cause” for whatever relief is requested. Generally, a deponent seeking a protective order will be required to show that the burden, expense, or intrusiveness involved in the discovery procedure clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. Emerson Electric Co. v. Superior Court (1997) 16 Cal. 4th 1101, 1110.

DISCUSSION

Defendants request an order appointing a discovery referee to supervise the depositions of certain hospital personnel from Providence and any percipient witnesses produced by defendants. Defendants also request a protective order related to the scheduling of these depositions so that they are rescheduled to allow for the appointment of a discovery referee to attend the depositions.

Defendants explain that eight depositions were noticed for August 2020. Before the motion was heard, the case was transferred to Dept. B from the Personal Injury Hub and scheduled for this date. Defendants contend that they reasonably anticipate that plaintiffs’ counsel’s conduct will frustrate the legitimate purpose of discovery based on his conduct at Jessica Wellman, R.N.’s deposition on July 26, 2019. Defendants assert that plaintiffs’ counsel engaged in conduct and lines of questioning that were harassing and intimidating to the witness and engaged in aggressive conduct, including repetitive and argumentative lines of questions that were designed to, and had the effect of, embarrassing, humiliating, and badgering the witness to the point where she began crying. Defendants argue that plaintiffs’ counsel failed to adhere to the Guidelines for Civility in Litigation.

In opposition, plaintiffs argue that a referee is not necessary because any future deposition can be terminated and a protective order sought based on the conduct that occurred.

The court finds that the appointment of a discovery referee is premature. Although there is antagonism between counsel, defense counsel can utilize CCP §2025.470 to suspend a deposition and to seek a protective order if plaintiffs’ counsel’s conduct causes “annoyance, embarrassment, or oppression.”

The motion is DENIED WITHOUT PREJUDICE.

Defendants are ordered to give notice of the ruling.

*********************************************************************************

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. B

EUN AH KIM, et al.,

Plaintiffs,

Case No.:

BC666440

vs.

[Tentative] RULING

PROVIDENCE HEALTH SYSTEM-SOUTHERN CALIFORNIA, et al.,

Defendants.

Hearing Date: December 12, 2019

Moving Parties: Defendants Providence Health System-Southern California and Aimee Estolas, R.N.

Responding Party: Plaintiffs Eun Ah Kim, et al.

Motion for a Qualified Protective Order

RULING

BACKGROUND

DISCUSSION

Defendants request a HIPAA-Compliant Qualified Protective Order (“QPO”) to facilitate the exchange of Protected Health Information (“PHI”) contained in decedent Sharlemagne Lewis’ medical records and the law enforcement records.

Defendants contend that they have been unable to obtain subpoenaed medical records and pertinent records from multiple providers, including the Torrance PD and Torrance Fire Department.  Defendants argue that the subpoenaed records at issue are highly relevant to plaintiffs’ claims.

In opposition, plaintiffs do not oppose a QPO.  Rather, they oppose the release of certain documents and records, which is not before the court at this time.

Defendants are ordered to give notice of the ruling.

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