WILMA VASQUEZ VS SHLOMO RECHNITZ, ET AL.

Tentative Rulings

Case Number: *******1953 Hearing Date: March 20, 2023 Dept: O

HEARING DATE: Monday, March 20, 2023

RE: WILMA VASQUEZ vs SHLOMO RECHNITZ, et al (*******1953)

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

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

Tentative Ruling

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

Background

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

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

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

On February 1, 2023, Plaintiff filed the instant Motion.

On February 22, 2023, Defendants filed their Opposition.

On February 27, 2023, Plaintiff filed its Reply.

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

Discussion

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

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

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

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

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

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

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

Conclusion

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

As for monetary sanctions, the court declines to impose monetary sanctions.

Case Number: *******1953 Hearing Date: February 3, 2023 Dept: O

HEARING DATE: Friday, February 3, 2023

RE: WILMA VASQUEZ vs SHLOMO RECHNITZ, et al (*******1953)

PLAINTIFF’S MOTION FOR TRIAL PREFERENCE (“Motion”) PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE 36

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

Tentative Ruling

PLAINTIFF’S MOTION FOR TRIAL PREFERENCE PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE 36 is DENIED.

Background

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

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

On December 5, 2022, Plaintiff filed the instant motion.

On December 8, 2022, Plaintiff served the summons and complaint upon the opposing Defendants.

On January 9, 2023, Opposing Defendants filed their Answer.

On January 11, 2023, Plaintiff’s Order for Publication was granted as to Defendant Shlomo Rechnitz.

On January 23, 2023, Opposing Defendants filed their Opposition to the Motion.

On January 26, 2023, Plaintiff filed its Reply.

Legal Standard

Plaintiff moves for trial preference based on CCP section 36 subdivision (d). (Motion p. 1.)

For litigants who are not over the age of 70, the court retains discretion pursuant to CCP section 36(d).[1] The statute provides that “[i]n its discretion, the court may also grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference.” (CCP 36(d)) (emphasis added).

Discussion

Plaintiff moves for trial preference because Plaintiff is “bedbound, morbidly obese 54-year-old woman with a medical history of respiratory failure, obesity related alveolar hypoventilation syndrome, +1 edema, hypothyroidism, hypertension, congestive heart failure, diabetes, asthma, obstructive sleep apnea on CPAP, severe hypercapnia, depression, GERD, kidney disease, severe weakness, history of intubation and a history of trachea.” (Motion p. 1.) Based on her health conditions, Plaintiff’s expert, Dr. Shahab Attarchi, has “determined that Wilma Vasquez suffers from health conditions such that to a reasonable degree of medical certainty there exists substantial medical doubt of Wilma Vasquez’s survival beyond six months.” (Motion p. 1.)

In opposition, Opposing Defendants advance the following arguments: (1) Defendant Shlomo has not yet been served with the complaint; (2) Dr. Attarchi’s declaration is conclusory; and (3) Defendants would be severely prejudiced.

Here, the court agrees with the Opposing Defendants on all three points.

First, Plaintiff in its Reply does not dispute that Defendant Shlomo has not been served but effectively argues that the delay in service is justified because Shlomo was evading service. Whether he has been evading service is irrelevant to notice requirements. Putting aside the concern with a violation of Defendant Shlomo’s due process rights for Plaintiff’s failure to yet serve him with the summons and complaint, CCP section 36(c)(1) requires that the moving party “file and serve a motion for preference supported by a declaration of the moving party that all essential parties have been served with process or have appeared.” Here, however, Plaintiff has provided no such declaration. And to the extent that case law allows for Plaintiff to circumvent this requirement, Plaintiff has proffered no legal authority in its Reply. Therefore, for this reason alone, the motion is denied.

Second, a review of Dr. Attarchi’s declaration does not provide any medical reporting (i.e., the facts to lay the foundation) nor an explanation of how Plaintiff’s numerous health conditions (e.g., increase risk of cardiac event, unintentional weight loss, worsening edema, etc.) will likely cause her to not live beyond the next 6 months. Rather, Dr. Attarchi’s declaration conclusively states that Plaintiff suffers from certain health conditions and said certain health conditions place a patient for a high risk of “debility and death.” To the extent that Plaintiff relies on Dr. Attarchi’s accurate prediction in 30 other cases, that is inconsequential for numerous reasons including, but not limited to, the fact that Plaintiff does not state how many other individuals Dr. Attarchi has assessed (i.e., perhaps he examined 1,000 patients, but only 30 times of which he has been correct) nor does Plaintiff not state whether those individuals had a similar medical history to Plaintiff. Therefore, as Dr. Attarchi’s declaration is conclusory, it is insufficient to meet the clear and convincing evidentiary standard.[2]

Third, as for prejudice, granting trial preference would give Defendants only 42 days to conduct discovery for a summary judgment/adjudication motion.[3] Forty-two days to serve and receive responses to discovery, set and take depositions, and then prepare the summary judgment motion is not only impractical but impossible.[4] And contrary to Plaintiff’s contention that “Defendants are already in possession of the facts and records” such that it is Plaintiff who requires more time to conjure evidence, that is inaccurate as a matter of law in malpractice actions like this one. In medical malpractice actions, a plaintiff must prove the defendant's negligence was a cause-in-fact of injury. (Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1502.) “The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based [on] competent expert testimony.” (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402–403.) Therefore, both parties need extensive time to conduct discovery on a summary judgment motion. Next, to the extent that Plaintiff avers that “the legislature of the state and the court hold that the inconvenience to the parties may not be considered by the Court in analyzing this motion,” that is an inaccurate representation of the law. (Reply p. 8.) In fact, a critical factor which the court must consider in ruling on a such a motion is any prejudice to the defendant resulting from the accelerated trial date. (Dick v. Superior Court (1986) 185 Cal.App.3d 1159, 1166, see also Opp. p. 7.) Lastly, to the extent that Plaintiff argues it is Defendants who have delayed starting discovery despite “ample time to do so,” this is disingenuous to both the timeline of the case and normal sequencing of events in litigation considering that Defendants were merely served with the summons and complaint on December 8, 2022. (See Reply pp. 4, 8.)

All in all, the decision to grant or deny a preferential trial setting rests in the discretion of the court in light of the totality of the circumstances. (Salas v. Sears, Roebuck & Co. (1986) 42 Cal.3d 342, 344.) And here, the totality of the circumstances—circumstances such as that (i) Opposing Defendants’ were but recently served, (ii) one individual Defendant has yet to be served, (iii) Plaintiff’s expert did not by clear and convincing evidence establish that Plaintiff will not survive beyond the next six months, (iv) that no discovery has yet to be conducted in the action and setting a trial preference would inherently deprive Defendants’ of their statutory right to file a summary judgment motion—the court finds more prejudice to opposing Defendants than to Plaintiff.

Conclusion

Based on the foregoing, the motion for trial preference is DENIED.