Case Number: 19STCV10844 Hearing Date: August 28, 2019 Dept: 34

SUBJECT: Motion for Protective Order

Moving Party: Defendants Raymundo Romero, M.D., William A. Martinez, and Samaritana Medical Clinic, Inc.

Resp. Party: Plaintiffs Hazel E. Rivera, by and through her successor-in-interest, Alvaro Coronel, Alvaro Coronel, and Oscar Rivera

BACKGROUND:

Plaintiffs Hazel E. Rivera, by and through her successor-in-interest, Alvaro Coronel; Alvaro Coronel; and Oscar Rivera commenced this action on March 29, 2019 against Defendants 1100 S. Alvarado St. LLC dba Olympia Convalescent Hospital; Golden State Health Centers, Inc.; Raymundo Romero, M.D.; William A. Martinez; Samaritana Medical Clinic, Inc.; Lock Han K; Tea K.; Vanna Chris Sok; and Tocankiep Dara for: (1) elder abuse/neglect; (2) elder abuse/financial; (3) negligence; (4) negligent hiring, supervision, and retention; (5) willful misconduct; (6) violation of residents’ rights; and (7) wrongful death. Plaintiff Hazel E. Rivera (“the decedent”) was admitted to the Defendant facility, Olympia Convalescent Hospital (“Olympia”), on October 27, 2017. Plaintiffs allege that Olympia’s acts resulted in several injuries sustained by the decedent and eventually caused or contributed to her death on May 3, 2018.

On July 17, 2019, the Court overruled Defendants Golden State Health Centers and 1100 S. Alvarado St., LLC dba Olympia Convalescent Hospital’s demurrers and denied Defendants Golden State Health Centers and 1100 S. Alvarado St., LLC dba Olympia Convalescent Hospital’s motions to strike.

On August 22, 2019, Defendants Raymundo Romero, M.D., William A. Martinez, and Samaritana Medical Clinic, Inc.’s motion to stay discovery was denied.

On July 19, 2019, Defendant 1100 S. Alvarado St. LLC dba Olympia Convalescent Hospital filed the instant motion for protective order regarding Plaintiff’s Set One Special Interrogatories, Nos. 25 and 26.

ANALYSIS:

Defendant 1100 S. Alvarado St. LLC dba Olympia Convalescent Hospital (“Defendant”) moves the Court for a Protective Order exempting Defendant from answering Plaintiff Hazel E. Rivera’s Set One Special Interrogatories, Nos. 25 and 26, pursuant to Code of Civil Procedure sections 2017.020 et seq., 2019.030, 2023.010 et seq., and 2030.090 et seq. (Motion, p. 2:3-8.)

A. Legal Standard

Code of Civil Procedure section 2030.090 states in pertinent part:

“(a) When interrogatories have been propounded, the responding party, and any other party or affected natural person or organization may promptly move for a protective order. This 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 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:

(1) That the set of interrogatories, or particular interrogatories in the set, need not be answered.

* * * *

(4) That the response be made only on specified terms and conditions.”

Code of Civil Procedure section 2017.020 states in pertinent part:

“(a) The court shall limit the scope of discovery if it determines that the burden, expense, intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.”

B. Request for Judicial Notice

The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and (h).)

Defendant “requests that the Court take judicial notice and consider the content of the following materials in consideration of Defendant’s Notice of Motion and Motion for Protective Order Regarding Plaintiff’s Set One Special Interrogatories, Nos. 25-26:

· “EXHIBIT C”: Ruling sustaining a Protective Order as to similar special interrogatories argued in this Motion in the case of Rochelle Machen v. Greenfield Care Center of Gardena, Case no. BC675009.

· “EXHIBIT D”: Ruling sustaining a Protective Order as to similar special interrogatories on the exact same grounds argued in this Motion in the case of Underwood v. Spring Valley Post Acute, LLC, Case No. 30-2016-00837584-CU-PO-CJC.

· “EXHIBIT E”: Notice of Ruling dated May 12, 2016, in Earnest L. Kyles, et al. v. Spring Valley Post Acute, LLC, et al., Case No.: 30-2015-00827506-CU-MC-CJC, whereby a court sustained this same Motion for a Protective Order as to similar special interrogatories on the same grounds argued in this motion.

· “EXHIBIT F”: Notice of Ruling dated April 11, 2016, in Middione, et al., v. Sela Healthcare, Inc., et al. Case No. CIVDS 1502860, whereby the San Bernardino Superior Court sustained this same Motion for a Protective Order as to similar special interrogatories on similar grounds argued in this motion.

· “EXHIBIT G”: Notice of Ruling dated February 5, 2016, where, in the case of Martinez v. Villa Rancho Bernardo Health Care, LLC, et al., Case No. 37-2015- 00016097-CU-PO-CTL, the San Diego Superior Court denied a Motion to Compel as to the same types of special interrogatories served in the instant case on the exact same grounds argued in this motion.

· “EXHIBIT H”: Notice of Ruling where, in the case of Mair v. Sela Healthcare, Inc. dba Holiday Manor Care Center, et al, Case No. BC539627, the Los Angeles Superior Court granted Defendant’s Motion for Protective Order as to similar special interrogatories served in this instant case.

· “EXHIBIT I”: Notice of Ruling where, in the case of Wadsworth v. Vintage Senior Housing, filed in Orange County Superior Court (Case No. 30-2009- 00125854), the Court denied plaintiff’s Motion to Compel Further Responses to Special Interrogatories on the ground that the subject interrogatories sought to invade the privacy rights of third parties.

· “EXHIBIT J”: Notice of Ruling where, in the case of Custer v. Silverado filed in Los Angeles County Superior Court (Case No. SC110109), the Court granted defendants’ Motion for Protective Order regarding plaintiffs’ special interrogatories, finding that while it was possible some of the information could provide relevant evidence, the speculative nature of the request was “substantially outweighed by the invasion of the rights of the patients and their responsible parties.”

· “EXHIBIT K”: Minute Order where, in the case of Brown v. Life Care Centers, filed in Orange County Superior Court (Case No. 30-2012-00565546), the Court granted defendants a Protective Order, holding that defendants were not required to respond/answer plaintiff Brown’s special interrogatories Nos. 37 and 38.

· “EXHIBIT L”: Notice of Ruling where, in the case of Toney v. Kaiser Foundation Hospitals, Inc., et al., filed in Los Angeles County Superior Court (Case No. BC482252), the Court granted defendants’ Motion for Protective Order regarding plaintiffs’ set two special interrogatories, which sought similar information at issue in this motion, other residents’ and responsible parties’ contact information.

· “EXHIBIT M”: Notice of Ruling in the case of Betty Vrooman v. Senior Services of America, LLC, et al., filed in Orange County Superior Court (Case No. 30- 2013-00691406-CU-PO-CJC), where the Court granted Defendant’s Motion, finding that there was no “compelling need” for the information sought by way of two special interrogatories identical to the ones in the present matter.” (Request for Judicial Notice, pp. 2:2-3:16.)

Defendant argues that “‘EXHIBITS C-M’ are Rulings by Courts regarding the exact same discovery at issue in Defendants’ present Motion for Protective Order” and “are all helpful in determining whether Plaintiffs’ instant Set One Special Interrogatories Nos. 25-26 are appropriate.” (Id. at p. 3:21-4:1.)

In opposition, Plaintiff argues that “the materials proffered by Defendant have no precedential value, as the decisions are all from trial courts, and there is no indication that the interrogatories which are the subject of Defendant’s motion are similar factually to the interrogatories that were the subject of the various rulings referenced by the Defendant.” (Opp. to Request for Judicial Notice, p. 2:7-11.)

Although these rulings are records of a court of this state (Evi. Code §452(d)), Defendant fails to demonstrate how these rulings are factually relevant to the instant action. There is no indication that the interrogatories in the rulings offered by Defendant ask for the same information as the special interrogatories in this case. The request for judicial notice is also improper to the extent Defendant offers the rulings as legal authority in support of its position. Even if these cases involve the same issues as this action, a trial court ruling has no precedential value. (Bolanos v. Superior Court (2008) 169 Cal.App.4th 744, 761; Crab Addison, Inc. v. Superior Court (2008) 169 Cal.App.4th 958, 964, fn. 3.) The Court DENIES Defendant’s request for judicial notice.

C. Discussion

The two special interrogatories at issue in this motion for protective order are Special Interrogatory Nos. 25 and 26. (See Motion, p. 2:5-6.)

Special interrogatory No. 25 states:

“Please IDENTIFY PLAINTIFF’s roommate(s) during her ADMISSION at YOUR FACILITY.” (Id. at p. 7:15-17.)

Special Interrogatory No. 26 states:

“Please IDENTIFY the RESPONSIBLE PARTY for each individual identified in Special Interrogatory No. 25. (The term “RESPONSIBLE PARTY” shall mean “responsible party” as that term is defined in Welfare and Institutions Code §14110.8 and shall also include the term “patient representative” as that term is defined in both Title 22 C.C.R. §72527 and Health and Safety Code §123105(e).)” (Id. at p. 7:18-23.)

Defendant argues that “these interrogatories seek to acquire the contact information of every resident roommate, along with their responsible party, who resided at Defendant’s skilled nursing facility during these months.” (Id. at p. 7:24-26 [referencing Bayles Decl., ¶ 2, Exh. A].) Defendant asserts that “Plaintiff argues that the information sought is reasonably calculated to lead to the discovery of admissible evidence regarding the care Defendant was providing, the general conditions of the facility, and problems within the nursing unit at the facility.” (Id. at pp. 7:26-8:1.) However, Defendant argues that “Plaintiff cannot meet the burden of showing that there is a ‘compelling need’ for the information sought, especially in light of the numerous alternative means for discovery, including, publicly available regulatory documents, reviewing non-confidential documents produced in discovery, the depositions of the facility’s employees, or deposing the staff members with percipient knowledge of the claims making up the basis of the operative complaint.” (Id. at p. 6:4-9.) Defendant requests that the Court issue a Protective Order exempting Defendant from answering Set One Special Interrogatories Nos. 25-26 because “this case is not a class action and does not involve novel or complicated issues requiring the need for such expansive and invasive discovery.” (Id. at p. 8:3-8.)

Defendant argues that the Court should grant this motion for the following reasons:

“(1) Other residents and their responsible parties are not expert witnesses and therefore cannot provide any relevant opinion as to whether Defendant provided adequate care or supervision to Plaintiff, or had sufficient staff, or adequate funding;

(2) Pursuant to HIPAA and California law, the identity and contact information of responsible parties constitutes protected health information and therefore cannot be disclosed;

(3) A proper balancing of the privacy interests at stake confirms that Plaintiff has failed to show a “compelling need;”

(4) There are less intrusive means for obtaining the discovery sought by Plaintiff.

(5) The proposed compromise is unjustified and allowing the discovery will inevitably result in abuse.” (Id. at p. 9:19-27.)

Specifically, Defendant argues that “Plaintiff seeks private information that is not relevant to the claims making up the basis of this lawsuit.” (Id. at p. 17:7-8.) Defendant asserts that “Plaintiff wants to contact all of Defendant’s resident roommates and their responsible parties, yet there is no evidence to suggest that another resident was a witness to the alleged claims making up the basis of this lawsuit.” (Id. at p. 17:8-10.) Defendant argues that because Plaintiff’s complaint only involves the care of Plaintiff, the contact information for each responsible party for each resident will not assist Plaintiff in proving the elements of his case. (Id. at p. 17:10-13.)

In opposition, Plaintiff argues that “Defendant’s objection that Plaintiff’s Special Interrogatories violates privacy rights is clearly without merit” because “Plaintiff’s interrogatory does not seek financial, medical, insurance, or other types of information which might be considered subject to a right of privacy.” (Opp., p. 1:15-18 [referencing Code of Civ. Proc., §1985.3].) Plaintiff asserts that “the only item of personal information revealed by a response to the subject interrogatory is the roommate’s full name and contact information.” (Id. at p. 1:18-19.)

Plaintiff argues that “Plaintiff’s roommate is a percipient witness as to the neglect of Plaintiff while she resided at Defendant’s facility, to include, leaving Plaintiff in soiled diapers for extended periods of time, the failure to provide Plaintiff with fall precautions, including a bed alarm, landing pads, and set her bed to the lowest position at all times.” (Id. at pp. 4:26-5:2.) Plaintiff argues that “Plaintiff’s roommate may have information directly relevant to these different forms of neglect by her custodial caregivers” and “the identifies of the responsible parties for Plaintiff’s roommate is necessary because these individuals are also percipient witnesses to the events giving rise to this action, especially where Plaintiff’s roommate(s) cannot offer testimony due to either death or incompetency.” Plaintiff asserts that she “has shown a sufficient countervailing interest to justify disclosure of contact information for Plaintiff’s roommates and their responsible parties because Plaintiff is not seeking the medical history, the mental or physical condition, or treatment of any individual.” (Id. at p. 5:6-8.)

When discovery pertains to third-party privacy rights, courts engage in a balancing test, evaluating the privacy right asserted, the magnitude of the imposition on that right, and the interests militating for and against any intrusion on privacy. (Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal. 4th 360, 370; Life Technologies Corp. v. Superior Court (2011) 197 Cal. App. 4th 640, 651-652.) “The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious.” (Williams v. Superior Court (2017) 3 Cal. 5th 531, 552 [citing Hill v. National Collegiate Athletic Assn. (1994) 7 Cal. 1, 35-37].) “The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy.” (Id.)

Contact information for percipient witnesses is generally discoverable, notwithstanding the generalized “privacy” interest in one’s name, address, or phone number. (Alch v. Superior Court (2008) 165 Cal. App. 4th 1412, 1416 [narrowly-talilored disclosure over third-party opt-out objections]; Belaire-West Landscape, Inc. v. Superior Court (2007) 149 Cal. App. 4th 554, 561 [opt-out procedure for former employees]; Crab Addison, Inc. v. Superior Court (2008) 169 Cal. App. 4th 958, 969 [potential class members]; Lee v. Dynamex, Inc. (2008) 166 Cal. App. 4th 1325, 1338 [potential class members]; Puerto Rico v. Superior Court (2008) 158 Cal. App. 4th 1242, 1249-1250 [witnesses in wage/hour discrimination action].)

“Central to the discovery process is the identification of potential witnesses. ‘The disclosure of the names and addresses of potential witnesses is a routine and essential part of pretrial discovery.’ [citation omitted.] Indeed, our discovery system is founded on the understanding that parties use discovery to obtain names and contact information for possible witnesses as the starting point for further investigations . . . .” (Puerto Rico v. Superior Court (2008) 158 Cal. App. 4th 1242, 1249-50.)

However, courts may restrict discovery altogether, or require notice to the individuals before their contact information is disclosed. The more sensitive the nature of the personal information that is sought to be discovered, the more substantial the showing of the need for discovery that will be required before disclosure will be permitted. (Tien v. Superior Court (2006) 139 Cal. App. 4th 528, 539-540.) When disclosing the identity of witness implicates important privacy issues, affirmative consent is required in order to waive the privilege with disclosure. (Los Angeles Gay & Lesbian Center v. Superior Court (2011) 194 Cal.App.4th 288, 310; see Starbucks Corp. v. Superior Court (2011) 194 Cal.App.4th 820, 828 [Plaintiffs not entitled to discover identity of job applicants with prior drug use]; County of Los Angeles v. Superior Court (2006) 139 Cal.App.4th 8, 18 [heirs of prisoner who committed suicide in jail not entitled to discover patient information in report relating to mental health services to incarcerated]; Pollock v. Superior Court (2001) 93 Cal.App.4th 817, 821 [plaintiff in insurance bad faith not entitled to discovery identity of other insureds denied psychiatric disability benefits]; Denari v. Superior Court (1989) 215 Cal.App.3d 1488, 1501 [plaintiff injured during booking process at county jail not entitled to discover identity of others in jail around the same time]; Rosso, Johnson, Rosso & Ebersold v. Superior Court (1987) 191 Cal.App.3d 1514, 1518 [defendant in IUD litigation not entitled to discover identity of potential plaintiffs]; Smith v. Superior Court (1981) 118 Cal.App.3d 136, 141 [wife not entitled to discover identity of husband’s psychiatric patients since fact of treatment divulges existence of some condition].)

In this case, both Plaintiff and Defendants are wrong. Defendants are incorrect when they argue that the information sought is not potentially relevant. Plaintiff is wrong when she argues that the information sought does not violate the third-parties privacy rights.

The Court finds that the identity of Defendant’s nonparty residents and their responsible parties is protected by their constitutional rights to privacy. (See Life Technologies Corp. v. Superior Court (2011) 197 Cal.App.4th 640, 653-654 [protecting the identities and contact information for nonparty employees and former employees of defendant corporation].) Further, it is likely that Plaintiff’s roommate(s) and the responsible parties reasonably expect that their contact information would not be disclosed to others by Defendant. However, Plaintiff has demonstrated that the nonparty contact information that she seeks is directly relevant to her claims. (See Alch v. Superior Court (2008) 165 Cal. App. 4th 1412, 1416.) Plaintiff demonstrates that her roommate(s) and the responsible parties are percipient witnesses, who either resided in the same room as Plaintiff while Plaintiff was at Defendant’s facility, or can speak on behalf of those who resided with Plaintiff, and these individuals may provide Plaintiff with vital information regarding her causes of action that are asserted against Defendant.

Despite the relevance to Plaintiff’s case, disclosure of the roommate(s) and their responsible parties necessarily would disclose that these people were in residence at Defendant’s skilled nursing facility. The disclosure of the roommate(s) and their responsible parties’ contact information simultaneously discloses that these individuals have a medical condition, based on their presence at the skilled nursing facility. “[D]isclosure of such sensitive information necessarily requires an affirmative consent to waive the privilege.” (Los Angeles Gay & Lesbian Center v. Superior Court (2011) 195 Cal. App. 4th 288, 310.)

In order to balance these competing interests, something akin to a BelAire-West notice is needed. (See Belaire-West Landscape v. Superior Court (2007) 149 Cal. App. 4th 554.) The parties are ordered to meet-and-confer to draft a letter than can be sent to the roommates and/or their responsible parties. This letter should notify the roommate(s) and their responsible parties of Plaintiff’s lawsuit, and ask them if they would give permission for Plaintiff to receive their contact information. The letter can also inform the roommates and/or their responsible parties that they can directly contact Plaintiff’s counsel should they choose to do so. The parties should meet-and-confer to determine how such a notice would be sent, who would receive the replies, and how the confidentiality of the roommates and/or their responsible parties will be maintained.

The Court will meet with counsel to discuss these issues.