2012-00135467-CU-PO

Barbara Lovenstein vs. Eskaton Fountainwood Lodge

Nature of Proceeding: Motion to Compel Produce Witnesses and Documents in Response to

Filed By: Dudensing, Edward P.

The Plaintiffs’ motion to compel defendants to produce witnesses and documents in response to PMQ deposition notices, and to order further depositions of witnesses pursuant to recently obtained discovery, is granted in part and denied in part as set forth below.

This omnibus discovery motion is before the court upon an ex parte order shortening time mere days before trial. This matter was previously set for trial by stipulation of the parties to commence January 29, 2019. Plaintiffs originally applied ex parte for these discovery orders on January 24, 2019, two days before trial. The motion was denied without prejudice to seek the relief from the trial judge due to the lack of time available to the law and motion court to provide the necessary due process to the parties and to consider the totality of the request and opposition.

Subsequently, on January 25, 2019, Plaintiffs sought and received from the Presiding Judge a 15-day continuance of the trial date specifically to address the outstanding discovery disputes raised in the motion, inter alia. Trial is now set for February 11, 2019. Plaintiffs then renewed their ex parte motion in this court on January 30, 2019, requesting an order shortening time for this court to hear the present omnibus discovery motion. The court granted the motion to shorten time, ordered briefing which closed with Defendants’ opposition filed on February 4, 2019, and ordered other collateral relief based upon counsels’ representations at the ex parte hearing.

Plaintiffs now request an order compelling defendants to immediately produce the following documents, or order further deposition testimony, based upon the representations and arguments accompanying each enumerated category:

1. Job descriptions for the “Lead RCA” and the “Special Care Coordinators.” Plaintiffs contend that the Court has ordered production of these documents “forthwith” but as of January 31, 2019, production had not yet occurred. Defendants’ opposition indicates that they have now complied with this request. (Opp., p. 3:3-4.)

2. Budgets for EFL for 2010 and 2011. Plaintiffs contend that the Court has ordered production of these documents “forthwith” but as of January 31, 2019, production had not yet occurred. Defendants’ opposition indicates that they have now complied with this request. (Opp., p. 3:3-4.)

3. California Healthcare Consults Information. Plaintiffs seek “[t]estimony and documents establishing that this entity employed all EFL employees in 2012.” Defendants’ PMQ regarding organizational structure, Mr. Pace (Eskaton CFO) testified that California Healthcare Consultants was the actual employer of all the direct care staff at EFL in 2011, and perhaps 2012. Mr. Pace testified that he could find out, but Defendants have not subsequently provided any additional information on this matter. In meet and confer emails on January 31, 2019, Plaintiffs’ counsel offered to accept a declaration from Mr. Pace averring to the fact that California Healthcare Consultants was the technical employer of all individuals (except the administrator and certain consultants) who worked at EFL. Defendants indicate that they will provide a declaration from Mr. Pace to resolve this issue. (Opp., p. 3:4-5.)

4. Orientation for EFL Employees. Plaintiffs contend that this category “was requested, is not objectionable, and the PMQ says it exists, but it has not been produced.” Plaintiffs contend that their RPD #22 to the PMQ of Ms. Bayless encompassed a document entitled Core Orientation packet given to new employees. Plaintiffs argue that Defendants have refused to produce this documentation though included in the RPD. Defendants do not oppose this request. (Opp., p. 3:5-7.)

5. Corporate Compliance Policy. Plaintiffs contend that this document “was requested, exists, but has not been produced.” Plaintiffs contend that RPD #52 to the PMQ deposition of Ms. Tift required her to produce the Corporate Compliance Policy which were available upon Eskaton’s intranet but that she did not search or produce. Defendants oppose this request upon the ground that it is untimely in light of the discovery motion cutoff, and because Plaintiffs have failed to articulate a basis of good cause for the production.

6. Plan of Operation. Plaintiffs argue that this “document falls within multiple requests by plaintiffs but defendants refuse to produce it.” This plan is required by regulation, and PMQ Donovan testified that such a document may have been within her access, but she did not produce it. Defendants do not oppose this request. (Opp., p. 3:5-7.)

7. Minutes for EFL. Plaintiffs argue that these minutes “were requested, per the PMQ

they exist, but they have not been produced.” Plaintiffs contend that these corporate minutes were requested at least with respect to Mr. Pace’s PMQ, and that the minutes are evidence of critical topics such as staffing, patient care concerns, finances and profits. Defendants oppose this request primarily upon the objections asserted at the related PMQ depositions and burdensomeness and oppression.

8. In-Service and Educational Materials. Plaintiffs contend the PMQ testified that she did not conduct a full search for this material, and the material is not subject to exemption under any objection. Defendants do not oppose this request. (Opp., p. 3:5-7.)

9. The Personnel Records of Michelle Dean, Mary Campbell, Tracy DaOro, and Shannon Guthrie. Plaintiffs represent that the Court ordered the production of these documents but defendants refused to produce them because Eskaton did not possess their personnel files. Plaintiffs represent that defendants never objected that these documents were not within their possession, custody and control. Plaintiffs argue that it is patently frivolous that defendants would not have control over the personnel records of these four individuals simply because they were employed by “some other nominal employer.” Defendants’ opposition indicates that these four individuals were not employed by EFWL, but instead were employees of Eskaton Properties, Inc. Defendants state that Plaintiffs have “stopped pursuing the deposition of Ms. Aho and Ms. Da Oro given no agreement exists to allow their depositions beyond the discovery deadline for law witness depositions of December 31, 2018” and “plaintiffs have explicitly withdrawn their depositions of Ms. Campbell and Ms. Gutherie as the former only worked at the facility in 2007 and the latter provided no care to Ms. Lovenstein and does not work at the facility. (Opp. p. 2:19-27.)

10. Certain Training Records. Plaintiffs seek the training records “from the date of initial hiring to December 31, 2014 of the following: (1) Gada Aho, (2) Jelica Bajramovic, (3) Norma Padilla, and (4) Selby Van Sant. Plaintiffs argue that the court has already ordered production of these records, but the production is incomplete as to these individuals. Plaintiffs do not expect the production to exceed 50 additional pages. Defendants oppose this request on the ground that it exceeds the court’s prior order, and constitutes an improper motion for reconsideration.

11. Last, Plaintiffs request a 1 hour supplemental deposition of Theresa Harrison. Plaintiffs contend that they deposed Ms. Harrison (who resides out of state) for 1-2 hours on January 18, 2019. Plaintiffs then took the deposition of a PMQ regarding personnel files on January 22, 2019. Based upon documentation produced at the later PMQ deposition, Plaintiffs learned for the first time that Ms. Harrison had completed various personnel evaluations and “write-ups.” Plaintiffs are particularly interested in Ms. Harrison’s involvement in an investigation relating to Ms. Gonzalez who was the head nurse and prepared notes pertaining to Ms. Lovenstein. However, since Plaintiffs did not know this information at the time of Ms. Harrison’s initial deposition, this subject matter was not investigated by counsel. Plaintiffs note that Ms. Harrison may not be compelled to testify in California, which makes her deposition testimony essential. Plaintiffs have prepared to take the deposition by videoconference to reduce the burdens of the requested additional discovery. Plaintiffs may so proceed, as addressed, infra.

As noted above, Defendants do not oppose some components of the Plaintiffs’ motion which the Court considers resolved, and orders them granted, unless informed otherwise at the hearing if properly requested.

Defendants do oppose the motion as to items: 5. Corporate Compliance Policy, 7. Minutes for EFL,9. The Personnel Records of Michelle Dean, Mary Campbell, Tracy DaOro, and Shannon Guthrie, 10. Certain Training Records, and 11. a 1 hour supplemental deposition of Theresa Harrison.

Defendants first oppose those remaining motions on the ground that the Plaintiffs’ motion is untimely pursuant to Code of Civil Procedure section 2024.020 which provides in relevant part that except as otherwise provided in Chapter 8 of the Discovery Act dealing with the time for completing discovery “any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.”

Defendants note that the original trial date was set for January 29, 2019, with a discovery motion hearing deadline of January 14, 2019. Defendants argue that the discovery disputes regarding the EFL minutes, and the corporate compliance policy, could have been addressed by the Plaintiffs within the original discovery motion cutoff period. (Opp., p. 3:15-23.)

Defendants argue that the Corporation Compliance Policy should not be compelled because the Plaintiffs have also failed to demonstrate good cause for the production.

Defendants argue that the board member meeting minutes should not be compelled in light of their objections that they asserted as to the corresponding PMQ RPDs # 46,59, 60, and 61. First, they contend the request encompasses nine years of Defendants’ corporate minutes. Defendants essentially argue that these minutes are “remote from the subject matter of the action” and thus overbroad. Defendants argue that requiring them to review nine years of responsive minutes to redact private medical or financial information or other sensitive protected information, is burdensome and oppressive. Defendants also contend that Mr. Pace has testified that the subject minutes do not contain references to staffing issues. Defendants also argue that any minutes relating to finances and profits would violate Civil Code section 3295, and Plaintiffs have not made the required showing under that statutory limitation.

Defendants argue that Plaintiffs’ motion for the training records “from the date of initial hiring to December 31, 2014 of the following: (1) Gada Aho, (2) Jelica Bajramovic, (3) Norma Padilla, and (4) Selby Van Sant” is an improper motion for reconsideration under Code of Civil Procedure section 1008, subject to sanction under subdivision (d) of that statute. Defendants oppose this motion upon the ground that they have

complied with the court’s prior order, and that Plaintiffs’ current motion is in essence a motion for reconsideration of the past order because it expands the scope of the material to be produced. Defendants’ seek monetary sanctions of $1,850 against Plaintiffs upon the ground that this component of the motion is an improper motion for reconsideration pursuant to Code of Civil Procedure section 1008. Parenthetically, this request is ostensibly made under Code of Civil Procedure section 128.7, but is not presented as required under that statute.

Last, the Defendants oppose the additional deposition of Ms. Harrison upon the ground that she has already been deposed, the Plaintiffs did not learn of Ms. Harrison’s involvement in the Gonzalez investigation because they did not conduct a thorough deposition of her, and the Defendants are not to blame for the timing of the subsequent discovery production that ultimately alerted Plaintiffs to the information that they failed to glean from Ms. Harrison at her first deposition.

5. Corporate Compliance Policy. The Court finds that Plaintiffs’ motion as to this documentation is untimely because they did not move to compel production before the discovery motion cutoff January 14, 2019, but could have done so, or sought relief from the cutoff but did not do so.

7. Minutes for EFL. The Court denies the Plaintiffs’ motion for the identified corporate minutes based upon the objections asserted by the Defendants.

9. The Personnel Records The Court denies the motion on the grounds asserted in the Defendants’ opposition as to Michelle Dean, Mary Campbell, Tracy DaOro, and Shannon Guthrie.

10. Certain Training Records. The Court denies this motion upon the ground that Defendants have complied with the Court’s prior order, and the Plaintiffs’ request constitutes an expansion beyond that prior order.

11. Theresa Harrison. The Court grants the one-hour supplemental videoconference deposition of Ms. Harrison limited to her involvement with the employment investigation as to Adriana Almeda (formerly Gonzalez). All costs and expenses of the process shall be paid by Plaintiffs. The parties shall agree to a date and time to complete the deposition. If the parties cannot agree to a date and time, the matter shall be decided by the trial judge.

Defendants’ request for sanctions is denied.

This minute order is immediately effective. A formal order and further notice of this ruling are not required.