2013-00144410-CU-MC

Essie Chandler vs. Carmichael Care, Inc.

Nature of Proceeding:  Motion to Compel Production of Documents by Carmichael Care, Inc.

Filed By:  Clement, Lesley Ann
Plaintiff’s Motion to Compel Defendant Carmichael Care, Inc. to provide Further
Responses to Request for Production of Documents (set 3) is GRANTED. The cross-
requests for imposition of sanctions are DENIED.

Defendant shall provide full and complete verified responses, without objections to
Request for Production of Documents (Set 3) nos. 57-62.

The Court finds that the defendant’s objection that plaintiff Essie Chandler is not a
proper party to propound discovery is meritless. Although plaintiff is deceased, the
complaint alleges a survivor cause of action under Welf. & Inst. Code § 15657.3, as
Kenneth Chandler is decedent’s successor in interest. C.C.P., sec. 377.11, et seq.

Defendant insists that as all the documents were obtained by defendants from third
parties, the plaintiff must also subpoena the third parties to obtain the requested
documents.  Additionally, defendant requires that the plaintiff pay the $200 cost of
producing documents on a flash drive, rather than the producing party.

In reply, counsel for plaintiff has provided defendant with a blank flash drive.  The cost
of the time of the litigants’ counsel in complying with discovery requests is not
appropriately to be borne by the requesting party.

There is no dispute that Defendant has these documents in its possession, nor that
they are relevant to the case. There is nothing in the Discovery Act mandating that, if
one party obtained documents from third parties, the other party must also request the
documents from those third parties rather than from the party that already has
obtained them. Such a provision would needlessly multiply the burden and expense of
civil litigation.

Compliance and production shall be by Monday, June 30, 2014.

The cross-requests for imposition of monetary sanctions are DENIED.  Although the
underlying subpoenas served by Carmichael Care on the third parties have not been
provided to the Court, the Court notes that C.C.P., sec. 2020.440 provides that on a
business records subpoena, the deposition officer is required to provide a copy of the
requested records to any other party to the action who requests a copy.  As it is not
apparent to the Court why plaintiff failed to request a copy from the deposition officer,
the Court finds both parties’ positions establish that other circumstances make the
imposition of the sanction unjust. Code Civ Proc § 2031.310(h).

This minute order is effective immediately.  No formal order nor further notice is
required, the tentative ruling providing sufficient notice.

Item   9     2013-00144410-CU-MC

Essie Chandler vs. Carmichael Care, Inc.

Nature of Proceeding:      Motion for Protective Order

Filed By:    Koster, Christian Filed By:  Koster, Christian

Defendant Carmichael Care, Inc.’s Motion for Protective Order to Preclude or Limit
Plaintiffs’ Site Inspection is DENIED. C.C.P., sec. 2017.020; 2019.030.

Defendant Carmichael Care, Inc.’s moves for a Protective Order to Preclude or Limit
Plaintiffs’ Site Inspection on the grounds that the plaintiff’s inspection violates
defendant’s patients’ right to privacy.

Plaintiff’s Nov. 25, 2013 request for inspection seeks access for site inspections and
taking of photographs of the premises to include but not limited to, all parts of the
building which decedent Essie Chandler, Plaintiffs Kenneth Chandler and Brenda
Oilman was permitted to access, including but not limited to, the lobby, dining rooms,
hallways, physical therapy rooms, shower rooms, activities rooms, offices, bathrooms
bedroom, garden, nurses’ stations and suites. Plaintiffs intend to photograph the suite
(s) or room(s) and all areas of the building, both inside and out to which decedent and
plaintiffs had access.

Defendant contends that the request is intrusive and violates the residents’ rights to
privacy under HIPAA, and can be accomplished by less intrusive means, such as the
review of architectural plans of the building. The Court disagrees.

Plaintiffs’ opposition asserts that counsel had agreed on the manner of inspection and
photographing the facility, and rescheduled the site inspection for a date convenient for
all, on Feb. 17, 2014.  No objection was served by the defendant to the Second
Amended Notice of site inspection served by plaintiff on Jan. 13, 2014.

Although defendant objects on the grounds of the patients’ right to privacy, in meet and
confer prior to the second notice of site inspection, plaintiff’s counsel has agreed that
no residents will be photographed and counsel for defendant can receive copies
of all photographs and may veto any photos which impinge on residents’
privacy.  The photographer can mask or remove any hint of a patient or
employee who may appear in a photograph, using Photoshop . This appears to be
a tailored and rational approach to the defendant’s legitimate concerns over uninvolved
patient privacy issues. Of course, the trial court is required to balance the right of
privacy with the need for discovery. (Harris v. Superior Court (1992) 3 Cal. App. 4th
661, 665.) Drawing this ultimate balance requires a careful evaluation of the privacy
right asserted, the magnitude of the imposition on that right, and the interests militating
for and against any intrusion on privacy. See, e.g. Pioneer Electronics (USA), Inc. v.
Superior Court (2007) 40 Cal.4th 360. Here, given the conditions to which plaintiff’s
counsel has agreed, the privacy interest involved in this inspection is minimal.

The Court further finds that defendant waived its right to object by failing to file a
written objection, and has failed to show good cause for a protective order, which
request is denied.

The Court finds that this site inspection is relevant and appropriate and may proceed
on the conditions that:  (1) Plaintiffs’ counsel and photographer will be allowed to
inspect and photograph Ms. Chandler’s room, the shared bathroom, dining room and
activity area Ms. Chandler frequented, the nurses’ stations and hallways, and the
conference room where she attended care conferences while she was a resident at
Rosewood; (2) Plaintiffs will not photograph any resident at the facility; and (3)
Defense counsel may review copies of all photographs taken and, if he has a good
faith belief that any photograph violates a resident’s right to privacy, the parties shall
meet and confer concerning appropriate measures to prevent disclosure of such
photograph.  The site inspection shall take place on a mutually agreeable date and
time not later than Friday, July 18, 2014.

Sanctions are imposed on moving party Carmichael Care, Inc. in the amount of
$2,200.00 representing four hours of attorneys’ fees at $550/hour.  Sanctions shall be
paid to counsel for plaintiff not later than Friday, July 18, 2014.

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or further notice is required.

Item  10    2013-00144410-CU-MC

Essie Chandler vs. Carmichael Care, Inc.

Nature of Proceeding:  Motion to Compel Court Ordered Discovery by North American Health

Filed By:  Clement, Lesley Ann

Plaintiff’s Motion to Compel Defendant North American to provide Further Responses
to Court Ordered Discovery is GRANTED. The request for imposition of sanctions is
GRANTED, in part as set forth below.

This Court previously granted plaintiff’s motion to compel Defendant North American to
provide Further Responses to Form Interrogatories (Set one), Special Interrogatories
(set One) and Further Responses to Requests for Production (set One.)

Defendant shall provide a full and complete verified answer, without objections to
Plaintiff’s Form Interrogatories nos. 12.4 to which no response was provided, despite
prior Court order.

Defendant shall provide a full and complete verified answer, without objections to
Plaintiff’s Special Interrogatories nos. 20 and 21.  Defendant has waived its right to
identify documents under C.C.P., sec. 2030.230, and must provide the information as
previously ordered.

Defendant shall provide full and complete verified responses, without objections to
Request for Production of Documents nos. 8, 9 and 10.  The Court does not find that
North American may assert the peer review privilege.  The responses must specify
that ALL responsive documents in defendant’s possession, custody or control have
been produced and produce the responsive documents.

Compliance and production shall be by Monday, June 30, 2014.

Defendant may not dictate to plaintiff the order or manner in which discovery must be
served.  Depositions are appropriately taken after the documents have been produced,
not before.

Plaintiff’s request for imposition of monetary sanctions is GRANTED, in the amount of
$1,710, representing three hours of attorney time at $550/hour together with the $60
filing fee. Sanctions shall be paid by the defendant to counsel for the plaintiff not later
than Friday, July 18, 2014.

The Court denies the request for evidentiary or issue sanctions at this time, but has
made note of the fact that the defendant has flouted a prior Court order to compel
these discovery responses, and will consider any further motions for imposition of
sanctions seriously.

This minute order is effective immediately.  No formal order nor further notice is
required, the tentative ruling providing sufficient notice.

Item  11    2013-00144410-CU-MC

Essie Chandler vs. Carmichael Care, Inc.

Nature of Proceeding:   Motion to Compel Court Ordered Discovery by John Sorensen

Filed By:  Clement, Lesley Ann

Plaintiff’s Motion to Compel Defendant John Sorensen to provide Further Responses
to Court Ordered Discovery is GRANTED. The request for imposition of sanctions is
GRANTED, in part as set forth below.

This Court previously granted plaintiff’s motion to compel Defendant John Sorensen to
provide Further Responses to Special Interrogatories (set One) and Further
Responses to Requests for Production (set One.)

Defendant shall provide full and complete verified answers, without objections to
Plaintiff’s Special Interrogatories nos. 1, 3, 5 and 6.

Defendant shall provide full and complete verified responses, without objections to
Request for Production of Documents nos. 5.  The responses must specify that ALL
responsive documents in defendant’s possession, custody or control have been
produced and produce the responsive documents.  As the defendant asserts that
some of the documents are CONFIDENTIAL, they shall be so stamped, on each page,
Bates stamped, and a log of the CONFIDENTIAL documents provided at the time the
documents are produced.  All CONFIDENTIAL documents, and any photocopies,
abstracts or notes based thereon, shall be used for the purposes of this litigation only,
and returned to the producing party at the conclusion of the litigation.

Compliance and production shall be by Monday, June 30, 2014.

Defendant may not here dictate to plaintiff the order or manner in which discovery
must be served.  Depositions are appropriately taken after the documents have been
produced, not before.

Plaintiff’s request for imposition of monetary sanctions is GRANTED, in the amount of
$1,710, representing three hours of attorney time at $550/hour together with the $60
filing fee. Sanctions shall be paid by the defendant to counsel for the plaintiff not later
than Friday, July 18, 2014.
The Court denies the request for evidentiary or issue sanctions at this time, but has
made note of the fact that the defendant has flouted a prior Court order to compel
these discovery responses, and will consider any further motions for imposition of
sanctions seriously.

This minute order is effective immediately.  No formal order nor further notice is
required, the tentative ruling providing sufficient notice.

Item  12    2013-00144410-CU-MC

Essie Chandler vs. Carmichael Care, Inc.

Nature of Proceeding:   Motion to Compel Court Ordered Discovery by Carmichael Care, Inc.

Filed By:  Clement, Lesley Ann

Plaintiff’s Motion to Compel Defendant Carmichael Care, Inc. to provide Further
Responses to Court Ordered Discovery is GRANTED. The request for imposition of
sanctions is GRANTED, in part as set forth below.

This Court previously granted plaintiff’s motion to compel Defendant Carmichael Care,
Inc. to provide Further Responses to Form Interrogatories and Further Responses to
Requests for Production

Defendant shall provide full and complete verified answers, without objections or cross
-references to Plaintiff’s Form Interrogatories nos. 12.1, 15.1 and 17.1.  The responses
provided by Carmichael Care are inadequate.  Defendant may not cross-refer to other
discovery responses, nor may defendant raise new objections after having been
ordered to answer.

Defendant shall provide full and complete verified answers, without objections or cross
-references to Request for Production of Documents nos. 15, 19, 20, 21, 24, 29, 30, 37
and 42.  The responses must specify that ALL responsive documents in defendant’s
possession, custody or control have been produced and produce the responsive
documents.

Compliance and production of documents shall be by Monday, June 30, 2014.

Defendant may not dictate to plaintiff [nor plaintiff to defendant] the order or manner in
which discovery must be served.  Further, depositions are appropriately taken after the
documents have been produced, not before. Prudent and experienced counsel do not
wish to take depositions in a vacuum of information, and generally may wish to have
written discovery completed before initiating depositions of opposing parties or
witnesses.

Plaintiff’s request for imposition of monetary sanctions is GRANTED, in the amount of
$1,710, representing three hours of attorney time at $550/hour together with the $60
filing fee. Sanctions shall be paid by the defendant to counsel for the plaintiff not later
than Friday, July 18, 2014.

The Court denies the request for evidentiary or issue sanctions at this time, but has
made note of the fact that the defendant has flouted a prior Court order to compel
these discovery responses, and will consider any further motions for imposition of
sanctions seriously.

This minute order is effective immediately.  No formal order nor further notice is
required, the tentative ruling providing sufficient notice.