2017-00207894-CU-PO

Josephine Boykin (Decedent) vs. Soaring Oaks RCFE

Nature of Proceeding: Motion to Compel Form Interrogatories (Francolin, LLC)

Filed By: Jay, Daniel

Plaintiffs’ motion to compel further responses to form interrogatories 16.1-16.5 from Defendant Francolin, LLC is ruled upon as follows.

This is an Elder Abuse action. The decedent Josephine Boykin (“Josephine”) was a 94 year old dementia resident at defendant Soaring Oaks RCFE’s (“Soaring Oaks”) facility. Plaintiffs allege that Josephine required a two-person assist, and experienced an unwitnessed fall resulting in a serious head/brain injury (traumatic subdural hematoma) which caused her death. Specifically, Josephine was abandoned on the commode and

left unsupervised and unattended for such a long period of time that she fell and hit her face and head on the floor.

Plaintiffs allege that defendant Francolin, LLC (“Francolin”) was doing business as Soaring Oaks, and defendants Colin Kang and Francis Kang (the “Kangs”) owned and operated Francolin. Francolin and the Kangs are collectively referred to herein as “Defendants.”

Plaintiffs served Form Interrogatories on Defendants. At issue is Form Interrogatory

Nos. 16.1-16.5. These interrogatories are contention interrogatories seeking facts, witnesses, and documents supporting the Defendants’ contention (if any) that:

(1) any person, other than Defendants or plaintiff, contributed to the occurrence of the incident or the injuries or damages claimed by plaintiff,

(2) Plaintiff was not injured in the incident,

(3) the injuries or the extent of the injuries claimed by plaintiff as disclosed in discovery proceedings thus far in this case were not caused by the incident,

(4) any of the services furnished by any health care provider claimed by plaintiff in discovery proceedings thus far in this case were not due to the incident, and

(5) any of the costs of services furnished by any health care provider claimed as damages by plaintiff in discovery proceedings thus far in this case were not necessary or unreasonable.

Defendants responded to each interrogatory as follows: “Defendant objects to this interrogatory because Instruction 2(d) instructs the asking party that the interrogatories in section 16.0 should not be used until the defendant has had a reasonable opportunity to conduct an investigation or discovery of plaintiff’s injuries and damages.’ Defendant has not had a reasonable opportunity to conduct discovery, so this interrogatory is premature.”

Plaintiffs contend that the response is without merit because Defendants have known about the lawsuit since March 23, 2017. Moreover, before being served with the complaint with the Complaint, Defendants conducted an investigation into Josephine’s fall and submitted an Unusual Incident / Injury Report to the California Department of Social Services pursuant to California Code of Regulations Title 22 § 87211.) Defendants were also served with Plaintiffs’ responses to written discovery that contained Josephine’s medical records and billing statements. (Declaration of Daniel Jay (“Jay Decl.”) ¶¶ 2-6.)

In opposition, Defendants insist that the response is proper because they have not deposed Plaintiff Duane Boykin or his wife. The depositions were initially scheduled for March 23, 2018, but the depositions have been rescheduled for early April. Defendants also claim that they have not received Josephine’s subpoenaed medical records, thus, they have not reviewed her medical records. They further argue that Plaintiffs did not sufficiently meet and confer prior to filing the motion.

Each answer in the response must be as complete and straightforward as the information reasonably available to the responding party permits. If the responding party cannot answer the interrogatory completely, the party must answer it to the extent possible. (CCP § 2030.220.) The record here demonstrates that Defendants

have before them at least some information (such as the Unusual Incident / Injury Report and Josephine’s medical records and billing statements) by which they can answer the interrogatories. Moreover, although Defendants claim that they have not received Josephine’s subpoenaed medical records, Defendants’ counsel’s declaration fails to aver to such facts. Nor have Defendants disputed Plaintiffs’ counsel’s declaration in which he states that Plaintiffs’ served Defendants with Josephine’s medical records and billing statements on October 10, 2017 – before Defendants served any response to the Form Interrogatories. (Jay Decl. ¶6.) Defendants also proffer no explanation as to why Plaintiff Duane Boykin and his wife’s depositions are necessary in order for Defendants to respond the interrogatories. Neither Mr. Boykin nor his wife were witnesses to the fall. The Court also disagrees with Defendants that Plaintiff did not sufficiently meet and confer prior to filing the motion.

Accordingly, the motion is GRANTED. Defendants must serve an amended response and answer each interrogatory to the extent possible. By no later than April 9, 2018, Defendants shall serve further verified written responses.

Plaintiffs’ request for sanctions against Defendant Francolin, LLC and its attorneys of record Christopher M. Egan and Lynette M. Komar of the law firm of Porter Scott for the reasonable attorneys’ fees and costs incurred in is GRANTED in the amount of $360 ($300/hr x 1 hr plus $60 filing fee). If sanctions are not paid by such date, then Plaintiffs may lodge for the court’s signature a formal order awarding sanctions, which may be enforced as a separate judgment. (See Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615.)