2012-00131563-CU-PP
Judith Walls vs. Emeritus Corporation
Nature of Proceeding:
Filed By:
Motion to Compel 1. Special 2. Production of Docs, set one 3.
Shergill, Justin S.

Plaintiff Judith Walls, through her Guardian Ad Litem Margot Walls (“Plaintiff”), filed a
Motion to Compel Further Responses to Requests for Production of Documents (Set
One and Set Two) and to Compel Further Responses to Special Interrogatories from
Defendant Emeritus Corporation. Defendants Emeritus Corporation d/b/a Emeritus at
Laguna Creek, Emeritus Senior Living Corp., and Emeritus Management LLC
(collectively, “Defendants”) opposed the motions.

Plaintiff’s Motions are GRANTED IN PART and DENIED IN PART.

Plaintiff allegedly resided at Defendants’ residential care facility from October 2009
until February 2012. (First Am. Compl. ¶¶ 13-24.) Plaintiff alleges that she suffers
from “severe dementia and Alzheimer’s disease.” (Id. ¶ 2.) Plaintiff alleges that
Defendants were negligent, committed elder abuse/neglect, and engaged in unfair
business practices in connection with Plaintiff’s having allegedly been raped and
assaulted by another resident of Defendants’ residential care facility.

Requests for Production (“RFPs”)

Plaintiff’s motion to compel further responses to RFP Nos. 9, 10, 109, and 110 is
DENIED. Plaintiff was a patient of the facility for two years and four months. Yet these
RFPs seek “any and all documents that evidence or refer to” shareholder meetings
and board of director meetings “for the past ten years,” and both “any and all corporate
minutes” and “governing body minutes” “from 2008 to the present.”

Code of Civil Procedure § 2031.310(b)(1) requires a party moving to compel further
responses to RFPs to “set forth specific facts showing good cause” justifying the
discovery sought by the demand.” Plaintiff argues that the requested documents
“directly relate to the issue of whether Defendant prioritized its financial welfare over
the welfare of its residents.” (Pl.’s Ps & As at 8.)

Plaintiff argues that Defendants cannot assert a “privacy” objection because, a
corporation “may not avail itself of a right to privacy.” (Pl.’s Ps & As at 10 (citing
Roberts v. Gulf Oil Corp. (1983) 147 Cal.App.3d 770, 791-92.) Generally, corporations
can claim no equality with individuals in the enjoyment of a right to privacy. United
States v. Morton Salt Co. (1950) 338 U.S. 632, 652. This is not to say that they have no right to privacy at all. Two critical factors are the strength of the nexus between the
artificial entity and human beings and the context in which the controversy arises. It is
clear the court in Roberts did not hold that a corporation can never avail itself of a right
to privacy. Instead, the court in Roberts explained that, “[a]lthough corporations have
a lesser right to privacy than human beings and are not entitled to claim a right to
privacy in terms of a fundamental right, some right to privacy exists. Privacy rights
accorded artificial entities are not stagnant, but depend on the circumstances.” (
Roberts, supra, 147 Cal.App.3d at 796 (emphasis added); see, also Ameri-Medical
Corp v. Workers’ Comp Appeals Bd. (1996) 42 Cal. App. 4th 1260, 1287-1288; see,
also G. M. Leasing Corp. v. United States (1977) 429 U.S. 338, 353-354 [50 L.Ed.2d
530, 543-544, 97 S.Ct. 619]; Silverthorne Lumber Co. v. United States (1920) 251 U.S.
385, 392 [64 L.Ed. 319, 321, 40 S.Ct. 182], California Bankers Assn. v. Shultz, 416
U.S. 21, 65-67 (1974); United States v. Morton Salt Co., 338 U.S. 632, 651-652
(1950)).

Where privacy rights are implicated, courts must balance “the requested discovery and
its relevance to the subject matter involved in the pending action, and whether it
‘appears reasonably calculated to lead to the discovery of admissible evidence,’ as
opposed to any countervailing considerations, such as privacy . . . .” (Hecht, Solberg,
Robinson, Goldberg & Bagley LLP v. Superior Court (2006) 137 Cal.App.4th 579,
595.) Here, both parties cite to the Britt case, which requires the court to balance the
need for the requested information against privacy concerns, and requires the
requested information to be “directly relevant” to a cause of action or defense and
“essential” to the fair resolution of the lawsuit. (Britt v. Superior Court (1978) 20 Cal.3d
844, 859-862.)

The Court is persuaded that Plaintiffs’ RFPs seek categories of corporate documents
unavailable to the public that are entitled to at least some degree of privacy protection.
Yet Plaintiff has not shown that the requested information is “directly relevant” and
“essential” to proving whether Defendants’ facility was adequately staffed, or whether
Defendants “ratified” employee misconduct at the facility. The RFPs do not seek
“directly relevant” information primarily because they are overbroad. As Defendants
argue, “Plaintiff seeks all documents related to Laguna Creek’s shareholders and
director’s meetings for a period of ten years, regardless of the subject matter, even
though Plaintiff was a resident” of Defendants’ facility for a much shorter period of time.
(Def.’s Oppo. at 6.) The Court is not persuaded that Plaintiff’s broad requests for “ten
years” of corporate records and meeting minutes “from 2008 to the present” are
“directly relevant” to whether Defendants’ facility was understaffed during the time of
the alleged rape, and/or whether Defendants ratified employee misconduct in
connection therewith, and/or whether Defendants prioritized its financial welfare over
the welfare of its residents. (See Britt, supra, 20 Cal.3d at 859-862.)

Plaintiff has failed satisfy the requirement of Code of Civil Procedure § 2031.310(b)(1)
that the moving party “set forth specific facts showing good cause” justifying the
discovery at issue here.

Accordingly, for all the foregoing reasons, Plaintiff’s motion to compel further
responses to RFP Nos. 9, 10, 109, and 110, is DENIED.

The Court makes its ruling based on the privacy at issue and the overbreadth of these
RFPs against the need for the requested discovery. The Court is not persuaded that
this requested discovery implicates any privilege or Defendants’ “financial condition” under Civil Code § 3295. Given the foregoing, the Court need not and does not
determine whether the requested documents would be protected by the attorney-client
privilege or work product doctrine.

Plaintiff’s motion to compel further responses to RFP Nos. 51, 55, and 57-59 is
GRANTED. Through these RFPs, Plaintiff seeks “disclosure of records that Defendant
filed with the Department of Social Services (“DSS”),” including various “LIC forms”
regarding the facility’s license, monthly operating statements, and basic personnel
reports. (Pl.’s Ps & As at 10-11.) Plaintiff explains that these RFPs were intended to
obtain “a greater understanding about Defendant Emeritus Corp. and the manner in
which it operates its facilities.” (Id.)

Regarding RFP Nos. 51, 55, and 57-59, Defendants primarily object on grounds that
the requested documents are “equally available” to Plaintiff through a Public Records
Act request, such that Defendants are “not obligated” to produce them. (Def.’s Oppo.
at 12.) Defendants also argue that they have “no duty to produce documents provided
to the DSS, since Plaintiff can obtain those documents directly from DSS.” (Id.)
Any party may obtain discovery of information in “the possession, custody, or control of
any other party.” (Code Civ. Proc. § 2031.010(a).) However, where “information
recorded in public documents . . . is as readily available to the defendants as it is to the
plaintiffs, and no perceivable purpose consonant with the discovery laws is served by
compelling one party to search public records, compile the results and furnish them to
his opponent.” (Alpine Mut. Water Co. v. Superior Court of Ventura County (1968) 259
Cal.App.2d 45, 54.)

Here, Defendants have not argued the threshold issue, namely, that the documents
responsive to these RFPs are not in Defendants’ possession, custody, or control.
Similarly, Defendants have not argued that it would be particularly burdensome for
Defendants to produce the responsive documents in their possession. Accordingly,
absent either of these showings, the Court is not persuaded by the objection that
Defendants have no “duty” to produce the documents solely because the documents
are “equally available” to Plaintiff.

With respect to RFP No. 57, Defendants represent that the request likely includes a
typo (using form title “LTC” instead of “LIC”), and that Defendants’ agreement to
produce responsive “LIC 622” forms satisfies RFP No. 57 as corrected. (Def.’s Oppo.
at 2 n.1.) In Reply, however, Plaintiff argues that Defendants have not actually
produced any “LIC forms” to date. (Reply at 9.) To the extent that the meet and
confer process has not yet clarified whether responsive LIC forms actually exist and
are being withheld, whether responsive LIC forms exist and will be produced, or
whether responsive LIC forms do not exist, the Court invites the parties to continue to
meet and confer.

There is some suggestion that Defendants previously objected on grounds that the
documents responsive to these RFPs are privileged or protected by the work product
doctrine. However, in their Opposition, Defendants failed to meaningfully apply these
objections to these particular RFPs. (Def.’s Oppo. at 12.) Accordingly, Defendants
have not shown that any privilege or work product protection applies to the documents
responsive to these RFPs. If Defendants are actually withholding responsive
documents on the basis of privilege, Defendants shall produce a privilege log
within fourteen days of this order, unless the parties stipulate to a different deadline.
Defendants also argue that the requested documents are private financial or
operational documents or otherwise not readily “available to the public.” (Def.’s Oppo.
at 6-7.) The argument is not persuasive given that the documents are publicly
available through the DSS. (Pl.’s Ps & As at 10-11.) Defendants also do not
compellingly argue that the responsive documents are truly “confidential, proprietary,
and business sensitive.” (Def.’s Oppo. at 7, 12.) The Court will gladly entertain a
stipulation or request for a protective order limiting the disclosure of such documents.
Plaintiff’s motion to compel further responses to RFP No. 91 is GRANTED. This
RFP seeks “any and all” “Care Alerts” that refer to the incident in which one of
Defendants’ employees allegedly spotted a male resident sexually assaulting Plaintiff
at the residential care facility. In their Opposition briefing Defendants represent in a
footnote that its “practice and procedure is to discard ‘Care Alerts’ after two weeks, so
there are no such Care Alerts to produce.” (Def.’s Oppo. at 7 n.2 (emphasis added).)
However, this representation is part of Defendants’ argument within its points and
authorities — it is not supported by citation to a declaration, discovery response, or
other evidence upon which Plaintiff can reasonably rely. Defendants have not
produced a verified discovery response indicating that, after a reasonable search, no
responsive documents exist. Indeed, Defendants’ actual response to this RFP does
not clearly state that no “Care Alerts” are within Defendants’ possession, although
Defendants represented as much in their response to the preceding RFP (i.e., RFP
No. 90). (See Declaration of Wendy York (“York Decl.”), Exh. L at 22-23; Pl.’s
Consolidated Sep. Statement at 21-22.) If Defendants now take the position that
Defendants do not possess any documents responsive to this RFP because they
do not keep records of “Care Alerts” for longer than two weeks, Defendants shall
clearly state as much in a properly verified further response to the RFP that complies
with Code of Civil Procedure § 2031.230.

If no documents responsive to RFP No. 91 exist, the Court declines to engage in a
purely academic determination as to whether Defendants’ objections to that particular
RFP have merit. Accordingly, Plaintiff’s motion is GRANTED as to RFP No. 91.
Plaintiff’s motion to compel further responses to RFP Nos. 92-93 are GRANTED.
RFP No. 92 seeks certain “VPQS reports” that Defendants produced in a previous
separate litigation, and RFP No. 93 seeks “VPQS reports” “during [Plaintiff’s]
residency” (without referencing the other litigation).

Defendants apparently do not stand on objections that the requested “VPQS reports”
are irrelevant or that these RFPs are too vague and ambiguous to comply with.
Instead, based upon Defendants’ Opposition briefing, Defendants object to producing
the “VPQS reports” on grounds they are private, proprietary, and/or business sensitive.
(Def.’s Oppo. at 6.) Yet Defendants do not clearly describe what sorts of
private/confidential information would potentially appear within VPQS reports from
Plaintiff’s time as a resident in Defendants’ facility. Nor do Defendants explain why
confidentiality concerns surrounding such information cannot be avoided if the
documents are produced subject to a protective order. Nor do Defendants explain why
responsive documents could not be produced with redactions of names and other
identifying information so as to protect third party privacy interests. Accordingly, the
Court orders production of responsive documents; however, the Court will gladly
entertain a stipulation or request for a protective order limiting the disclosure of such documents.
Defendants also broadly argue that VPQS reports were “generated in order to assess
and improve the quality of care of residents, and thus are protected by Evidence Code
§ 1157.” (Def.’s Oppo. at 10-11.) Yet to date Defendants have not compellingly
shown that the requested “VPQS reports” come within the scope of being “records of
[an] organized committee[] of . . . a peer review body” that has “the responsibility of
evaluation and improvement of quality of care” under Evidence Code § 1157.

Defendants’ brief generally describes the kinds of information Evidence Code § 1157
has protected in other cases, but Defendants do not apply that law specifically to the
requested documents here. Defendants do not describe precisely what the requested
“VPQS reports” are, nor do they explain how those documents fit within the scope of
Evidence Code § 1157. (Def.’s Oppo. at 10-11.) Defendants did not offer any
declarations or evidence to support the broad argument that the requested documents
“are generated in order to assess and improve the quality of care of residents” within
the scope of Evidence Code § 1157. (Id.) Defendants’ Opposition brief failed to
adequately explain how such privilege actually applies to any particular responsive
documents.

Moreover, Defendants have not provided Plaintiff with a privilege log that would reveal
whether Defendants are actually withholding documents based upon the “quality
assurance privilege” it asserts under Evidence Code § 1157 (or based upon other
privileges). If Defendants are withholding documents responsive to RFP Nos. 92-93
on grounds of privilege, Defendants must provide a privilege log. (Code Civ. Proc. §
2031.240.) The Court is not persuaded that a privilege log would be especially
onerous or is unnecessary here. (Def.’s Oppo. at 11-12.) To the extent Defendants
object on grounds relating to third party privacy interests, the Court is not persuaded
that it would be particularly onerous to redact the names of residents and other
identifying information prior to producing the documents.

Accordingly, the Court is not persuaded by the objections asserted in Defendants’
Opposition. Plaintiff’s motion to compel further responses to RFP Nos. 92-93 is
GRANTED. However, if Defendants wish to maintain objections on grounds of
privilege, Defendants shall produce a privilege log within fourteen days, unless the
parties stipulate to a different deadline. (Code Civ. Proc. § 2031.240.) Again, the
Court will gladly entertain a stipulation or request for a protective order limiting the
disclosure of documents responsive to these RFPs.

Plaintiff’s motion to compel further responses to RFP No. 100 is GRANTED.

RFP No. 100 seeks “Quality Service Reports” for all of Defendants’ facilities in
California. Defendants argue that the request for “all” “Quality Service Reports” from
any facility in California, regardless of the subject of such reports, is overbroad and
would reveal private or confidential information. (Def.’s Oppo. at 6.) In her moving
papers, however, Plaintiff indicates that the RFP seeks only “Quality Service Reports”
for Defendants’ “facilities in Sacramento.” (Pl.’s Ps & As at 14 (emphasis added).)
While the Court agrees that the request is broad, Defendants have not shown that the
request is prohibitively overbroad or that it would be unduly burdensome for
Defendants to respond to the RFP as limited to facilities “in Sacramento.”
Defendants also object on grounds that the Quality Service Reports would reveal
private and/or confidential information (Def.’s Oppo. at 6), yet Defendants never
describe what sorts of private information would potentially appear within the requested “Quality Service Reports.” Nor do Defendants explain why its confidentiality
concerns surrounding such information cannot be avoided if the documents were
produced subject to a protective order. Nor do Defendants explain why responsive
documents could not be produced with redactions of names and other identifying
information so as to protect third party privacy interests. The Court will gladly entertain
a stipulation or request for a protective order limiting the disclosure of such documents.
Defendants also broadly argue that Quality Service Reports were “generated in order
to assess and improve the quality of care of residents, and thus are protected by
Evidence Code § 1157.” (Def.’s Oppo. at 10-11.) Yet to date Defendants have not
compellingly shown that the requested Quality Service Reports come within the scope
of being “records of [an] organized committee[] of . . . a peer review body” that has “the
responsibility of evaluation and improvement of quality of care” under Evidence Code §
1157. Defendants’ brief generally describes the kinds of information Evidence Code §
1157 has protected in other cases, but Defendants do not apply that law specifically to
the requested documents here. Defendants do not describe precisely what it believes
the requested Quality Service Reports to be, nor does it explain how those documents
fit within the scope of Evidence Code § 1157. (Def.’s Oppo. at 10-11.) Defendants did
not offer any declarations or evidence to support the position that the requested
documents “are generated in order to assess and improve the quality of care of
residence” within the scope of Evidence Code § 1157. (Id.) Defendants’ Opposition
brief failed to adequately explain how such privilege actually applies to any particular
responsive documents.

More crucially, Defendants have not provided Plaintiff with a privilege log that would
reveal whether Defendants are actually withholding documents based upon the
“quality assurance privilege” it asserts under Evidence Code § 1157 (or based upon
other privileges). If Defendants are withholding documents responsive to RFP No. 100
on grounds of privilege, Defendants must provide a privilege log. (Code Civ. Proc. §
2031.240.) The Court is not persuaded that a privilege log would be especially
onerous or is unnecessary here. (Def.’s Oppo. at 11-12.)

To the extent Defendants object on grounds relating to third party privacy interests, the
Court is not persuaded that it would be particularly onerous to redact the names of
residents and other identifying information prior to producing the documents.
Accordingly, the Court is not persuaded by the objections asserted in Defendants’
Opposition. Plaintiff’s motion to compel further responses to RFP No. 100 is
GRANTED. However, if Defendants wish to maintain objections on grounds of
privilege, Defendants shall produce a privilege log within fourteen days, unless the
parties stipulate to a different deadline. (Code Civ. Proc. § 2031.240.) Again, the
Court will gladly entertain a stipulation or request for a protective order limiting the
disclosure of documents responsive to this RFP.

Plaintiff’s motion to compel further responses to RFP No. 103 is DENIED. RFP
No. 103 seeks documents pertaining to “EBITDARM.” According to Defendants,
“EBITDARM” is “a financial acronym that refers to ‘Earnings before Interest, Taxes,
Depreciation, Amortization, Rent and Management fees.’” (Def.’s Oppo. at 3 n.3.)
Defendants argue that the request for documents referring to “EBITDARM in effect
from 2008-2012” is overbroad and would reveal private financial information. (Def.’s
Oppo. at 6-7.) Given this definition of “EBITDARM,” the Court agrees with Defendants that these
corporate financial documents are entitled to some degree of privacy protection.
Plaintiff has not shown that the requested information is “directly relevant” and
“essential” to proving whether Defendants’ facility was adequately staffed, or whether
Defendants “ratified” employee misconduct at the facility. The Court is not persuaded
that Plaintiff’s broad requests for all documents referring to “EBITDARM” (i.e., referring
to Defendants’ “Earnings”) over a period of five years is “directly relevant” to whether
Defendants’ facility was understaffed during the time of the alleged rape, and/or
whether Defendants ratified employee misconduct in connection therewith, and/or
whether Defendants prioritized financial welfare over the welfare of residents.

Further, the requested discovery also invades Defendants’ financial privacy rights
under Civil Code § 3295(c), which prohibits discovery regarding Defendants’ “financial
condition” absent certain conditions. Plaintiff’s RFP No. 103 is a request for
documents referring to Defendants’ financial “Earnings before . . . Taxes,” and Plaintiff
has not explained how discovery regarding such “earnings” does not amount to
discovery of Defendants’ “financial condition.” As a result, Plaintiff has not met the
requirements to obtain financial discovery under Civil Code § 3295(c).
Plaintiff has failed satisfy the requirement of Code of Civil Procedure § 2031.310(b)(1)
that the moving party “set forth specific facts showing good cause” justifying the
discovery at issue here.

Accordingly, for all the foregoing reasons, Plaintiff’s motion to compel further
responses to RFP No. 103 is DENIED.

The Court makes its ruling based on weighing the privacy at issue and the overbreadth
of this RFP against the need for the discovery, as well as in consideration of Civil Code
§ 3295(c). The Court is not persuaded that the discovery implicates any privilege, or
that Defendants’ other objections are proper. Given the foregoing, the Court need not
and does not determine whether the requested documents would be protected by the
attorney-client privilege or work product doctrine.

Summary

Plaintiff’s motion to compel further responses is DENIED with respect to RFP Nos.
RFP Nos. 9, 10, 103, 109, and 110. Plaintiff’s motion to compel further responses is
GRANTED with respect to RFP Nos. RFP Nos. 51, 55, 57-59, 91-93, and 100.
The Court in its discretion DENIES the request for sanctions in connection with these
RFPs.

Special Interrogatories, Set One

Plaintiff’s motion to compel further responses to Special Interrogatory No. 5 is
GRANTED. Special Interrogatory No. 5 asks Defendants to provide the name of the
male resident who allegedly raped Plaintiff.

Defendants object to providing the individual’s name, citing the individual’s privacy
rights and protection under Health Insurance Portability and Accountability Act
(“HIPAA”). (Pl.’s Ps & As at 6.) Defendants also filed a redacted deposition transcript
indicating that Plaintiff’s daughter already knows the name of the alleged rapist.
Defendants also indicate that they offered to provide the name subject to a protective order. (Def.’s Oppo. at 2-3; Declaration of Robert R. Deering (“Deering Decl.”) ¶ 3.)

In Reply, Plaintiff argues that a protective order is unnecessary because Plaintiff seeks
only the individual’s name, and because Plaintiff intends to amend her pleading to
name the individual as a defendant. (Pl.’s Reply at 3.) Plaintiff also notes that even if
Plaintiff’s daughter might know the name of the suspected individual, this does not
relieve Defendants of their obligation to respond to discovery on this central issue.
Defendants have not cited authorities showing that the male individual’s “right to
privacy” or “constitutional right to sexual privacy” prevents disclosure of his name in
this particular case, where the individual is alleged to have raped Plaintiff while they
both resided at Defendants’ facility. Moreover, this Special Interrogatory seeks
“directly relevant” information essential to the fair resolution of Plaintiff’s claims, and
this discovery request is narrowly-drawn. (See Britt, supra, 20 Cal.3d at 859-862.) To
the extent HIPAA might otherwise prevent Defendants from disclosing the individual’s
name, HIPAA permits such disclosures when they are made pursuant to court orders,
and such disclosures may be made “without the written authorization of the individual”
in question and “without the opportunity for the individual to agree or object .“ (See 45
C.F.R. § 164.512(e)(1)(i) (providing in part that “A covered entity may disclose
protected health information in the course of any judicial or administrative proceeding:
[¶] … In response to an order of a court or administrative tribunal, provided that the
covered entity discloses only the protected health information expressly authorized by
such order.”) (emphasis added).) Accordingly, the Court orders Defendants to
respond to Special Interrogatory No. 5 by providing the male individual’s full name,
without any additional identifying information or health/medical information.

Plaintiff’s motion to compel further responses to Special Interrogatory No. 11 is
DENIED. Special Interrogatory No. 11 asks Defendants whether its staff size “would
ensure the safety of” Plaintiff. Rather than stating “yes” or “no,” Defendants responded
by stating that Defendants complied with the staffing levels required by applicable
regulations. However, Defendants object on grounds that the phrase “ensure the
safety” is vague and ambiguous. (Def.’s Oppo. at 3.) Defendants are correct that the
interrogatory “does not identify the risk or threat” to safety, and does not “state the
meaning of the word ‘ensure’, which could mean completely guarantee Plaintiff’s
safety or substantially protect Plaintiff or something else.” (Id.) Defendants’ objections
are well taken. The parties are ordered to meet and confer to attempt to resolve the
interrogatory’s ambiguities.

Plaintiff’s motion to compel further responses to Special Interrogatory Nos. 65-66 is
DENIED for all the same reasons described above in connection with Plaintiffs’ motion
to compel production of documents referring to “EBITDARM,” (i.e., RFP No. 103).

The Court in its discretion DENIES the request for sanctions in connection with these
Special Interrogatories.

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