Case Number: BC525029    Hearing Date: July 18, 2014    Dept: NCB

6. BC525029
MERLENE WOODS v GLENDORA GRAND
Motion for:
1. Order compelling Defendant to serve further responses to Plaintiffs’ special interrogatory, number 2.
2. Order imposing monetary sanctions of $1,060 on the Defendant

This case arises from the Plaintiffs’ claim that Merlene Woods suffered personal injuries and a wrongful death when the Defendants committed elder abuse and provided negligent medical treatment while she was under the Defendants’ care and custody. The causes of action for elder abuse and violation of Patient’s Bill of Rights are brought on behalf of Merlene Woods by her successor in interest, Lana Cole. In addition, Ms. Woods’ children, Lana Cole, Jeff Moore, and Oscar Moore, have brought a claim for wrongful death.

This hearing concerns the Plaintiffs’ motion for an order compelling the Defendant, Glendora Grand, Inc., to serve further responses to the Plaintiffs’ special interrogatory number 2. Under CCP section 2030.300, the Court may order a party to serve further responses to interrogatories when the responses are incomplete or when they contain unmerited objections.
The Defendant opposes the motion by arguing that it is untimely and that the Plaintiffs did not meet and confer.

Under CCP section 2030.300, a motion to compel further responses must be filed and served no later than 45 days after the service of the responses or supplemental responses. If the responses are served by mail, then the time is extended by five days.
The Defendant served supplemental responses to the Plaintiffs’ special interrogatories on April 15, 2014 by mail (see copy of supplemental responses in exhibit D). The supplemental responses included a response for special interrogatory 2. The Plaintiffs had 50 days, or until June 4, 2014, to serve their motion. A review of the Plaintiffs’ motion reveals that it was filed on June 4, 2014. Since the Plaintiffs filed the motion within the time required by CCP section 2030.300, it is timely.

This dispute arises from the Defendant’s refusal to provide contact information for its employees who worked at the facility during the time that the Plaintiff was a patient. After the Defendant served the supplemental responses on April 15, 2014, the Plaintiff sent a letter to meet and confer on May 12, 2014 and May 15, 2014 regarding the Defendant’s failure to provide contact information (copy of letter in exhibit E). These letters indicate that the Plaintiff made a good faith attempt to meet and confer regarding this dispute before filing the motion on June 4, 2014.

Accordingly, there are no grounds to find that the Plaintiffs’ motion is untimely or that the Plaintiff did not make a good faith attempt to meet and confer before filing the motion.

The Plaintiffs’ special interrogatory 2 requested the Defendant to identify all employees who worked at the facility during the relevant time period. The Plaintiffs defined “identify” to include the full name, last known residence, employment addresses, telephone numbers, job titles, and whether they are currently or formerly employed at the facility. The phrase “relevant time period” was defined to be the time period between September 1, 2011 through September 24, 2012.
The Plaintiff then agreed to limit the employees to those on the nursing staff who worked in the unit where Merlene Woods resided (letter dated March 7, 2014 in exhibit C, page 2, second paragraph).

The Defendant’s supplemental response included the following objections:

1) overly broad in scope and time;
2) the definition of employee is overly broad, vague, and ambiguous;
3) irrelevant and not reasonably calculated to lead to the discovery of admissible evidence; and
4) invades privacy of third persons.

The Defendant then identified the names of individuals on the nursing staff who were assigned to the unit where Merlene Woods resided and who are current employees. The Defendant has provided the names, addresses, and telephone numbers of former employees. The dispute in this motion concerns solely the addresses and telephone numbers of the current employees.

The Defendant’s opposition argues that the contact information cannot be provided to the Plaintiffs under Rules of Professional Conduct, rule 2-100. This rule bars a member of the bar from communicating with a party the member knows to be represented by another lawyer in the matter if the subject of the communication is any act or omission of the party in connection with the matter. Rule 2-100 defines “party” to include an employee of a corporation, if the subject of the communication is any act or omission of such person in connection with the matter which may be binding upon or imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization.
The Defendant argues that the Plaintiffs’ attorney cannot contact its current employees who provided nursing care to Merlene Woods because this case involves their care for Merlene Woods. This is an elder abuse case in which the Plaintiffs claim that the Defendants failed to provide basic custodial care and services, e.g., the Defendants failed to turn and reposition Ms. Woods, assist her with basic hygiene, or keep her clean. In addition, the Plaintiffs claim that the Defendants failed to provide competent and sufficient staff. Since the Plaintiff is claiming that the Defendant’s employees failed to provide basic custodial care and services, the communications with the employees may involve their acts or omissions and may constitute an admission on the part of the organization related to its staffing levels or training.
The Plaintiffs argue that the Defendant’s attorney did not state that she represented each employee. This is not required under Rule 2-100 because the definition of “party” includes the employees. Since the individuals are employees of Glendora Grand, Inc., they fall within the definition of represented party.
Further, the Plaintiffs argue that they are not seeking to obtain information about the employee’s conduct and that the Plaintiffs merely seek to obtain information that they perceived as percipient witnesses. However, this is not a case where the Plaintiff slipped and fell and the employees may have witnesses to the slip and fall.
Instead, as discussed above, the Plaintiffs’ case is based on establishing that the Defendant’s employees failed to provide custodial care and services and that the Defendant failed to provide competent and sufficient staff. The Defendant has identified the names of the current employees who were on the nursing staff in the area where Merlene Woods was a resident. Since these employees were involved in providing care to residents and they know the staffing levels and training, communications with these employees may involve their acts or omissions in connection with the pending case and statements that could constitute an admission on the part of the Defendant. Accordingly, the Defendant has demonstrated that it objection to providing the contact information for its current employees has merit.

The Plaintiffs attempted to resolve these issues in the meet and confer letters by proposing a stipulation that would require the Defense counsel to accept deposition and trial subpoenas for the current employees. However, the Defendant’s attorney, Judith Tishkoff, declined to enter into the stipulation. Instead, Ms. Tishkoff offered to make the individuals available on reasonable notice. Further, Ms. Tishkoff stated that if the individual is no longer employed, then the Defendant will provide their contact information.

The Plaintiffs’ stipulation is unnecessary. The Plaintiffs have the names of the current employees. The Plaintiffs can simply services notices for their deposition on the Defendant’s attorney and, if they do not appear, filed the appropriate motion for relief. There was no need for the pending motion or any stipulation.

Therefore, the Court denies the Plaintiffs’ motion to compel further responses because the Defendant’s objection that the Plaintiffs’ attorney cannot contact their current employees has merit.