2011-00095046-CU-PO

Sean Suh vs. Sunrise Lodge, LLC

Nature of Proceeding: Motion to Compel Form Interrogatories

Filed By: York, Wendy C.

This motion was continued to this date to allow the parties to submit further briefing on
the application of the 5th amendment privilege. After reviewing the supplemental
briefing filed by defendant on November 15, and by plaintiff on November 25 and 27,
the Court rules as follows:

Plaintiff’s Motion to Compel Further Responses to Form Interrogatories from
Defendant Cardenas is granted.

The Court is not considering the alleged evidence referred to at paragraph 10 of
Wendy York’s declaration. The evidentiary objections to that paragraph and to
paragraph 2 of the supplemental York declaration filed on November 25, 2013 are
sustained.

This is an elder abuse action in which plaintiff alleges she suffered neglect at Fair
Oaks Residential Elderly Care, where Defendant Cardenas was an employee
caregiver. Decedent allegedly received a fatal dose of a medication that was not
prescribed to her. Plaintiff served form interrogatories seeking facts about the
“incident.” In response, defendant asserted an objection to the term “incident” as well
as one based on the Fifth Amendment Privilege against self incrimination. Plaintiff
contends that the privilege no longer attaches as defendant was already prosecuted
for the acts, pled no contest and is currently serving probation.

Form Interrogatories
Granted as to Items: 2.12, 2.13, 12.1 (who witnessed incident) 12.2, 12.3, 12.4, 12.5,
12.6, 12.7, 13.1, 13.2, 14.1, 14.2, 15.1, 16.1, 16.2, 16.3, 16.4, 16.5, 16.6, 16.7, 16.8,
and 16.9.

The term “incident” is defined in the Form Interrogatories and is not ambiguous.

There is no blanket Fifth Amendment Right to refuse to answer questions in non-
criminal proceedings. Warford v Medeiros (1984) 160 Cal.App.3d 1035, 1044-1045.
The privilege must be claimed as to a specific question. Id.

Cardenas was prosecuted and plead guilty only for “rough handling” that occurred in
April of 2010. She was prosecuted for those acts after the decedent had died and
after the DSS conducted an extensive investigation into all events that led up to the
death of decedent. DSS received all of the information leading up to her death,
including numerous records of violations at the facility, the decedent’s medical records,
the private coroner’s report, and the death certificate. The private coroner’s report
indicated that the cause of death was “severe atherosclerotic coronary artery disease
with a “toxic level of hydromophone [sic],” among other things, listed as a
“contributory” factor. (Declaration of Burns, Ex. F) The Death Certificate lists cause of
death as Cardiopulmonary Arrest, Deconditioning, and Dementia.

Cardenas pled guilty to two instances of “rough handling.” There is no reasonable
cause to apprehend danger from any particular question related to the “rough
handling” as prosecution for that conduct is barred under Kellett v Superior Court
(1966) 63 Cal.2d 822. See also Blackburn v Superior Court (1993) 21 Cal.App.4th
414, 427. Courts that are confronted with a civil defendant who is exposed to criminal
prosecution arising from the same facts shall “weigh the parties’ competing interests
with a view toward accommodating the interests of both parties, if possible.” (Pacers,
Inc. v. Superior Court (1984) 162 Cal. App. 3d 686, 690.) Courts have broad discretion
in controlling the course of discovery. (Obregon v. Superior Court (1998) 67 Cal.
App.4th 424, 431.)

As noted, Cardenas pled guilty to the offense (no contest) and is serving probation.
Cardenas is no longer “exposed” to criminal prosecution arising from the same
offense. Article I, section 13, of the California Constitution [“No person shall be twice
put in jeopardy for the same offense. . . .”] See, also Penal Code Section 654 [“An act
or omission which is made punishable in different ways by different provisions of this
code may be punished under either of such provisions, but in no case can it be
punished under more than one; an acquittal or conviction and sentence under either
one bars a prosecution for the same act or omission under any other.”] In Ciucci v.
Illinois, 356 U.S. 571, 575, the US Supreme Court warned that prosecution of closely
related individual offenses at separate trials may constitute an impermissible denial of
that fundamental fairness required by the due process clause of the Fourteenth
Amendment. Generally, when the prosecution is or should be aware of more than one offense in which the same act or course of conduct plays a significant part, all such
offenses must be prosecuted in a single proceeding unless joinder is prohibited or
severance permitted for good cause. Failure to unite all such offenses will result in a
bar to subsequent prosecution of any offense omitted if the initial proceedings
culminate in either acquittal or conviction and sentence. (Kellett v. Superior Court,
(1966) 63 Cal. 2d 822, 827; see also People v. Davis (2005) 36 Cal. 4th 510, 557;
People v. Valli (2010) 187 Cal. App. 4th 786, 795-796.)

Further, Cardenas makes no evidentiary showing of exposure to criminal prosecution.
The Court granted a continuance to allow defendant to present evidence that
Cardenas risks exposure to prosecution for the alleged fatal dose of non-prescribed
medication. The Court is invited to speculate to this fact, and it declines to do so.

Code of Civil Procedure section 2017 allows discovery into “any matter, not privileged,
that is relevant to the subject matter involved in the pending action.” (Code Civ. Proc.,
§ 2017, subd. (a).) However, a party is not entitled to decide for himself or herself
whether the privilege against self-incrimination may be invoked. “‘Rather, this question
is for the court to decide after conducting “a particularized inquiry, deciding, in
connection with each specific area that the questioning party seeks to explore, whether
or not the privilege is well founded.” [Citation.]’ [Citations.]” ( Warford v. Medeiros
(1984) 160 Cal. App. 3d 1035, 1045 [involving nonparty’s right to invoke privilege
against self-incrimination], italics added by Medeiros, quoting from S. E. C. v. First
Financial Group of Texas, Inc. (5th Cir. 1981) 659 F.2d 660, 668].) This principle
applies in both civil and criminal proceedings, and under both the federal and state
Constitutions. (Warford v. Medeiros, supra, 160 Cal. App. 3d at p. 1045; Blackburn v.
Superior Court (1993) 21 Cal. App. 4th 414, 428; Alvarez v. Sanchez (1984) 158 Cal.
App. 3d 709, 712.) Only after the party claiming the privilege objects with specificity to
the information sought can the court make a determination about whether the privilege
may be invoked. (Blackburn v. Superior Court, supra, 21 Cal. App. 4th 414.)

Cardenas contends that the alleged fatal dose of non-prescribed medication in June of
2010 is not related to the “rough handling” incidents as it is not the same event or
course of conduct. Plaintiff contends that the providing of care to the decedent over
several months is a single course of conduct that would preclude prosecution of
Cardenas for murder arising out administration of medication to the decedent.
However, even if the administration of medication was a “separate event,” and not
within the purview of Kellet, the Court finds that the privilege is not well-founded with
respect to any potential murder or manslaughter charge, based on the fact that the
DSS was already in possession of all relevant information in 2010 and did not
prosecute Cardenas for a crime arising out of giving medication to decedent.

“If the court, in the exercise of its discretion, determines that no threat of self-
incrimination is evident, then the burden of showing the danger of self-incrimination
shifts to the individual asserting the privilege.” Troy v. Superior Court, (1986) 186
Cal.App.3d 1006, 1011. As defendant was unable to obtain any confirmation of any
pending or potential further prosecution of Cardenas, Defendant has not met her
burden of proving any “real danger” of further incrimination. (Id) It is axiomatic that a
witness who claims the Fifth Amendment privilege has the burden of showing that the
testimony or other evidence could tend to be incriminating. Fuller v. Superior Court
(2001) 87 Cal. App. 4th 299, 305.

Defendant has failed to address how the particular discovery requests implicate the 5th Amendment Privilege. Co-defendant Myung S. Kim was able to successfully
assert the privilege because there had been no prosecution as of that date. In this
case, as has been noted, Cardenas has already been prosecuted and convicted for
her conduct in caring for decedent after DSS was aware of all of the facts, including
the allege cause of death including a toxic level of hydromorphone in her system.
There is no evidence other than speculation that Cardenas is subject to further
prosecution. Defendant’s position effectively would result in a permanent stay of this
action and prevent the action from going forward. Allegations of “chemical restraints”
contributing to death are ubiquitous in elder abuse cases. Defendant’s position would
effectively allow any defendant in any elder abuse case to plead the 5th amendment
privilege when asked about the chemical restraints. Such an absurd result seems
inconsistent with the broad grant of discovery, and the Court’s necessary obligation to
“weigh” the parties’ competing interests based on admissible evidence. Further, Courts
have broad discretion in controlling the course of discovery. (Obregon v. Superior
Court (1998) 67 Cal. App.4th 424, 431.)

The case of Nacht & Lewis Architects v Superior Court (1996) 47 Cal.App.4th 214
does not provide blanket protection from answering form interrogatories seeking
witness information.

Nacht addressed form interrogatory No. 12.3, which asks for the names of witnesses
from whom written or recorded statements have been obtained. (See Coito v. Superior
Court (2012) 54 Cal.4th 480, 500 (Coito).) Nacht held that a list of witnesses from
whom counsel took recorded statements at his or her own initiative constituted
qualified work product “because it would tend to reveal counsel’s evaluation of the
case by identifying the persons who claimed knowledge of the [facts] from whom
counsel deemed it important to obtain statements.” (Nacht, at p. 217.) Qualified work
product “is not discoverable unless the court determines that denial of discovery will
unfairly prejudice the party seeking discovery in preparing that party’s claim or defense
or will result in an injustice.” (Code Civ. Proc., § 2018.030, subd. (b).)

This holding in Nacht was significantly limited in Coito, where the court wrote:
“Because it is not evident that form interrogatory No. 12.3 implicates the policies
underlying the work product privilege in all or even most cases, we hold that
information responsive to form interrogatory 12.3 is not automatically entitled as a
matter of law to absolute or qualified work product privilege. Instead, the interrogatory
usually must be answered unless the objecting party makes a preliminary or
foundational showing that answering the interrogatory would reveal the attorney’s
tactics, impressions, or evaluation of the case, or would result in opposing counsel
taking undue advantage of the attorney’s industry or efforts.” McVeigh v Recology San
Francisco (2013) 213 Cal.App.4th 443, citing Coito, supra, 54 Cal.4th at p. 502.

Further Responses are to be served, without objections, on or before February 21,
2014.

Sanctions are denied on the ground that the assertion of the 5th Amendment privilege
was not without substantial justification.

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

2011-00095046-CU-PO

Sean Suh vs. Sunrise Lodge, LLC

Nature of Proceeding: Motion to Quash Deposition Subpoena Issued to Coldwell Banker

Filed By: Chadbourne, Sueanne D.

Defendants’ motions to quash the deposition subpoenas issued to Coldwell Banker
and Stewart Title are denied.

In this elder abuse action, Defendants Fair Oaks Residential Elderly Care, et al., move
to quash deposition subpoenas issued by Plaintiffs to Coldwell Banker and Stewart
Title which seek records regarding defendants Myung and Jay Kim’s (“Kim
Defendants”) recent sale of real property to their children for no valuable consideration.
Plaintiffs seek to obtain said documents in connection with their cause of action for
fraudulent conveyance against the Kims.

Defendants first argue that the subpoena constitutes an unlawful invasion of privacy
because it seeks information related to the sale of the subject property at any time and
thus seeks the records of unnamed individuals, not just the Kims. Defendants also
argues that Plaintiffs failed to give mandatory notice to consumers pursuant to CCP §
1985.3(b).

In opposition, Plaintiffs contend that the parties reached an agreement whereby
Defendants would withdraw their objections to the subpoenas and remove the instant
motions from calendar. (York Decl. ¶ 9.) Plaintiffs’ counsel’s declaration attaches a
letter she sent to Defendants’ counsel purporting to summarize a telephone
conference in which Defendants counsel stated he was no longer objecting to the
subpoenas and would withdraw the instant motions and asking for confirmation of the
same. (Id., Exh. D.). However, there is no confirmation from Defendants’ counsel.
While Plaintiffs’ counsel also points to the parties’ October 23, 2013, Stipulation, that
document, while allowing Plaintiffs to conduct discovery with respect as to the Kim
Defendants’ financial condition by way of deposition, including document production,
does not specifically address subpoenas directed to non-parties, though the Court
recognizes the subpoenas would potentially address similar topics. Thus, Plaintiffs
have not shown a definitive agreement resolving the issues raised by the instant
subpoenas.

The Court first finds that Defendants have not shown the existence of any privacy right
that would require quashing the subpoenas. While Defendants argue that the
subpoenas are not limited and seek documents related to unnamed third parties, the
subpoenas are not as broad as Defendants suggest. Indeed, the subpoenas appear
to be drafted to seek documents related to the Kim Defendants’ transfer of the subject
real property to their adult sons. If true, it is relevant to the so-called “badges of fraud”
that can guide the Court in determining whether the transfer was fraudulent, and hence
a relevant inquiry for plaintiff under CCP section 3439.04(b). Further, the subpoena
identifies the property by address and the specific escrow file. (York Decl. ¶ 7.) The
subpoenas do not appear, as Defendants argue, to seek documents related to the
property at any time, they are limited to the specific transfer at issue between the Kim
Defendants and their sons. To the extent Defendants read the subpoenas more
broadly, it appears that the parties can readily agree on the reading of the subpoenas
as Plaintiffs and this Court interpret them. Thus, the contention that the privacy rights
of unnamed individuals are being infringed upon by the subpoenas is unfounded and
no basis upon which to quash the subpoenas. Defendants’ reference listing agents
and tax personnel in the motion, but information regarding such individuals was not
requested in the subpoenas.

In addition, the Court rejects the arguments that Plaintiffs failed to provide proper
notice to consumers as required by CCP § 1985.3(b). Defendants’ contention is based
upon their assertion that Plaintiffs sought the records of all property owners, at any
time. They did not. Indeed, as set forth above, the subject subpoenas only seek
records pertaining to the recent real property transaction between the Kim Defendants
and their children. The subpoenas were thus directed to the relevant title company
and real estate agent. CCP § 1985.3(b) requires that “[p]rior to the date called for in
the subpoena duces tecum for the production of personal records, the subpoenaing
party shall serve or cause to be served on the consumer whose records are being
sought a copy of the subpoena duces tecum, of the affidavit supporting the issuance of
the subpoena, if any, and of the notice described in subdivision (e), and proof of
service as indicated in paragraph (1) of subdivision (c).” Here, Plaintiffs served the
required documents on Coldwell Banker, the real estate company, Mark Levens, the
real estate agent involved in the subject transaction, Stewart Title, the title company,
the Kim Defendants, and their children. Thus Plaintiffs complied with CCP § 1985.3
(b).

Defendants also argue that Plaintiffs ignored their attempts to meet and confer. The
Court finds that Plaintiffs’ counsel has shown that she met and conferred regarding
these issues. Indeed, it appears that there may have been some apparent
miscommunication as Ms. Chadbourne sent a meet and confer letter on October 24,
2013, regarding the subpoenas, yet Plaintiffs’ counsel appears to have had extensive
discussions with Mr. Beach from regarding the subpoenas. (York Decl. ¶ 8, Exh. C.)
No sanctions will be imposed upon Plaintiffs based upon a failure to meet and confer.

The Court also declines to award Plaintiffs sanctions. Indeed, Plaintiffs seek sanctions
based on their contention that Defendants failed to meet and confer before bringing
the motion because they failed to honor their agreement to withdraw their objections to
the subpoenas and drop the instant motions, but as seen above, the Court found that
Plaintiffs had not shown a definitive agreement by Defendants to do so. Further, while
Plaintiffs cite to CCP § 2023.010 to argue that the motion itself constitutes a misuse of
the discovery process, they have not cited to a specific statute that would allow
sanctions to be imposed in the context of the instant motion to quash. Indeed,
sanctions for a misuse of the discovery process are only permitted to “the extent
authorized by the chapter governing the particular discovery method or any other
provision of this title…” (CCP § 2023.030.) Other than citing the statute defining
discovery misuses and the type of sanctions allowed for such misuse, they cite no
statute authorizing sanctions in the context of the instant motion to quash. For
example, they did not seek sanctions pursuant to CCP § 1987.2.

The motions are denied.

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