2015-00186569-CU-PO

Dean Higgs vs. Plum Healthcare Group, LLC

Nature of Proceeding: Motion to Compel Production of Documents

Filed By: Dudensing, Edward P.

Plaintiffs’ Dean Higgs, et al. motion to compel Defendant Oleander Holdings, LLC dba Sacramento Post-Acute (“Defendant”) to produce documents responsive to Plaintiffs’ Request for Production of Documents, Sets Four and Five, is GRANTED IN PART and DENIED IN PART as stated below.

In this elder abuse action, Plaintiffs seek to compel Defendant to produce documents in response to Plaintiffs’ Requests for Production Sets Four and Five.

RFP Set Four

RFP Nos. 96-97

RFP No. 96 seeks “All DOCUMENTS sufficient to show the total RUG distribution of all patients in YOUR subacute unit during the period of January 1, 2012 – December 31, 2014.”

RFP No. 97 seeks “All DOCUMENTS sufficient to show the total RUG distribution of all patients in YOUR non-subacute unit during the period of January 1, 2012 – December 31, 2014.”

As asserted by Plaintiff, the “RUG distribution” refers to the Resource Utilization Group (“RUG”) distribution. (Dudensing Decl. ¶ 17.) The Center for Medicare and Medicaid Services (CMS) categorizes patients in RUG groups based on their acuity and care needs to determine the level of reimbursement to provide them. (Id.) In this action, Plaintiffs maintain that Sacramento Post-Acute was severely understaffed and that this understaffing was the root cause of the reckless neglect Mr. Higgs suffered. (Plaintiffs’ Second Amended Complaint ¶¶ 12, 17-18.) To reach an opinion regarding the appropriate level of staffing at Sacramento Post-Acute, and in particular the sub-acute unit where Mr. Higgs resided, plaintiffs need to determine the level of acuity of each patient in this unit of the facility. From the collective RUG distribution for the patients in the subacute unit, plaintiffs’ staffing expert will be able to render an opinion as to the staff that was required to properly care for these patients. (Dudensing Decl. ¶ 17.) If, as plaintiffs expect, Sacramento Post-Acute did not have the staffing necessary to properly care for the high acuity patients it had, this would powerfully support plaintiffs’ contention that defendants not only neglected Mr. Higgs, but were reckless in doing so. Id.; see also Fenimore v. Regents of the University of California, 245 Cal.App.4th 1339, 1343-1350 (2016) (proof of understaffing sufficient to support a claim of reckless neglect under the Elder Abuse Act).

Defendant interposes the same objections to each RFP Nos. 96-97, and has refused to provide the requested documents, as follows:

Objection. This request is vague, ambiguous, overbroad as to time, burdensome and harassing. This request is not reasonably calculated to lead to the discovery of information relevant to the subject matter of this action nor to lead to the discovery of admissible. This request seeks information that violates the privacy rights of uninvolved third parties and implicates HIPAA violations.

(Sep. Statement at 2.)

The objections are meritless. The Court is not persuaded that a three-year time period is overbroad; the period bookends the nine-month period in which Plaintiff was a resident at the facility. (Opp’n at 5.) Plaintiffs’ theory is, in part, that Defendant had a pattern and practice of understaffing. The time period in the RFPs targets documents that may lead to the discovery of evidence in support of that theory. The RUG codes for certain dates during the time that Plaintiff was a resident of Defendant may evidence the clinical condition and nursing needs of each resident, and they are relevant to show the collective acuity of residents, and thus the staffing needs at Defendant during Plaintiff’s residency. Finally, there are no valid privacy or HIPAA concerns because resident names can be redacted. Indeed, Plaintiffs’ moving papers expressly state a willingness to receive responsive documents with such redactions,

which Defendant’s Opposition entirely ignores. The proposal described in Plaintiffs’ Reply at 6, wherein patient names used in responsive documents will be redacted and substituted with identification numbers by a third party (at Plaintiffs’ expense) shall be used here.

As a result, as to RFP Nos. 96-97 in Set Four, the motion is GRANTED. On or before 12/21/18, Defendants shall produce documents responsive to RFP Nos. 96-97 in Set Four.

The Court notes that in the Opposition, Defendant represents that “no responsive documents exist . . . or have already been produced” with respect to these RFPs. (Opp’n at 5.) These contradictory representations, however, were not made as part of Defendants’ actual discovery responses and are therefore not properly before the Court now. The Court rules on the actual discovery responses before it, as reflected in the Separate Statement, and finds that Defendant’s objections therein are not well-taken and are hereby overruled. The Court orders Defendant to produce all documents responsive to RFPs 96-97.

RFP Set Five

RFP Nos. 99-100

RFP Nos. 99-100 seek documents relating to call light response times. RFP No. 99 seeks documents “sufficient to identify every instance Mr. Higgs activated his call button,” and RFP No. 100 seeks documents “sufficient to identify the response time in connection with each instance that Mr. Higgs activated his call button.”

In its discovery responses, Defendant preserved its objections, but also gave a substantive response to these RFPs:

Objection. This request is vague, ambiguous, overbroad as to time, burdensome and harassing. This request is not reasonably calculated to lead to the discovery of admissible evidence. Further, this request violates the defendant’s right to privacy in its business operations.

Without waiving the above objections, defendant responds as follows: Defendant is unable to comply with this request. After a diligent search and reasonable inquiry to respond to this request, no responsive documents exist in responding defendant’s possession, custody, or control, nor have they ever existed. Discovery and investigation is continuing.

Defendant reserves the right to use subsequently discovered information.

(Sep. Statement at 6-8.)

Plaintiff now argues that Defendant’s “meritless objections” should be ruled upon and that “the Court should order defendants to provide an amended response that eliminates all objections.” (P&As at 8.)

Plaintiff has not identified any authorities requiring a court to rule upon the responding

party’s preliminary objections where, despite the objections, the responding party has also unequivocally responded that “no responsive documents exist.” Absent authorities in this regard, the Court declines to engage in the purely academic exercise of ruling on objections that the responding party apparently does not stand upon. There is nothing before the Court to indicate that Defendant is withholding responsive documents based on those objections.

As a result, as to RFP Nos. 99-100 in Set Five, the motion is DENIED.

RFP No. 102

RFP No. 102 seeks “DOCUMENTS sufficient to identify the bonus structure(s) for YOUR eligible employees at any time during the period of January 1, 2012 – December 31, 2014.”

Defendant’s response to RFP No. 102 states:

Objection. This request is vague, ambiguous, overbroad as to time, burdensome and harassing. This request is not reasonably calculated to lead to the discovery of admissible evidence. Further, this request violates the defendant’s right to privacy in its business operations.

Without waiving the above objections, defendant responds as follows: Defendant will comply with this request during the time period of January 2, 2014 through September 3, 2014. After a diligent search and reasonable inquiry to respond to this request, the responsive documents that exist in responding defendant’s possession, custody, or control, are produced concurrently herewith.

(Sep. Statement at 9.)

Plaintiff argues that Defendant should be compelled to produce additional documents beyond those Defendant has produced in response to this RFP. Plaintiff argues, “Defendant has provided documents showing the bonus structure for some employees but have omitted documents showing the bonus structure for other key employees, including but not necessarily limited to, the Director of Nurses and the Administrator.” (Sep. Statement at 9 (citing Dudensing Decl. ¶ 11).)

Defendant argues that it “has produced all responsive documents in response to Request No. 102” and that “there are no other responsive documents.” (Opp’n at 6 (citing Declaration of David Terry (“Terry Decl.”) ¶¶ 7-8.) David Terry, Administrator at Oleander Holdings from January 2, 2014 to September 3, 2014, declares that Defendant “produced the three bonus structures which were in place during Mr. Higgs’ admission and which show the amounts of the bonuses which were paid,” and that Defendant “is not in possession of any other documents which would be responsive to Request No. 102.”

On Reply, Plaintiff argues only that this court should issue an “order striking defendant’s objections” to RFP No. 102. (Reply at 6-7) Again, Plaintiff has not identified any authorities requiring a court to rule upon the responding party’s

objections where, despite the objections, the responding party has also unequivocally responded. Absent authorities in this regard, the Court declines to engage in the purely academic exercise of ruling on objections that the responding party apparently does not stand upon. There is nothing before the Court to indicate that Defendant is withholding responsive documents based on objections here.

The Court notes that, with respect to RFP No. 102 specifically, Defendant provided responsive documents for the “time period of January 2, 2014 through September 3, 2014,” even though the RFP requested documents for “the period of January 1, 2012 through December 31, 2014.” However, nothing in Plaintiffs’ papers addresses these differing time periods. As a result, Plaintiff has neither argued for nor shown entitlement to additional documents outside the date range as narrowed by Defendant.

As a result, as to RFP No. 102 in Set Five, the motion is DENIED.

RFP Nos. 103-109

RFP Nos. 103-109 seek information regarding Defendant’s cost reports, status as a co -signor on lines of credit, status as a co-signor on mortgage obligations, and other financial information. (Sep. Statement at 10- 36.)

Plaintiffs’ direct liability theory of the case is that defendants have engaged in a systematic and long-standing practice of maximizing profits over patient care, and the requested documents would show the ability of the corporate overseer to exercise complete control over the various facilities, including Defendant. (P&As at 10-11; Dudensing Decl. ¶ 12.) Plaintiffs argue that section 3295 does not prohibit the discovery of financial information if it is relevant to other material issues in the litigation, rather than solely for the purpose of assessing punitive damages. (Rawnsley v. Super. Ct. (1986) 183 Cal.App.3d 86, 91-92.).) Plaintiff argues that the requested documents are reasonably calculated to lead to the discovery of admissible evidence regarding the defendants’ alleged shared goal of maximizing profits at the expense of patient care. (Id.) Plaintiffs contend the information is directly relevant to their allegations that Defendant was understaffed and operated with budgetary constraints motivated by its desire to maximize profits, and increased profitability by reducing expenditures for staff, training, supervision, medication, and care. Plaintiffs argue such information is, thus, relative to liability, not financial worth for the purpose of assessing punitive damages.

The Court agrees. Parenthetically, this very issue was addressed recently by the court in a related motion in this case. Essentially, Plaintiffs are seeking the information to establish Defendant’s approaches to staffing and care were reckless, malicious, oppressive, or fraudulent, which are elements of liability for enhanced remedies under the Elder Abuse Act. (See Welf. & Inst. Code § 15657; CACI 3104, 3113, 3114, and 3115.)

Plaintiffs also argue that the requested documents bear on Plaintiff’s “joint venture theory of liability against the corporate overseer defendants” and also the “alter ego” theory. (P&As at 10 (“If . . . all facilities [must] sign off on agreements rendering them liable for credit and mortgage obligations incurred by other parties within the enterprise . . . it would be hard to conceive of more compelling evidence showing the intent and desire of the various entities within the enterprise to act as a single joint venture. They would literally be agreeing in writing to guaranty and thereby share in losses and debt incurred by other parts of the enterprise.”).)

Defendant objected to these requests on grounds that they violate Civil Code § 3295’s prohibition on discovery of a defendant’s financial condition. (Opp’n at 6-7.)

However, Plaintiff argues that nothing in Civil Code § 3295 precludes the discovery or use of profits and financial condition information if the purpose is for plaintiffs to establish a case for damages pursuant to Civil Code § 3294. Plaintiffs argue that these RFPs seek information to establish the underlying liability issues, rather than to show entitlement to punitive damages. (Reply at 7-8.) Plaintiffs note that they raised these arguments during the meet and confer process, but that Defendant never responded directly to the arguments, including in the Opposition filed here.

The Court finds that Plaintiffs have made the requisite showing here. The motion is GRANTED as to RFPs 103-109 of Set Five. On or before 12/21/18, Defendant shall produce documents responsive to these RFPs, as narrowed by the parties’ meet and confer efforts (as described in the Separate Statement at 12-33).

Defendant’s Request for Discovery Referee

Defendant’s request for a discovery referee is denied at this time. Generally, such a request must be made by way of noticed motion. The Court does, however, strongly encourage the parties to stipulate to the appointment of a discovery referee. The Court notes that there are a number of discovery motions in the near future and to the extent that the parties do not stipulate to a discovery referee, the Court will consider appointing a discovery on its own motion pursuant to CCP § 639(a)(5) to address all discovery disputes in this matter and may well do so on the date of any of the upcoming motions.

No sanctions were requested and none are awarded.

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

Item 4 2015-00186569-CU-PO

Dean Higgs vs. Plum Healthcare Group, LLC

Nature of Proceeding: Motion to Compel Production of Documents

Filed By: Dudensing, Edward P.

Plaintiffs Dean Higgs, et al.’s motion to compel the depositions of certain individuals affiliated with defendant Oleander Holdings, LLC dba Sacramento Post-Acute and produce documents is GRANTED as follows.

In this elder abuse action the Court is faced with yet another discovery motion. At issue in this motion are the depositions of the following 12 witnesses:

1. Margarita Arce, LVN

2. Jaswinder Dhillon, LVN
3. Angela Lee, LVN
4. Jenifer Marcus, RN

5. Kristel Raney, LVN

6. Erin Mancinas, MDS Coordinator
7. Phillip Mellijor, MDS Coordinator
8. Samuel Mieske, Physical Therapist
9. Sally Newell, Registered Dietician
10. Maria Amaton, Social Services Director
11. Praveen Sharma, Social Services Director
12. Sheila Racimo, Assistant Director of Nursing

On June 26, 2018, Plaintiffs noticed the depositions of the foregoing individuals, as well as Andres Pattiann and Wagner Teleu, for a total of 14 witnesses. Defendant, however, has provided available dates for Andres Pattiann and Wagner Teleu.

Therefore, the two depositions are not at issue in this motion.

As to the remaining 12 witnesses, on June 27, 2018, Defendant served objections to the depositions as noticed, but indicated Defendant would work with Plaintiffs to arrange mutually agreeable dates for all deponents defense counsel represents. In meet and confer correspondence, Defendant indicated only Kristel Raney, Andres Pattiann, Jaswinder Dhillon, and Sam Mieske are still employed and would be produced. Defendant stated it would produce contact information for the remaining individuals. Plaintiff contends Defendant has failed to provide available dates for the outstanding witnesses.

Defendant contends it only represents three of the twelve witnesses whose depositions are being requested – Jaswinder Dhillon, LVN, Kristel Raney, LVN, and Samuel Mieske, Physical Therapist. Defendant further contends it has provided Plaintiffs with the last-known contact information for the remaining nine witnesses. (Barber Decl. ¶ 17.) As to these nine witnesses whom Defendant does not represent, the motion is denied as they cannot be produced by Defendant. As the witnesses are no longer employed, they cannot be produced by Defendant and instead can be subpoenaed.

On reply, Plaintiffs request that the Court issue an order requiring Defendant to produce any of these former employees that defense counsel comes to represent in the future within 30 days of coming to represent them. This request, first made in the reply brief, is denied. However, the parties are ordered to meet and confer to arrive at a protocol in the event defense counsel comes to represent such former employees. Should Defendant come to represent any of the former employees who are at issue in this motion, the Court strongly urges defendant to produce the former employee(s) within 30 days of coming to represent them, or at such other time as the parties may agree. This is without prejudice to Plaintiffs making such a motion in the event the parties are unable to agree.

As to the remaining witnesses, the motion to compel is granted. Defendant does not dispute that good cause exists to depose these witnesses. Rather, Defendant contends it has been working to get the depositions set, but Plaintiffs’ counsel has recently noticed 50 other depositions for which they also seek deposition dates, but Plaintiffs’ counsel has refused to provide guidance as to how long they need with each of the over 50 witnesses. This is not a basis upon which to deny the motion to compel. The depositions shall be completed no later than December 28, 2018, unless the parties mutually agree upon a later date in writing.

Defendant’s request in its opposition for a discovery referee is denied at this time. Such a request may be made by way of a noticed motion. The Court does, however, strongly encourage the parties to stipulate to the appointment of a discovery referee. The Court notes that there have already been a number of discovery motions and there appear to be further motions that will be filed in the future. To the extent that the parties do not stipulate to a discovery referee, the Court may consider appointing a discovery on its own motion pursuant to CCP § 639(a)(5) to address all discovery disputes in this matter.

Plaintiffs’ request for monetary sanctions is granted in the amount of $735 ($675/hr x 1 hr + $60 filing fee) to Plaintiffs from Defendant. Sanctions are to be paid on or before December 28, 2019. If sanctions are not paid by that date, Plaintiffs may prepare a formal order granting sanctions for the Court’s signature, and the order may be enforced as a separate judgment. (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615.)

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

Item 5 2015-00186569-CU-PO

Dean Higgs vs. Plum Healthcare Group, LLC

Nature of Proceeding: Motion to Compel Deposition

Filed By: Dudensing, Edward P.

Plaintiffs Dean Higgs, et al.’s second motion to compel the depositions of various CNAs and LNs is GRANTED as follows.

In this elder abuse action the Court is faced with yet another discovery motion. At issue in this motion are the depositions of the following witnesses:

1. Mary Jane Camacho, LVN

2. Aleksey Koleukhov, RN
3. Desmond Bangura, LVN
4. Christine Kisaubli, LVN
5. Frances Wanger, LVN

On July 16, 2018, the Court previously granted Plaintiffs’ motion to compel Defendant Oleander Holdings, LLC dba Sacramento Post-Acute to produce the various CNAs and LNs for deposition no later than August 16, 2018. To date, Defendant has yet to produce the witnesses.

Defendant contends two of the witnesses, Aleksey Koleukhiv, RN and Desmond Bangura, LVN are no longer employed by Defendant and, therefore, cannot be produced by Defendant. As to these witnesses, the motion is denied. As the witnesses are no longer employed, they cannot be produced by Defendant and instead can be subpoenaed. Indeed, Defendant indicates Mr. Koleukhov informed Defendant he had received a subpoena for his deposition.

On reply, Plaintiffs request that the Court issue an order requiring Defendant to produce any of these former employees that defense counsel comes to represent in

the future within 30 days of coming to represent them. This request, first made in the reply brief, is denied. However, the parties are ordered to meet and confer to arrive at a protocol in the event defense counsel comes to represent such former employees.

Should Defendant come to represent any of the former employees who are at issue in this motion, the Court strongly urges defendant to produce the former employee(s) within 30 days of coming to represent them, or at such other time as the parties may agree. This is without prejudice to Plaintiffs making such a motion in the event the parties are unable to agree.

As to the remaining witnesses, the motion to compel is granted. As noted above, on July 16, 2018, the Court already ordered Defendant to produce these witnesses for deposition. Further, Defendant does not dispute that good cause exists to depose these witnesses. Rather, Defendant contends it has been working to get the depositions set, but Plaintiffs’ counsel has recently noticed 50 other depositions for which they also seek deposition dates, but Plaintiffs’ counsel has refused to provide guidance as to how long they need with each of the over 50 witnesses. This is not a basis upon which to deny the motion to compel. The depositions shall be completed no later than December 28, 2018, unless the parties mutually agree upon a later date in writing.

Defendant’s request in its opposition for a discovery referee is denied at this time. Such a request may be properly made by way of a noticed motion. The Court does, however, strongly encourage the parties to stipulate to the appointment of a discovery referee. The Court notes that there have already been a number of discovery motions and there appear to be further motions that will be filed in the future. To the extent that the parties do not stipulate to a discovery referee, the Court may consider appointing a discovery on its own motion pursuant to CCP § 639(a)(5) to address all discovery disputes in this matter.

Plaintiffs’ request for monetary sanctions is granted in the amount of $735 ($675/hr x 1 hr + $60 filing fee) to Plaintiffs from Defendant. Sanctions are to be paid on or before December 28, 2019. If sanctions are not paid by that date, Plaintiffs may prepare a formal order granting sanctions for the Court’s signature, and the order may be enforced as a separate judgment. (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615.)

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