Case Name: Carol Kowallis, et al. v. Aspen Skilled Healthcare, Inc., et al.

Case No.: 18CV323374

Plaintiff’s Motion to Compel Defendants’ Further Responses to Plaintiffs’ Requests for Production of Documents, Set One, Nos. 8-10, 23-24, 28, 32-33, 41-42, 44-48 and Form Interrogatory 4.1; Request for Sanctions

Factual and Procedural Background

Plaintiffs Carol Kowallis and Linda Wallace (“Plaintiffs”) are the surviving issue of decedent Donald Kowallis (“Decedent”) and successors-in-interest to Decedent’s estate. (Complaint, ¶1.) Defendant ALGD, LLC dba Stonebrook Health and Rehabilitation (“ALGD”) owned, leased, licensed, operated, administered, managed, directed, and/or controlled Stonebrook Health and Rehabilitation (“Stonebrook”), a skilled nursing facility in Los Gatos. (Complaint, ¶3.) Decedent was a resident of Stonebrook from approximately July 10, 2017 through approximately September 27, 2017. (Complaint, ¶7.) Decedent was 83 years old upon admission to Stonebrook. (Complaint, ¶8.)

Plaintiffs allege defendants failed to provide care and treatment to Decedent leading to Decedent’s death on November 10, 2017. (Complaint, ¶¶13 – 29.) Plaintiffs filed a complaint against ALGD and others on February 13, 2018 asserting causes of action for:

(1) Violation of Patient’s Rights
(2) Elder Abuse/ Neglect
(3) Negligence
(4) Wrongful Death
(5) Survivorship

On April 19, 2018, defendant ALGD filed an answer to Plaintiffs’ complaint.

Discovery Dispute

On April 9, 2018, plaintiffs served defendant ALGD with a Request for Production of Documents (“RPD”), set one, and form interrogatories (“FI”), set one.

On May 29, 2018, defendant ALGD served plaintiffs with its responses to RPD and FI.

On July 6, 2018, when no responsive documents had been produced by defendant, plaintiffs’ counsel requested and defendant’s counsel granted an open extension of plaintiffs’ motion to compel deadline to try to resolve the issues informally.

On October 2, 2018 and October 17, 2018, plaintiffs’ counsel wrote a letter to defendant’s counsel in an attempt to meet and confer regarding the responses and requested documents. On October 19, 2018, plaintiffs’ counsel re-sent the two prior meet and confer letters in an attempt to obtain the requested documents. Plaintiffs did not receive any further responses or documents by October 22, 2018. On October 25, 2018, plaintiffs filed the motion now before the court, a motion to compel defendant ALGD’s further response to RPD, numbers 8 – 10, 23 – 24, 28, 32 – 33, 41 – 42, and 44 – 48, and to FI, number 4.1.

On February 6, 2019, defendant ALGD served amended responses to RPD and FI concurrently with its opposition to plaintiffs’ motion to compel.

II. Plaintiffs’ motion to compel further responses to RPD, set one, and FI, set one, is GRANTED, in part, and DENIED, in part.

A. Legal standard – RPD.

Upon receipt of a response to a demand for inspection, including requests for the production of documents, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply:

1. A statement of compliance with the demand is incomplete.
2. A representation of inability to comply is inadequate, incomplete, or evasive.
3. An objection in the response is without merit or too general.

(Code Civ. Proc., §2031.310, subd. (a)(1) – (3).)

The motion for order compelling further responses “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” (Code Civ. Proc., §2031.310, subd. (b)(1); Kirkland v. Sup. Ct. (2002) 95 Cal.App.4th 92, 98 (Kirkland).) To establish “good cause,” the burden is on the moving party to show both relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case) and specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). (Glenfed Develop. Corp. v. Sup. Ct. (1997) 53 Cal.4th 1113, 1117.) Where the moving party establishes “good cause,” the burden shifts to the responding party to justify its objections. (Kirkland, supra, 95 Cal.App.4th at p. 98.)

When discovery responses are served after a motion to compel is filed, the court has substantial discretion in deciding how to rule in light of the particular circumstances presented. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409 (Sinaiko).) Through this discretion, the court might deny the motion to compel as moot and just impose sanctions, or examine the responses to determine if they are code-compliant. (Sinaiko, supra, 148 Cal.App.4th at p. 409.)

B. Merits – RPD.

1. RPD, numbers 8 – 10, 45.

In opposition, defendant ALGD indicates it has provided an amended response and/or produced the document(s) responsive to these requests. Consequently, the court deems the motion to compel defendant ALGD’s further responses to RPD, numbers 8 – 10 and 45 to be MOOT.

2. RPD, numbers 23 – 24.

RPD, number 23, seeks “Any and all correspondence, including, but not limited to, e-mails, letters or other memoranda sent to or received by YOU regarding the budget at the FACILITY during the time period from January 1, 2016 through and including the date of YOUR response to this request.

According to plaintiffs, “The budgeting documents requested are directly relevant to Plaintiffs’ claims that the Facility was recklessly understaffed, which goes directly to showing wrongful conduct by a managing agent, an essential element of Plaintiffs’ elder abuse claims.” In this court’s opinion, plaintiffs have not sufficiently set forth specific facts showing good cause justifying the discovery sought by the inspection demand. As phrased, RPD, number 23, is extremely overbroad. While the staffing budget may be relevant to the allegations asserted by plaintiffs’ complaint, the request seeks budget information without limitation.

Since plaintiffs have failed to demonstrate good cause for the discovery sought by this inspection demand, plaintiffs’ motion to compel defendant ALGD’s further response to RPD, number 23, is DENIED.

Plaintiffs’ RPD, number 24, is more narrowly tailored in seeking “Any and all DOCUMENTS regarding variations in the labor budget at FACILITY during the time period from January 1, 2015 through and including the date of YOUR response to this request…” Defendant ALGD objects on the basis that RPD, number 24, seeks discovery in violation of Civil Code section 3295. “Pretrial discovery of a defendant’s financial condition in connection with a claim for punitive damages is prohibited absent a court order.” (Kerner v. Sup. Ct. (2012) 206 Cal.App.4th 84, 119.) Indeed, pursuant to Civil Code section 3295, “[p]retrial discovery of a defendant’s financial condition in connection with a claim for punitive damages is prohibited absent a court order.” (Kerner v. Sup. Ct. (2012) 206 Cal.App.4th 84, 119, italics added.) That proscription is intended to curb financial discovery “unrelated to the substantive claim involved in the lawsuit and relevant only to the subject matter of a measure of damages which may never be awarded.” (Rawnsley v. Sup. Ct. (1986) 183 Cal.App.3d 86, 91.) Where financial discovery is sought for purposes other than to assess a punitive damages claim, however, the proscription of Civil Code section 3295 does not apply. (Id.) Here, plaintiffs do not appear to be seeking financial discovery for the purpose of assessing a punitive damages claims, but rather, for the purpose of determining liability. Thus, Civil Code section 3295 is inapplicable, and the objection is overruled.

Plaintiffs’ motion to compel defendant ALGD’s further response to RPD, number 24, is GRANTED. Defendant ALGD shall provide a further response, without objection and in compliance with the Code of Civil Procedure, to RPD, number 24 and produce any responsive documents within 15 days from notice of entry of this order.

3. RPD, number 28.

RPD, number 28, seeks “Any and all documents reflecting the annual budget for the FACILITY during the time period from January 1, 2016 through and including the date of YOUR response to this request.” For the same reasons discussed above with regard to RPD, number 23, plaintiffs’ motion to compel defendant ALGD’s further response to RPD, number 28, is DENIED.

4. RPD, numbers 32 – 33.

RPD, number 32, seeks “Any and all documents reflecting RUG scores of all residents at the FACILITY during the time period from July 10, 2017 through and including August 16, 2017. (Resident names and other identifying information may be redacted in the interest of privacy.)”

RPD, number 33, seeks “Any and all documents reflecting RUG scores of all residents in DONALD KOWALLIS’s unit at the FACILITY during the time period from July 10, 2017 through and including August 16, 2017. (Resident names and other identifying information may be redacted in the interest of privacy.)”

According to plaintiffs, RUG scores reflect the amount of care that each individual resident requires (RUG scores are divided into categories – ultra-high (U), high (H), medium (M) or low (L)) and determine the Medicare reimbursement rate. A greater number of residents requiring a high level of care would necessarily require additional staff to provide that care. RPD, numbers 32 – 33, are relevant in determining whether defendant ALGD was adequately staffed or understaffed.

In opposition, defendant ALGD contends the requests are overbroad and irrelevant. In drafting the requests as they have, request number 33 is a more specific subset of the same information sought by request number 32. The court agrees with defendant AGLD that RPD, number 32, is overbroad. The adequacy of staffing is relevant, but plaintiffs have not demonstrated the relevance for the broad scope of request number 32.

Accordingly, plaintiffs’ motion to compel defendant ALGD’s further response to RPD, number 32, is DENIED. Plaintiffs’ motion to compel defendant ALGD’s further response to RPD, number 33, is GRANTED. Defendant ALGD shall provide a further response, without objection and in compliance with the Code of Civil Procedure, to RPD, number 33 and produce any responsive documents within 15 days from notice of entry of this order.

5. RPD, numbers 41 – 42.

RPD, number 41, seeks “Defendant STONEBROOK’s (erroneously called Ceres Postacute in request) audit trail log (also known as an access audit trail or audit log) showing each time that DONALD KOWALLIS’s medical records were accessed or viewed from the date of his admission through and including the date of YOUR response to this request.”

RPD, number 42, seeks “Any and all documents, reports, or printouts of the electronic trail that identifies who accessed or viewed DONALD KOWALLIS’s medical records from the date of his admission through and including the date of YOUR response to this request.”

According to plaintiffs, an electronic trail is created each time a patient’s medical records has been accessed. The electronic record is subject to manipulation. The electronic audit trail is necessary to confirm what is being represented by a printout of a patient’s medical record. Defendant acknowledges the existence of such an audit trail as it is required by law, but contends it is only in place for the limited purpose of monitoring privacy violations. Defendant ALGD contends that there are no allegations of a violation of Decedent’s privacy so the audit trail is irrelevant.

Plaintiffs allege in the complaint that at the time of his admission to Stonebrook, Decedent “had a Stage II coccyx pressure ulcer, was at high risk for developing pressure ulcers, needed assistance with turning and repositioning, and had dementia, a displaced fracture of the right humerus, and difficulty walking, among other illnesses and disabilities.” (Complaint, ¶13.) Plaintiffs allege, “that DEFENDANTS failed to maintain prompt and accurate documentation regarding [Decedent]. For example, DEFENDANTS’ Admission/Readmission Screen, dated July 10, 2017, noted that [Decedent] had a Stage II pressure ulcer on his sacrum and a blister on his lower back. On August 6, 2016 [sic], DEFENDANTS’ Progress Notes and Weekly Non-Pressure Ulcer Observation Tool noted that the ‘lower black blister … healed’ and the ‘skin discolorations [on the] sacrum and lower back resolved.’ Moreover, from his admission to the FACILITY through August 16, 2017, DEFENDANTS’ Skin Check Sheets for [Decedent] noted that ‘he had no skin tears, red areas, open areas, pressure ulcers, skin lesions, or rashes. However, when [Decedent] was transferred to Good Samaritan Hospital on August 17, 2017, the hospital found that he was admitted with a ‘sacral decubitis [that is] unstageable with erythema around it.’ … On August 23, 2017, [Decedent] was re-admitted to STONEBROOK. DEFENDANTS, in a transparent attempt to conceal their neglect, noted [Decedent] had an ‘unstageable’ coccyx pressure ulcer with a false onset date of August 23, 2017.” (Complaint, ¶¶15 – 16.)

The clear import of these allegations is that Decedent’s medical record has been inaccurately documented and/or manipulated. Based on such allegations, the court finds the audit trail to be relevant and plaintiffs have demonstrated good cause to justify the discovery sought by RPD, numbers 41 – 42.

Defendant ALGD argues further in opposition that RPD, numbers 41 – 42, seek documents protected by the peer review privilege set forth in Evidence Code section 1157, subdivision (a). That section states:

Neither the proceedings nor the records of organized committees of medical, medical-dental, podiatric, registered dietitian, psychological, marriage and family therapist, licensed clinical social worker, professional clinical counselor, pharmacist, or veterinary staffs in hospitals, or of a peer review body, as defined in Section 805 of the Business and Professions Code, having the responsibility of evaluation and improvement of the quality of care rendered in the hospital, or for that peer review body, or medical or dental review or dental hygienist review or chiropractic review or podiatric review or registered dietitian review or pharmacist review or veterinary review or acupuncturist review committees of local medical, dental, dental hygienist, podiatric, dietetic, pharmacist, veterinary, acupuncture, or chiropractic societies, marriage and family therapist, licensed clinical social worker, professional clinical counselor, or psychological review committees of state or local marriage and family therapist, state or local licensed clinical social worker, state or local licensed professional clinical counselor, or state or local psychological associations or societies having the responsibility of evaluation and improvement of the quality of care, shall be subject to discovery.

On its face, the court is not persuaded that the privilege applies here. Evidence Code section 1157 speaks of the proceedings and records of organized committees or peer review bodies of a hospital. In one of the decisions cited by defendant ALGD, the case involved a request to discover “the hospital’s ‘personnel and/or staff file,’ the files of the credentials committee of the hospital staff, its executive committee, its tissue committee and its records committee.” (Matchett v. Superior Court (1974) 40 Cal.App.3d 623, 626.) In this court’s own independent research, the legal decisions addressing this privilege suggests that it is limited to hospitals.

Even if not limited to hospitals, defendant ALGD does not adequately demonstrate that the discovery sought by RPD, numbers 41 – 42, implicate proceedings or records of a peer review body or organized committee having the responsibility of evaluation and improvement of the quality of care at the Facility. “That the request ‘may include materials generated by hospital committees’ (emphasis added) is not enough. Hospital, which is resisting discovery in trying to show entitlement to nondisclosure, must sufficiently establish “that an answer cannot be given without divulging the ‘proceedings [or] the records’ of the medical staff committees to which section 1157 refers.” (Brown v. Superior Court (1985) 168 Cal.App.3d 489, 501.)

Finally, defendant ALGD contends the information sought by these two requests is protected by the attorney-client privilege. Defendant cites Scripps Health v. Superior Court (2003) 109 Cal.App.4th 529 (Scripps) to support its position that the audit trail is an attorney-client communication because it will disclose each instance that a medical record is opened even if it is at the request of counsel. Scripps is distinguishable on its facts. In Scripps, heirs of a decedent sued defendant Scripps hospital arising from decedent’s hospitalizations at the defendant’s facility. The plaintiffs sought to discover all records of any incidents which were not included in the medical report. The defendant withheld five “occurrence reports” on the basis of attorney-client and work product privileges. “The occurrence report form states in bold letters at the top “CONFIDENTIAL: Not part of medical record / Do not photocopy.” The form seeks information about the occurrence and asks for an evaluation of the significance level of the occurrence in terms of the potential for claims or litigation.” (Scripps, supra, 109 Cal.App.4th at p. 532.) The Scripps court reversed a lower court ruling which granted a motion to produce the occurrence reports by explaining:

It has long been recognized that communications made by an insured to his “ ‘liability insurance company, concerning an event which may be made the basis of a claim against him covered by the policy, is a privileged communication, as being between attorney and client, if the policy requires the company to defend him through its attorney, and the communication is intended for the information or assistance of the attorney in so defending him.’ …” (Travelers Ins. Companies v. Superior Court (1983) 143 Cal.App.3d 436, 448-449 [191 Cal.Rptr. 871], citations omitted.) (4c) Here, the reports were “primarily created for the purpose of attorney review whether or not litigation is actually threatened at the time a report is made.” Based on Scripps’s self-insured status, the reports were also used by the risk managers as de facto insurance claims handlers. These facts, which plaintiffs did not dispute, compel a finding that the occurrence reports are attorney-client privileged communications.

(Id. at p. 535.)

Here, the audit trail is akin to metadata identifying, among other things, who is accessing a patient’s medical records. Even if defendant’s counsel requested access to Decedent’s records, the material being sought does not disclose the content of any communication between defendant ALGD and its attorney.

Defendant ALGD has not substantiated its objections. Accordingly, Plaintiffs’ motion to compel defendant ALGD’s further response to RPD, numbers 41 – 41, is GRANTED. Defendant ALGD shall provide a further response, without objection and in compliance with the Code of Civil Procedure, to RPD, numbers 41 – 42 and produce any responsive documents within 15 days from notice of entry of this order.

6. RPD, numbers 44 and 46 – 48.

RPD, number 44, seeks “Any and all documents reflecting operating agreements between YOU and any other defendant or entity.”

In support of good cause, plaintiffs contend the “operating agreements between Defendant and other entities is directly relevant to Plaintiffs’ claims of wrongful conduct by a managing agent, an essential element of Plaintiffs’ elder abuse claims. These documents are regularly produced by Defendants in the litigation of elder abuse cases.” The court does not follow this logic. Plaintiffs have not demonstrated how an operating agreement between defendant ALGD and another defendant or entity would tend to prove or disprove an issue in this case. Accordingly, plaintiffs’ motion to compel defendant ALGD’s further response to RPD, number 44, is DENIED.

RPD, number 46, seeks “Any and all DOCUMENTS reflecting Program for Evaluating Payment Patterns Electronic Reports (PEPPER) for the FACILITY for the time period from January 1, 2015 through and including the date of YOUR response to this request.”

According to plaintiffs, a PEPPER report is a comparative data report of a facility’s Medicare claims data statistics compared to with aggregate Medicare data for other providers in the nation. A PEPPER report also supports a facility’s auditing and monitoring. Plaintiffs contend the PEPPER is directly relevant to their claims that the facility was understaffed. Plaintiffs have not adequately explained to the court and/or demonstrated how a PEPPER report will demonstrate understaffing. Accordingly, plaintiffs’ motion to compel defendant ALGD’s further response to RPD, number 46, is DENIED.

RPD, number 47, seeks “Any and all DOCUMENTS reflecting Rehab Utilization Reports for the FACILITY for the time period from January 1, 2015 through and including the date of YOUR response to this request.”

Plaintiffs contend the analysis of this RPD is the same as with RPD, number 32. This is not an adequate demonstration of good cause. Plaintiffs do not explain the distinction between a Rehab Utilization Report and a RUG score and, thus, fail to persuade this court that a Rehab Utilization Report has a tendency to prove or disprove an issue in this case. Accordingly, plaintiffs’ motion to compel defendant ALGD’s further response to RPD, number 47, is DENIED.

RPD, number 48, seeks “Any and all DOCUMENTS reflecting Variance Reports for the FACILITY for the time period from January 1, 2015 through and including the date of YOUR response to this request.”

Plaintiffs contend the analysis of this RPD is the same as with RPD, number 23. This is not an adequate demonstration of good cause. Plaintiffs do not provide any definition of a Variance Report and fail to explain the distinction between a Variance Report and budgeting documents. Thus, plaintiffs fail to persuade this court that a Variance Report has a tendency to prove or disprove an issue in this case. Accordingly, plaintiffs’ motion to compel defendant ALGD’s further response to RPD, number 48, is DENIED.

C. Legal standard – FI.

“On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete. (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate. (3) An objection to an interrogatory is without merit or too general.” (Code Civ. Proc., §2030.300.)

When discovery responses are served after a motion to compel is filed, the court has substantial discretion in deciding how to rule in light of the particular circumstances presented. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409 (Sinaiko).) Through this discretion, the court might deny the motion to compel as moot and just impose sanctions, or examine the responses to determine if they are code-compliant. (Sinaiko, supra, 148 Cal.App.4th at p. 409.)

D. Merits – FI.

FI, number 4.1, asked, in part, “At the time of the INCIDENT, was there in effect any policy of insurance through which you were or might be insured in any manner … for the damages, claims, or actions that have arisen out of the INCIDENT? If so, for each policy state ….”

Plaintiffs acknowledge receipt of a declarations page, but contend defendant ALGD’s response was not complete in that it did not answer all the subparts of the form interrogatory.

In opposition, defendant ALGD contends a complete insurance policy was produced subsequent to plaintiffs’ filing of this motion and defendant ALGD has concurrently provided an amended response with its opposition to this motion. As such, the court will deem the motion to compel defendant ALGD’s further responses to FI, number 4.1, to be MOOT.

E. Sanctions.

On the issue of sanctions, Code of Civil Procedure section 2031.310, subdivision (h) mandates an award of monetary sanctions “against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” Code of Civil Procedure section 2030.300, subdivision (d) mandates an award of monetary sanctions “against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

“The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.” (Cal. Rules of Court, rule 3.1348, subd. (a).)

Although plaintiffs prevailed in part, plaintiffs did not prevail on the entirety of their motion to compel further responses. Under the circumstances, the court is not inclined to award sanctions. Plaintiffs’ request for sanctions is, therefore, DENIED.