2015-00185641-CU-PO

Rebecca Hammons vs. Sunrise of Carmichael

Nature of Proceeding: Motion to Compel Production of PMK Deposition

Filed By: Jay, Daniel

Plaintiff’s Motion to Compel Production of PMK documents following the PMK deposition is ruled on as follows:

This elder abuse action alleges that decedent Mrs. Williams experienced un-supervised falls in defendant’s facility. Mrs. Williams allegedly died from a acute subdural hematoma caused by her last fall. Plaintiff contends that Sunrise of Carmichael was understaffed which led to Mrs. Williams’s unsupervised falls. Plaintiff seeks three categories of documents that were noticed to be produced at the PMK deposition of Mark Roder in the subject of “Organizational Structure. Mr Roder testified that SSLMI enters into a management contract with owners of residential care facilities wherein SSLMI provides the employees, management, and the care delivery system for the residential care facilities and that, among other things, the management agreement spells out the budgeting process.

Request for Production No. 6 seeks “Any and all contracts between Sunrise Senior Living Management, Inc. and Sunrise of Carmichael from 2010-2014. The motion to compel is granted, subject to a standard protective order to be entered after the parties meet and confer to agree on the text and content of the protective order.

Plaintiff contends that the management agreement between SSLMI and the owner of the facility is relevant and necessary to prove material elements in this case including identifying which entity was responsible for setting the budget (i.e. staffing and training) for Sunrise of Carmichael; whether all necessary defendants

have been brought into the case; and whether the property owner could be directly liable for the injuries of decedent.

Defendant’s objections are overruled. In particular, Defendant has not met its burden of proof that this agreement is a trade secret. A party seeking to suppress information on confidentiality/privacy grounds has the burden to explain the nature of the objection and the reasons for nondisclosure. (Brown v. Superior Court (1985) 168 Cal.App.3d 489 at 500-501; see also Britt v. Superior Court (1978) 20 Cal.3d 844, 855-856 (court must conduct balancing tests in order to determine whether a privacy objection is substantial.

Defendant suggests that plaintiffs can obtain the information about staffing from time cards and census documents. These documents are obviously essential but they do not provide evidence as to why Sunrise of Carmichael was allegedly understaffed.

Plaintiff’s Reply refutes defendant’s argument that the management agreements should be kept confidential because they are not publicly available. Persuasively, in HCP Laguna Creek CA, LP et al v. Sunrise Senior Living Management, Inc. (E.D. VA 2010) 737 F.Supp.2d 533, the court specifically addressed a dispute between SSLMI and residential care facility property owner about how SSLMI performed under the terms of the management agreement. (Request for Judicial Notice at ¶ 1.) The HCP court’s discussion about § 6.01 of the management agreement found that SSLMI is not responsible for “Facility Expenses” which include the costs incurred due to facility employees’ salary and wages, training programs, payroll taxes, bonus compensation, and other benefits. (HCP Laguna Creek CA, LP et al v. Sunrise Senior Living Management, Inc. (E.D. VA 2010) 737 F.Supp.2d 533, 544.) The court’s finding is directly the opposite of what SSLMI has claimed in the present matter, which is that SSLMI hired Mrs. Williams’s caregivers and was responsible for paying them, training them, etc. Plaintiffs are entitled to see the management agreement to determine who actually employed Mrs. Williams’s caregivers. Moreover, the published opinion reveals that the contents of the agreement are publicly available.

While a corporation may assert a right to privacy, corporations can claim no equality with individuals in the enjoyment of a right to privacy (Roberts v. Gulf Oil Corp. (1983) 147 Cal. App. 3d 770); such rights depend on the circumstances under which those rights are asserts. Id. at p. 770. The nature and purposes of the corporate entity and the nature of the interest sought to be protected will determine whether, under given circumstance, the corporation per se has a

protectable privacy interest. Two critical factors that are considered include 1) the strength of the nexus between the artificial entity and human beings and 2) the context in which the controversy arises. Id. at pp. 796-797. In any event, in the instant case, the Court has weighed the defendant’s interest in the confidentiality of the agreement with the plaintiff’s need for the discovery and finds that the plaintiff’s need outweighs any interest in confidentiality, subject to the entry of a protective order. It is appropriate for the Court to consider the protection afforded the holder of a trade secret by a protective order. (See, Bridgestone /Firestone, Inc. v. Superior Court (1992) 7 Cal.App.4th 1384, 1391-1393; see also, Davis v. Leal (E.D. CA 1999) 43 F.Supp.2d 1102, 1110 [Like most privileges, the trade secret privilege is not absolute, but requires a balancing of the need for protecting the secret with the needs of the case.].)

Request for Production No. 7 seeks “Any and all contracts between Sunrise Senior Living Management, Inc. and any parent or subsidiary corporation(s), holding companies, and business entities from 2010-2014.

The motion to compel is denied. This category is overbroad and plaintiffs have not explained why this breadth of information, which covers any conceivable contract between SSLMI and any related company as well as any “business entity” is relevant to plaintiff’s allegations of elder abuse.

Plaintiffs have not shown good cause to obtain all contracts between defendant and the designated entity types, which essentially seeks every contract entered into by legal entities other than individuals. The moving papers address only “this critical document,” referring to the management agreement. The Reply likewise focuses only on the management agreement sought in Request No. 6. The failure to address the need for “all contracts between Sunrise Senior Living Management, Inc. and any parent or subsidiary corporation(s), holding companies, and business entities” does

not meet plaintiff’s burden to show good cause for the production.

Request for Production No. 22 requests “Any and all documents which evidence the budget process for Sunrise Senior Living Management, Inc. assisted living communities, including Sunrise of Carmichael, from 2010-2014.

The motion to compel is denied. The Court sustains defendant’s objection based on vague, ambiguous with regard to “budget process,” as well as overbroad in scope as it seeks budget information for every assisted living community associated with SSLMI. To the extent the request is overbroad, it seeks documents that are not relevant to the action. The moving points and authorities address only “this critical

document” (referring to the management agreement). The Reply likewise focuses on the management agreement sought in Request No. 6. The failure to address the need for “any and all documents which evidence the budget process for Sunrise Senior Living Management, Inc. assisted living communities, including Sunrise of Carmichael” does not meet plaintiff’s burden to show good cause for the production.

The parties are directed to meet and confer on the terms of a general protective order that this management agreement may be used only for purposes of the litigation and that it be returned to counsel for defendant at the conclusion of the litigation.

Defendant is ordered to produce the documents responsive to Request for Production No. 6 within five days of the entry of the protective order.