2015-00185641-CU-PO

Rebecca Hammons vs. Sunrise of Carmichael

Nature of Proceeding: Motion to Compel Prod.Documents (Re: Corporate Compliance Officer)

Filed By: York, Wendy C.

Motion to Compel Production of Documents set forth in the notice of deposition of the PMK re Corporate Compliance Officer is granted.

In the Second Amended Complaint, plaintiffs allege causes of action for negligence, dependent adult abuse/neglect, intentional misrepresentation, negligent misrepresentation, unfair business practices, financial elder abuse, and wrongful death. Plaintiff filed a motion to compel deposition of two PMKS. This ruling concerns the documents requests in the deposition notice for the PMK re “Corporate Compliance Officer.” The ruling on the companion to compel the PMK depositions, on this calendar this date, is incorporated herein.

The document request accompanying the PMK deposition notice concerning

Corporate Compliance contains eight categories of documents:

1. Any and all documents that describe the duties and responsibilities of the Corporate Compliance Officer of SSLMI for the years 2010-2014
2. Any and all documents related to policies and procedures and/or manuals on the topic of corporate compliance for SSLMI for the years 2010-2014.
3. Any and all documents related to instructions regarding making calls to the Corporate Compliance Hotline of SSLMI from 2010-2014.

4. Any and all documents related to protocols regarding the intake of calls related to corporate compliance involving SSLMI or its assisted living facilities for 2010-2014.
5. Any and all documents related to logs of telephone calls received regarding any corporate compliance issue from 2010-2014.
6. Any and all documents or reports that include recommendations made by the

Corporate Compliance Officer for SSLMI for 2010-2014.

7. Any and all documents related to trainings created, held and/or provided by the Corporate Compliance Officer for SSLMI for 2010-2014.
8. The business card(s) of Defendant SSLMI’s Corporate Compliance Officer for 2010-2014.

Defendants’ objections based on attorney client privilege are overruled. Under California law, the party asserting the attorney-client privilege, in response to a discovery request, bears the initial burden of demonstrating that the communication falls within the privilege. (Bible v. Rio Properties, Inc. (2007 CD. Cal.) 246 F.R.D. 614; D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723.) Defendant has not made a showing to support the privilege. The fact that their corporate compliance officer may be an attorney is not sufficient. Defendant is required to show that producing a PMK witness implicates confidential communications between a client and a lawyer. Plaintiffs’ PMK categories and document requests seek information about compliance officer’s job duties; the policies and procedures the compliance officer follows; the protocols for intake of complaints; the training conducted by the officer and similar categories. These categories do not appear to implicate confidential communications between a client and attorney.

Defendant’s objection that the document requests are overbroad in time is overruled. Information from the year 2014 may lead to admissible evidence even though Ms Williams passed away in 2013. It is not necessarily true that any ratification of wrongful conduct must have occurred before Ms. Williams passed away, as defendant contends.

The objection based on privacy rights of the Corporate Compliance officer is overruled. This objection is based on the on the contention that no Corporate Compliance Officer has any personal knowledge of facts related to this case, therefore plaintiff’s attempt to obtain testimony from such person invades their privacy rights. However, as noted in the ruling re the deposition, the plaintiff is compelling the deposition of a PMK on certain topics and therefore as a matter of law is seeking the person with personal knowledge of the topics, and not an apex employee with no personal knowledge.

The objection based on irrelevance is overruled. The irrelevance objection is based on the contention that no Corporate Compliance Officer has any personal knowledge of facts related to this case, has any involvement in provision of care at any SSLMI community, or has any involvement in staffing any SSLMI community. However, these issues are not the topics of the PMK deposition. SSLMI has not established that the categories in the deposition notice seek irrelevant information. Plaintiffs contend that corporate compliance issues are relevant. For example, if employees complained about being overworked and/or needing more staff, such complaints establish notice of an issue of under-staffing. Complaints and/or concerns made to a company hot-line is relevant to notice issues, recklessness and/or willfulness issues and ratification issues in this case. For discovery purposes, information is “relevant to the subject matter” if it might

reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.) Furthermore, the “relevance to the subject matter” and “reasonably calculated to lead to discovery of admissible evidence” standards are applied liberally. Any doubt is generally resolved in favor of permitting discovery. (Colonial Life & Acc. Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790.) Moreover, the test for admissibility is

whether the request seeks information that might reasonably lead to other evidence that would be admissible at trial, (Davies v. Sup. Ct. (State of California) (1984) 36 Cal.3d 291, 201,) “When disputed facts provide a basis for the exercise of discretion, those facts should be liberally construed in favor of discovery.” (Zellerino v. Brown (1991) 235 Cal.App.3d 1097,1108-09.)

The Court overrules the objection based on failure to meet and confer. The Court disagrees that plaintiffs’ counsel failed to adequately meet and confer on the “apex employee” issue. The meet and confer letter reflects plaintiff’s insistence that the objection was improper because plaintiff was not seeking an apex employee to depose but rather a PMK on relevant topics.

The documents shall be produced in conjunction with the PMK depositions that are to be scheduled on the issues of corporate compliance.

Sanctions are denied.