2011-00095046-CU-PO

Sean Suh vs. Sunrise Lodge, LLC

Nature of Proceeding: Motion to Compel Form Interrogatories

Filed By: York, Wendy C.

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

The Court is not considering the evidence referred to at paragraph 10 of Wendy
York’s declaration.

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’ offense against decedent took place over three years ago, and therefore the
statute of limitations under Penal Code section 801 (three years from the commission
of the offense) has expired. Cardenas already pled guilty to two instances of “rough
handling.” There is no reasonable cause to apprehend danger from any particular
question given these circumstances. See 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. . . .”] Further, Cardenas makes no evidentiary showing of exposure to further criminal prosecution; 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.)

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.

In opposition, defendant contends that the claim that Kyong Hui Duncan was given a
fatal dose of medication that was not prescribed to her was not the subject of the
prosecution of Cardenas, She was only prosecuted of two instances of “rough
handling.” However, in any event, prosecution of other crimes would have had to
have commenced no later than April 2013. Moreover, 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 of the offenses. There is no evidence
other than speculation that Cardenas is subject to further prosecution. As previously
stated, 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.) Defendant’s position
effectively would result in a permanent stay of this action and prevent the action from
going forward.

Further Responses are to be served, without objections, on or before October 25,
2013.

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.