Faddis, et al. vs Grandcare Inc, et al.

23CV006808: FADDIS, et al. vs GRANDCARE INC, et al. 09/10/2024 Hearing on Motion to Compel Further Discovery Responses to Requests for Production of Documents in Department 53

Tentative Ruling

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23CV006808: FADDIS, et al. vs GRANDCARE INC, et al. 09/10/2024 Hearing on Motion to Compel Further Discovery Responses to Requests for Production of Documents in Department 53

or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING:

Plaintiffs Patrick Faddis, et al.’s motion to compel further responses and production from Defendant Grandcare, Inc. is ruled upon as follows.

Plaintiffs’ unopposed request for judicial notice is granted for the limited purposes permissible for judicial notice.

In this elder abuse action, Plaintiffs assert a variety of claims arising out of the alleged assault of Patrick Faddis by defendant Doe 1, a resident of Defendant’s nursing facility. Plaintiffs allege Defendant failed to provide adequate staffing to keep Patrick Faddis safe, Defendant negligently admitted Patrick Faddis into its care knowing it was not equipped to provide proper care, and that Defendant was aware of defendant Doe 1’s history of aggressive behavior but ignored it. Plaintiffs allege Patrick Faddis was injured as a result of the attack which caused his health to decline significantly.

This is yet another discovery dispute in this action upon which the Court has been required to expend its limited judicial resources. At issue on the instant motion are Plaintiffs’ requests for production nos. 64, 72, 73, 78, 80-83, 91, 93, 96-98, and 113. Unfortunately, the moving papers and the opposition papers presented their arguments in a manner which made the Court’s analysis of the papers unnecessarily burdensome. The Court was essentially required to resort to lengthy separate statements in an attempt to discern the actual issue and whether there were any common issues that would streamline the analysis. The Court’s analysis therefore does not necessarily track the arguments set forth in the parties’ papers.

“On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling a further response 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. (3) An objection in the response is without merit or too general.” (CCP § 2031.310(a).) If a party responds to a demand for inspection “thereafter fails to permit inspection, copying, testing, or sampling in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance.” (CCP § 2031.320(a).)

Nos. 64, 78, 80-83, 91, 96 and 113

The motion is granted. As best the Court can tell from the moving papers, these requests, seek documents from 2022, “to the present” which Plaintiffs assert a relevant to show that the subject

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV006808: FADDIS, et al. vs GRANDCARE INC, et al. 09/10/2024 Hearing on Motion to Compel Further Discovery Responses to Requests for Production of Documents in Department 53

facility was understaffed and that Defendant ratified deficient care at the facility. Defendant appears to have responded to these requests by interposing numerous objections but subject to the objections agreeing to produce responsive documents from January 1, 2022, through March 2023.

Again, as best the Court can tell, Plaintiffs argue that the responses are deficient because they include boilerplate objections and also because Defendant inappropriately limited the date of production to March 2023, which was when Patrick Faddis was discharged. It also appears that Defendant has produced responsive documents through March 2023.

In opposition, Defendant, while arguing that the documents after Patrick Faddis was discharged are not relevant to ratification or understaffing, agrees that it will produce additional responsive documents from April 2023, through December 2023. Indeed, the Court found that this was an appropriate time period when it granted Plaintiff’s motion to compel as to different document requests on June 25, 2024. Given Defendant’s concession that it will produce these documents covering the time period through the end of 2023, the Court need not consider Defendant’s arguments that the documents after Patrick Faddis was discharged are not relevant to showing understaffing or ratification because the theories fail on the merits.

In any event, a discovery motion is not the place to argue the merits of Plaintiffs’ theories. The Court notes that the subject requests for production were served on January 15, 2024, and since the requests asked for documents “to the present” the Court finds that a time period through the end of 2023 is sufficient. Thus, Defendant must provide further responses agreeing to produce responsive documents through the end of 2023.

In addition, Plaintiffs also argued that the objections in the subject requests lacked merit. Defendant, however, made no attempt to justify any of its objections. As the party seeking to resist discovery based upon objections, it was Defendant’s burden to justify the objections. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255 [citing Coy v. Superior Court (1962) 58 Cal.2d 220-221].) Having failed to do so, Defendant must remove all objections from any further response.

To the extent that Plaintiff seeks an order compelling production of additional documents (e.g. documents after March 2023) that request is premature. This is true because Defendant has yet to serve a response agreeing to produce those documents. That request will be properly made in the event that Defendant serves the further responses agreeing to produce the additional documents and then fails to do so in accordance with its statement of compliance. (CCP § 2031.320(a).) These comments apply equally with respect to all the requests addressed in this motion.

Nos. 72 and 73

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV006808: FADDIS, et al. vs GRANDCARE INC, et al. 09/10/2024 Hearing on Motion to Compel Further Discovery Responses to Requests for Production of Documents in Department 53

The motion is granted.

These requests asked Defendant to produce all CMS 672 (Resident Census and Conditions of Residents) and CMS 802 forms for the years 2022 to present. Defendant interposed various objections and subject to the objections stated that after a diligent search and reasonable inquiry it was unable to comply because it does not have the documents. Defendant stated that the documents were in the possession, custody and control of the Department of Health and Human Services (“CDPH”), Centers for Medicare and Medicaid Services (“CMS”).

To the extent that the responses contain objections, those objections must be removed from a further response. As with the above requests Defendant made no attempt to justify its objections which Plaintiffs challenged.

Plaintiff argues that the substantive portion of the response is deficient because the documents were created by Defendant and submitted to the CMS and Defendant can obtain those documents.

In opposition, Defendant indicates that it submitted a Freedom of Information Act request to CMS and a Public Records Act request to CDPH. Defendant also indicated that CMS responded that the CMS 802 form is a public form and did not provide the documents to Defendant. Defendant, however, provides no evidence that this is the case as Defendant’s counsel’s declaration only contains information regarding the Public Records Act requested to the CDPH (Marseille Decl. ¶ 2, Exh. A.) Defendant also indicates that as of October 22, 2023, the CMS 672 form was replaced with a revised form which the CDPH provided to Defendant and which it will produce.

Defendant does not explain why it submitted a FOIA request of a Public Records Act request even though the documents requested are apparently documents that it submitted directly to the CMS and CDPH. The Court is unclear, and Defendant does not explain why it cannot directly request the documents that it submitted to the CMS and CPDH. Nevertheless, Defendant must provide a further response which reflects the additional inquiry made with the CMS and CDPH, in addition to information as to why it cannot obtain the documents other than through a FOIA or Public Records Act request, and also specifying the information that it is able to and not able to produce.

No. 93

The motion is granted. This request asked Defendant to produce all Minimum Data Set (“MDS”) data reports from 2022 to present. The request specifically called for redaction of any resident identifying information. Defendant interposed objections on the basis that the request was vague, ambiguous, overbroad, burdensome, not reasonably calculated to lead to the

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV006808: FADDIS, et al. vs GRANDCARE INC, et al. 09/10/2024 Hearing on Motion to Compel Further Discovery Responses to Requests for Production of Documents in Department 53

discovery of admissible evidence, violated the privacy rights of third parties and violated HIPAA and the California Medical Information Act.

The Court rejects any claim that the request is not reasonably calculated to leaed to the discovery of admissible evidence. In the discovery context, information is relevant “if it might reasonably assist a party in evaluating its case, preparing for trial, or facilitating a settlement. [citations omitted] Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence.” (Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1611-1612.)

Plaintiff argues that the MDS reports provide information about a resident’s conditions and acuity. Defendant’s opposition itself makes clear that the MDS reports are a “Resident specific assessment tool.” (Opp. 7:23-24.) Plaintiffs here are alleging that the subject facility was understaffed. Contrary to Defendant’s argument, these documents could lead to the discovery of admissible evidence even if the MDS reports itself does not contain staffing information. This is so because information regarding patient needs could lead to information regarding what appropriate staffing levels should be, and ultimately whether the facility was appropriately staffed with respect to Patrick Faddis himself.

This request easily meets the broad definition of relevance in the discovery context. Defendant’s arguments to the contrary relate to the merits of the theory itself and the evidence that Plaintiffs must show to prove their elder abuse claim.

The third party privacy concerns are easily addressed as the requests calls for redaction and Defendant can simply redact resident identifying information. This also renders the HIPAA concerns (and the claim premised on the Confidentiality of Medical Information Act) moot because HIPAA only precludes disclosure of patient identifying information. If the identifying information is redacted, there is no HIPAA concern. The Court would note that to the extent HIPAA might otherwise prevent Defendant from disclosing the names of individual residents, HIPAA permits such disclosures when they are made pursuant to court orders, and such disclosures may be made “without the written authorization of the individual” in question and “without the opportunity for the individual to agree or object.“ (See 45 C.F.R. § 164.512(e)(1)(i) (providing in part that “A covered entity may disclose protected health information in the course of any judicial or administrative proceeding: [¶] In response to an order of a court or administrative tribunal, provided that the covered entity discloses only the protected health information expressly authorized by such order.”) (emphasis added).)

Thus, Defendant may disclose identities if the Court were to order it to do so. This is also true under the Confidentiality of Medical Information Act. (Civ. Code § 56.10(b)(1).) But, here, the Court is ordering the documents produced with the resident identifying information redacted.

Defendant complains that protected information includes not just names, but social security numbers, phone numbers, and more which would take days, if not weeks to redact. Defendant provides no factual showing to support this claim. In fact, undue burden objections must be accompanied by a specific factual showing setting forth the amount of work necessary to respond

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV006808: FADDIS, et al. vs GRANDCARE INC, et al. 09/10/2024 Hearing on Motion to Compel Further Discovery Responses to Requests for Production of Documents in Department 53

to the subject discovery. (West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 417- 418.) No showing was made in this regard whatsoever. Thus, any burdensome objection is overruled.

The parties are free to meet and confer on a protective order with respect to the information covered by these requests.

Other than potentially addressing the relevance, privacy, and burden objections, Defendant made no attempt to justify any of its other objections and they are also overruled.

Defendant must provide a further response removing the objections and agreeing to produce the requested documents from 2022 through December 2023.

Nos. 97 and 98

The motion is granted. These requests asked for all income statements and balance sheers from 2022 to present. Defendant objected that the requests are overbroad, burdensome, harassing, and violates Civil Code § 3294.

Defendant’s objection premised on Civil Code § 3294 is inapplicable. Civil Code § 3295(c) provides that “[n]o pretrial discovery by the plaintiff shall be permitted with respect to the evidence referred to in paragraphs (1) [profits] and (2) [financial condition] of subdivision (a) unless the court enters an order permitting such discovery pursuant to this subdivision.” Defendant’s entire argument in opposition is premised on the contention that Plaintiff has no yet obtained an order under Civil Code § 3295(c) after establishing a substantial probability that they will prevail on a punitive damages claim.

However, Civil Code § 3295(b) provides that “nothing in this section shall prohibit the introduction of prima facie evidence to establish a case for damages pursuant to Section 3294.” In addition, this section is inapplicable where the information goes to the heart of Plaintiffs’ claims, for example, the claims alleging intentional under-staffing. (Rawnsley v. Superior Court (1986) 183 Cal.App.3d 86, 91.) Plaintiffs have alleged such a theory and such a theory can demonstrate recklessness under the Elder Abuse Act. (Fenimore v.

Regents of University of California (2016) 245 Cal.App.4th 1339, 1350.) Plaintiffs were not required to obtain an order under Civil Code § 3295(c) prior to pursuing this discovery. While Defendant questions how the income statements and balance sheets could show understaffing, those documents could certainly lead to the discovery of admissible evidence on that theory as the documents could show what financial resources were devoted to staffing.

Defendant also argues that Plaintiffs will not be able to show any alter-ego theory. The Court need not address that given the above.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV006808: FADDIS, et al. vs GRANDCARE INC, et al. 09/10/2024 Hearing on Motion to Compel Further Discovery Responses to Requests for Production of Documents in Department 53

Defendant failed to discuss any objections other than the one premised on Civil Code § 3295 in its opposition. As a result, all other objections are overruled and must be removed from any further response.

Defendant must provide a further response removing the objections and agreeing to produce the requested documents from 2022 through December 2023.

In short, the motion is granted as to request nos. 64, 72, 73, 78, 80-83, 91, 93, 96-98, and 113.

No later than October 10, 2024, Defendant shall serve further, verified responses to Plaintiff’s request for production nos. 64, 72, 73, 78, 80-83, 91, 93, 96-98, and 113 in accordance with the above.

No sanctions were requested by either side.

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