Amy Demaille et al vs Covenant Living West et al

Case Number

23CV03594

Case Type

Hearing Date / Time

Fri, 02/28/2025 - 10:00

Nature of Proceedings

CMC; Compel; OSC Sanctions

Tentative Ruling

For all reasons discussed herein, the motion of plaintiffs to compel further verified responses to requests for production, set two, from defendant Covenant Living West is denied without prejudice.

Background:

On November 6, 2023, plaintiffs Barbara Aspen (Barbara), by and through her successor in interest Amy Demaille (Demaille), Demaille, and Randal Aspen (Randal) (collectively, plaintiffs) filed in this action a first amended complaint (the FAC) against defendants Covenant Living West (CLW) and Covenant Living Communities & Services (CLCS) (collectively, the Covenant Defendants), alleging four causes of action: (1) negligence (by Barbara against CLW); (2) elder abuse and neglect (by Barbara against the Covenant Defendants); (3) violation of resident rights (by Barbara against CLW); and (4) wrongful death (by Demaille and Randal against the Covenant Defendants.) As alleged in the operative FAC:

CLW is engaged in the business of operating a Continuing Care Retirement Community (the CCRC), known collectively as Covenant Living at Samarkand. (FAC, ¶ 4.) The CCRC offers persons 60 years of age or older a long-term continuing care contract that provides for independent living units and skilled nursing care for the resident’s lifetime. (Id. at ¶ 5.)

In January 2018, Barbara and her husband entered into a long-term continuing care contract with the Covenant Defendants, and moved into independent living units (the Samarkand ILU) at Covenant Living at Samarkand located at 2550 Treasure Drive in Santa Barbara, California. (FAC, ¶¶ 5 & 31.) The Samarkand ILU is managed by CLW. (Id. at ¶ 5.) Though Barbara’s husband was living with dementia and dependent on Barbara, Barbara was mostly independent and able to walk around the Samarkand ILU property. (Id. at ¶ 31.)

On August 29 and September 2, 2022, Barbara suffered fall incidents at the Samarkand ILU, which caused Barbara to experience severe back pain. (FAC, ¶¶ 32-33.) Samarkand ILU failed to inform Barbara’s family or physician of the first incident, did not transfer Barbara to a higher level of care, and failed to arrange emergency medical care for Barbara after the second incident. (Ibid.)

On September 5, 2022, Barbara called Demaille, who is Barbara’s daughter, and described the falls and back pain, prompting Demaille to insist that Barbara receive medical attention. (FAC, ¶¶ 2 & 34.) Barbara was transported to the hospital where a CT scan revealed a new compression fracture of Barbara’s L1 vertebrate. (Id. at ¶ 35.) On September 8, 2022, Barbara transferred from Samarkand ILU to a Samarkand Skilled Nursing Facility (the Samarkand SNF), where she required ongoing nursing and custodial care, and assistance with daily living activities. (Id. at ¶ 35.) The Samarkand SNF is owned, operated, and managed by CLCS. (Id. at ¶ 13.)

The Samarkand SNF did not perform accurate assessments or create an accurate care plan for Barbara, as evidenced by inconsistencies between entries on a day-to-day basis in Barbara’s chart. (FAC, ¶ 38.) Upon Barbara’s admission on September 8, 2022, the staff of the Samarkand SNF prepared a baseline interim care plan that identifies Barbara as a “fall risk” but does not provide any individualized care plan interventions specific to Barbara’s risk profile. (Ibid.) That same day, the Samarkand SNF recorded Barbara’s fall risk as “low” despite knowing that she suffered two falls within the previous ten days and a vertebrate fracture. An admission evaluation performed by the Samarkand SNF and recorded on September 9, 2022, stated that Barbara needed “limited” or “partial” assistance with transfers and mobility. (Ibid.)

On September 10, October 12, and October 25, 2022, Barbara suffered fall incidents at the Samarkand SNF. (FAC, ¶¶ 39-41.) The Samarkand SNF failed to inform Demaille of these incidents, failed to reassess Barbara or the efficacy of her care plan, recorded contradictory findings regarding Barbara’s functional abilities and need for assistance with various activities, failed to provide new or different interventions, and inaccurately documented Barbara’s fall risk, among other things. (Ibid.)

On November 22, 2022, Barbara again fell and hit her head while transferring from her wheelchair to her bed, causing a bloody laceration, and was dropped by a Certified Nursing Assistant, which also caused Barbara to hit her head. (FAC, ¶¶ 42-43.) One or both of these incidents caused a subdural hematoma. (Id. at ¶ 43.) Though Demaille was advised of the second fall, Samarkand SNF’s administrator, Scott Bigler, attempted to confuse Barbara and to convince her to deny having been dropped by Samarkand SNF staff and report that she had fallen on her own. (Ibid.)

The Covenant Defendants also failed to provide for Barbara’s nutritional needs and to adequately monitor and support Barbara’s intake of food and fluids, causing Barbara to lose more than thirty pounds and suffer severe protein-calorie malnutrition. (FAC, ¶ 44.) Barbara was unable to recover from her fall-related injuries, malnourishment, and resulting functional decline, and passed away on December 25, 2022. (Ibid.)

On December 1, 2023, the Covenant Defendants answered the FAC, generally denying its allegations and asserting twenty-four affirmative defenses.

On November 20, 2024, plaintiffs filed a motion for an order compelling CLW to serve further responses to plaintiffs’ set two requests for production of documents (the RPD), nos. 86 through 88, 91, and 92. In support of the motion, plaintiffs submit the declaration of their counsel, Stephanie A. Johnson (Johnson), who states that on June 28, 2024, plaintiffs served the RPD on CLW. (Johnson Decl., ¶ 2; Notice of Lodgment, Exh. A.) On August 20, 2024, CLW served “objection-only” responses to the RPD. (Id. at ¶ 3; Notice of Lodgment, Exh. B.)

On October 1, 2024, Johnson sent a letter to counsel for the Covenant Defendants, outlining deficiencies in CLW’s responses to the RPD and requesting further responses and documents. (Johnson Decl., ¶ 4; Notice of Lodgment, Exh. C.) Counsel for the Covenant Defendants responded by letter dated October 28, 2024, stating that CLW intended to stand by its original objections, and would not produce the files requested in the RPD. (Id. at ¶ 5; Notice of Lodgment, Exh. D.) Though counsel for the parties continued their efforts to resolve the dispute informally, the parties reached an impasse. (Id. at ¶ 6; Notice of Lodgment, Exh. E.)

In support of its opposition to the motion, CLW submits the declaration of its counsel, Hugh Spackman (Spackman). Spackman sets forth facts regarding Barbara’s residence and care at what Spackman refers to as “the Samarkand” (which the Court understands to refer to either or both the Samarkand ILU and Samarkand SNF), and the falls sustained by Barbara while residing at the Samarkand, which Spackman contends were revealed during discovery. (Spackman Decl., ¶¶ 2-3.)

Spackman asserts that, in the RPD, plaintiffs seek unlimited access to the personnel files of Pam Bigelow (Bigelow), Marilyn Campbell (Campbell), Scott Bigler (Bigler), Julissa Cruz (Cruz), and June Davila (Davila), without providing any explanation as to why these employees are “unfit” for employment or how these employees “fit into the overall picture”, and without limitation as to time or date. (Spackman Decl., ¶ 4.)

Spackman further asserts that Bigler did not provide care, or oversee care provided, to Barbara at the Samarkand. (Spackman Decl., ¶ 4.) Bigelow also did not provide care, or manage care provided, to Barbara or witness any of Barbara’s falls. (Ibid.) Spackman also states that though Campbell responded to the August 2022 incident when Barbara fell in her apartment building and contacted Barbara’s physician to obtain appropriate orders when Barbara later reported pain, Campbell did not provide care or oversee care provided to Barbara during Barbara’s stay at the Samarkand SNF. (Ibid.) Spackman also states that Cruz provided care to Barbara between September and December 2022. (Ibid.) According to Spackman, though Davila was the Wellness Clinic nurse manager at the Samarkand in April 2022 when Barbara asked for exercises to improve her balance after suffering a fall off campus, Davila did not witness any of Barbara’s falls and did not provide care to Barbara at the Samarkand SNF. (Ibid.)

Spackman contends that the Covenant Defendants have produced in discovery “thousands” of documents which include Barbara’s medical records, a list of the officers and directors of the Covenant Defendants, employee job descriptions and time sheets, “new hire orientation” paperwork, employee training records, documents identifying employees who worked at the facility while Barbara was a patient, and “acuity and NHPPD documentation” which show daily nurse-patient staffing ratios. (Spackman Decl., ¶ 5.) Though Spackman’s office has attempted to meet and confer with plaintiffs’ counsel regarding the scope of an appropriate protective order concerning documents produced in discovery, plaintiffs rejected a protective order proposed by the Covenant Defendants, and have not proposed their own protective order. (Id. at ¶ 6.) Spackman requests, to the extent the Court grants the present motion, that the Court issue an appropriate protective order to protect employee records. (Ibid.)

In their reply, plaintiffs state that, “[i]n light of the procedural posture of this case, and in a good faith effort to narrow [p]laintiffs’ scope,” plaintiffs withdraw the motion as to RPD nos. 86 and 88. (Reply at p. 1, ll. 5-8.)

Analysis:

A motion to compel further responses to an inspection demand must “set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc. §2031.310, subd. (b)(1).) “[U]nless there is a legitimate privilege issue or claim of attorney work product, [the] burden [of showing good cause] is met simply by a fact-specific showing of relevance.” (TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 448.)

Based on information appearing in the reply of plaintiffs as further described above, the only requests presently at issue are RPD nos. 87, 91, and 92. There exist procedural problems with the present motion which justify its denial.

California Rules of Court, rule 3.1345, requires the motion to be accompanied by a separate statement. (Cal. Rules of Court, rule 3.1345(a)(3) & (5).) (Note: Undesignated rule references shall be to the California Rules of Court unless otherwise indicated.) “The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response[,]” and must include, if necessary, “the text of all definitions, instructions, and other matters required to understand each discovery request and the responses to it[.]” (Cal. Rules of Court, rule 3.1345(c)(4).)

RPD nos. 87, 91, and 92 seek the production of the “personnel file” of, respectively, Campbell, Cruz, and Bigler. (Sep. Stmt. at pp. 8, 9, & 10.) Wholly absent from the separate statement as to RPD nos. 87, 91, and 92 is the text of the definition of the term “personnel file”, which is capitalized in these RPD. Plaintiffs’ failure to include the definition of “personnel file” in the separate statement improperly forces the Court to review other documents to determine each full request, in violation of rule 3.1345(c). Moreover, because the separate statement is not full and complete with respect to the definition of “personnel file”, the Court is also unable to determine whether good cause exists for each request.

In addition, to show that good cause exists for the requests stated in RPD nos. 87, 91, and 92, plaintiffs “incorporate by reference the ‘Reason a Further Response Should be Compelled re Request for Production No. 86’….” (Sep. Stmt. at p. 8, 10, & 11.) In RPD no. 86, which plaintiffs have withdrawn from consideration, plaintiffs seek the production of Bigelow’s personnel file. Information appearing in the separate statement demonstrates that Bigelow’s title is different from the job titles of Campbell, Cruz, and Bigler.

For example, plaintiffs contend that Bigelow was the “Assisted Living Sales Director” who assisted with Barbara’s admission to the Samarkand ILU, provided tours of different sectors of housing, and explained the services provided. (Sep. Stmt. at p. 2.) Information appearing in the separate statement shows that Campbell is the “Wellness Clinical Nurse” who found Barbara after she fell on August 30, 2022, and assisted Barbara back to her room. (Id. at p. 8.) Cruz was a “Clinical Nurse Manager” who assessed and provided direct care to Barbara during her residency at the “Samarkand”. (Id. at p. 9.) Bigler was the Administrator of CLW during Barbara’s stay who “is responsible for the operation of the skilled nursing facility of [CLW] known as the Smith Health Center.” (Id. at p. 10.)

For all reasons discussed above, available information and evidence shows or suggests that each of the individuals identified in the RPD at issue were employed in what appear to be qualitatively different positions at the time the care at issue was provided to Barbara, and that some of these individuals did not provide any care to Barbara at the Samarkand SNF. (See, e.g., Opp. at p. 7.) Available information and evidence also indicates that Bigelow did not witness the falls alleged in the FAC and is not an officer, director, or managing agent of the Covenant Defendants. (Id. at p. 6.) It appears to the Court that plaintiffs withdrew the motion as to RPD no. 86 ostensibly based on the information provided by the Covenant Defendants in their opposition to the motion. Considering the circumstances present here, plaintiffs have failed to explain why the reasons to compel a further response or production as to RPD no. 86, which relates only to the personnel file of Bigelow, are also relevant to the substantively different requests stated in RPD nos. 87, 91, or 92.

“Material must not be incorporated into the separate statement by reference.” (Cal. Rules of Court, rule 3.1345(c).) By incorporating material relevant only to one particular employee with a distinctly different job title and ostensibly different job duties into their statement of reasons for compelling further responses to RPD nos. 87, 91, and 92, plaintiffs have failed to provide an adequate statement of the “factual and legal” reasons for compelling further responses or production “as to each matter in dispute[.]” (Cal. Rules of Court, rule 3.1345(c)(3).) Furthermore, in the absence of specific facts relating to the material sought to be produced with respect to each employee identified in RPD nos. 87, 91, and 92, the justifications offered by plaintiffs “are mere generalities” and wholly insufficient to demonstrate good cause for the requests stated in these RPD. (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224.)

There also exist substantive deficiencies as to the requests stated in RPD nos. 87, 91, and 92. Though not required to do so, the Court has reviewed the definition of “personnel” contained within the RPD, which is defined to include “employee applications; background check; reference checks; records of orientation and training; signing off on SAMARKAND ILU and SAMARKAND SNF’s policies and procedures and/or employee handbook; confirmation of employment dates, resumes, letters, recommendations, or any disciplinary action; any record of discipline, retraining and/or termination related to this case and/or similar types of cases or events[,]” and to exclude the employee’s “Social Security number; wage, salary, and tax information, and any other compensation; medical records and health care information; and identity and contact information of family members.” (Notice of Lodgment, Exh. A at p. 2.)

Based on the reasons advanced by plaintiffs for compelling a further response or production to RPD no. 86, plaintiffs contend that they require the personnel files of Campbell, Cruz, and Bigler because these files are relevant to the hiring and training practices of, and disciplinary actions taken by, CLW with respect to its employees, which plaintiffs assert are relevant to their claim for punitive damages. Plaintiffs further contend that, because they must show that CLW authorized or ratified any wrongful conduct by its employees to support their claim for punitive damages, there exists good cause for the requests stated in RPD nos. 87, 91, and 92. (Sep. Stmt. at pp. 1-2.)

In the FAC, plaintiffs allege that CLW is a corporation. (FAC, ¶ 4.) To the extent plaintiffs seek an award of exemplary damages against CLW under Civil Code section 3294 based on the acts of its employees, plaintiffs must show that CLW “had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded.” (Civ. Code, § 3294, subd. (b).) Plaintiffs fail to explain why letters of recommendation, resumes, the employee handbook of Samarkand ILU or Samarkand SNF, or documents evidencing the orientation of an employee or dates of employment would show any act of oppression, fraud, or malice by Campbell, Cruz, or Bigler. Plaintiffs also fail to explain, with reasoned argument, why each of the records included within the definition of “personnel file” would demonstrate CLW’s advance knowledge, conscious disregard, authorization, or ratification of any wrongful conduct by Campbell, Cruz, or Bigler, that CLW employed these persons with knowledge of their unfitness and a conscious disregard for Barbara’s rights or safety.

The examples provided above are intended to be illustrative but not exhaustive. For all reasons discussed above, the requests stated in RPD nos. 87, 91, 92, include materials that do not appear to pertain to the issues raised by plaintiffs or the elements of plaintiffs’ claim for punitive damages. (See, e.g., Code Civ. Proc., § 2017.010 [describing the scope of discovery].) Therefore, the scope of RPD nos. 87, 91, and 92, is potentially unlimited and not entirely relevant to plaintiffs’ claim for punitive damages.

In addition, considering the potentially unlimited scope of the requests stated in RPD nos. 87, 91, and 92 and notwithstanding the stated exclusions to the definition of “personnel file”, there exists some question as to whether or not Campbell, Cruz, and Bigler have a legally protected reasonable expectation of privacy in the information sought in these requests. (See Belaire-West Landscape, Inc. v. Superior Court (2007) 149 Cal.App.4th 554, 561 [recognizing a reasonable expectation of privacy in employee information].)

In addition, though plaintiffs are not required to comply with the notice provisions set forth in Code of Civil Procedure section 1985.6, subdivision (e), available information and evidence also suggests that CLW is or may be willing to produce the personnel files of Campbell, Cruz, and Bigler subject to a protective order. A general protective order for the purpose of protecting employee privacy rights and facilitating the production of documents sought by plaintiffs appears appropriate under the circumstances present here. (Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 106-107 [general discussion]; Stadish v. Superior Court (1999) 71 Cal.App.4th 1130, 1145.) Considering the privacy rights which may be implicated by the production of the personnel files at issue, that plaintiffs do not appear to dispute that a protective order would be appropriate with respect to the requests stated in RPD nos. 87, 91, and 92, and that plaintiffs have not proposed an appropriate protective order to facilitate the production of the personnel files, the requests stated in RPD nos. 87, 91, and 92 do not appear to be limited to the least intrusive means necessary to obtain the information required by plaintiffs. (Perez v. County of Santa Clara (2003) 111 Cal.App.4th 671, 678-679, disapproved on another ground in Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 103-104.)

The procedural deficiencies further discussed above constitute a sufficient basis on which the Court may deny the motion. (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893.) Because plaintiffs have failed to comply with the requirements of California Rules of Court, rule 3.1345, and for all additional substantive reasons further discussed above, the Court is unable to determine whether and to what extent there exists good cause for the production of the personnel files described in RPD nos. 87, 91, and 92, or to what extent the motion is meritorious. The Court will therefore exercise its discretion to deny the motion. (Neary v. Regents of University of California (1986) 185 Cal.App.3d 1136, 1145 [discussing plaintiff’s failure to adequately support a motion to compel discovery due to a nonconforming separate statement].)

The Court’s denial of the present motion is without prejudice to any appropriate future motion that may be brought by plaintiffs with respect to the personnel files at issue to the extent plaintiffs appropriately narrow the scope of their requests, provided the parties meet and confer fully and in good faith to resolve any dispute including with respect to the terms of an appropriate protective order.