Peter Rasmussen, by and through his successor-in-interest vs. ALHL, LLC

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with

34-2022-00329739-CU-MC-GDS: Peter Rasmussen, by and through his successor-in- interest vs. ALHL, LLC, a limited liability 06/18/2024 Hearing on Motion to Compel Further Discovery Responses to Request for Production of Documents in Department 53

a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing 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.

*** If oral argument is requested, the parties must at the time oral argument is requested notify the clerk and the opposing party of the specific requests for production that will be addressed at the hearing. The parties are also reminded that pursuant to local rules, only limited oral argument is permitted on law and motion matters. ***

The notice of motion does not include an address for the Court. The address for Department 53 of the Sacramento Superior Court is 813 6th Street, Sacramento, California 95814.

TENTATIVE RULING:

Plaintiffs Peter Rasmussen, by and through his successor-in-interest Ryan Rasmussen, and Ryan Rasmussen, in his individual capacity’s (“Plaintiffs”) motion to compel Defendant ALHL, LLC, dba Lodi Nursing & Rehabilitation (“Defendant”) is ruled upon as follows.

Background

This action arises out of Peter Rasmussen’s (“Decedent”) stay at Defendant’s skilled nursing facility. Plaintiffs bring causes of action for elder abuse, negligent infliction of emotional distress, violations of the Patients’ bill of rights, and wrongful death.

In pertinent part, Plaintiffs served Defendant with requests for production of documents, set one on October 5, 2023. (Declaration of Margot Cutter (“Cutter Decl.”) ¶2, Exh. A.) Plaintiffs provided Defendant with multiple extensions to respond to these requests. (Cutter Decl. ¶3, Exh. B.) Defendant provided written responses on December 11, 2023 and verifications on December 26, 2023. (Cutter Decl. ¶4, Exh.C.) On February 2, 2024, Plaintiffs sent a meet-and-confer letter to Defendant regarding the responses. (Cutter Decl. ¶5, Exh. D.) Plaintiffs’ letter requests a response by February 9, 2024 on whether Plaintiffs will need to file a motion to compel. (Exh. D, p. 2.) Defendant responded to the meet-and-confer letter on February 14, 2024. (Cutter Decl. ¶6, Exh. E.) Plaintiffs filed the instant motion on February 21, 2024. Defendant opposed.

The Court previously continued this matter for Plaintiffs to provide evidence of a written agreement to extend the deadline for Plaintiffs’ motion, as a motion to compel must be brought within 45 days of service of the verified response or by a later date agreed to in writing. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410; see also Vidal Sassoon, Inc. v. Superior Court (1983) 147 Cal.App.3d 681, 685.) This deadline is jurisdictional and a court must deny an

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00329739-CU-MC-GDS: Peter Rasmussen, by and through his successor-in- interest vs. ALHL, LLC, a limited liability 06/18/2024 Hearing on Motion to Compel Further Discovery Responses to Request for Production of Documents in Department 53

untimely brought motion. (Ibid.) On June 6, 2024, Plaintiffs’ counsel filed a supplemental declaration with documentation consisting of an email from Plaintiffs’ counsel to Defendants’ counsel indicating that “2/21 [is the] last day for Plaintiff to ser[v]e motion to compel RFPD 1.” (Supplemental Declaration of Margo Cutter (“Suppl. Decl. Cutter.”) ¶2, Exh. F.) The Supplemental Declaration indicates that the email “memorialized an agreement to extend Plaintiffs’ deadline to move to compel the production at issue.” (Supp. Decl. Cutter ¶2.) Given this new evidence, the Court is satisfied that it has jurisdiction to consider the instant motion.

Legal Standard

“[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc. § 2017.010.) “In the absence of contrary court order, a civil litigant’s right to discovery is broad...[and] statutes governing discovery ‘must be construed liberally in favor of disclosure unless the request is clearly improper by virtue of well-established causes for denial.’ [Citation.]” (Williams v.

Superior Court (2017) 3 Cal.5th 531, 541; see also Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 378 [“disclosure is a matter of right unless statutory or public policy considerations clearly prohibit it”].) Nevertheless, while civil discovery is broad, it is not limitless. (Board of Registered Nursing v. Superior Court (2021) 59 Cal.App.5th 1011, 1039 [citing Calcor Space Facility v. Superior Court (1997) 53 Cal.App.4th 216, 223].) It cannot be based on pure speculation. (Digital Music News LLC v.

Superior Court (2014) 226 Cal.App.4th 216, 227.)

The party seeking to resist discovery based upon objections has the burden to justify its objections. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255 [citing Coy v. Superior Court (1962) 58 Cal.2d 220-221].) 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 [emphasis in original].) “Any doubts regarding relevance are generally resolved in favor of allowing the discovery.” (Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 98.)

“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.” (Code Civ. Proc. § 2031.310, subd. (a).)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00329739-CU-MC-GDS: Peter Rasmussen, by and through his successor-in- interest vs. ALHL, LLC, a limited liability 06/18/2024 Hearing on Motion to Compel Further Discovery Responses to Request for Production of Documents in Department 53

For requests for production, the burden is on the moving party to show both relevance to the subject matter and specific facts justifying discovery. (Glenfed Develop. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117; Code Civ. Proc. § 2031.310 [requiring a showing of good cause for production of documents].) Once good cause is established by the moving party, the burden then shifts to the responding party to justify any objections made to document disclosure. (See Hartbrodt v. Burke (1996) 42 Cal.App.4th 168, 172-174.)

Discussion

At the outset, the Court notes that Plaintiffs failed to provide proper notice of motion in conformity with Code of Civil Procedure section 1010 and California Rules of Court, rule 3.1110. The notice of motion fails to indicate which requests Plaintiffs seek further responses or the basis of such request. Nevertheless, Defendant did not object to any defects in notice. (See Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930 [“It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of the motion]; see also Reedy v.

Bussell (2007) 148 Cal.App.4th 1272 [“if the party appears at the appropriate hearing and opposes the motion on the merits – but without making any request for a continuance or demonstrating prejudice from the defective notice, the issue is waived”].) Thus, Defendant waives any defects in the notice of motion.

The memorandum of points and authorities indicates that Plaintiffs’ motion seeks to compel further responses to its request for document as to the following:

(1) a complete copy of Decedent’s electronic health records (“EHR”) in native, PDF, and electronically readable formats (RPD nos. 66-68); (2) documents related to Defendant’s use of EHR (RPD nos. 69-73); (3) documents evidencing changes, deletions, and access to Decedent’s EHR (RPD nos. 74-78, 80); and (4) documents evidencing the identities and job responsibilities of the individuals who provided IT services to Defendant. (RPD nos. 79, 81-82.)

Defendant opposes, arguing that Plaintiffs’ motion is procedurally defective and misleading because the separate statement claims Defendant failed to provide responses when it in fact did. Defendant further argues that the motion is moot as to RPD nos. 66-71 and 75-81 as Defendant provided Code-compliant and complete responses on December 11, 2023 and provided verifications to those responses on December 26, 2023. Defendant further argues that its objections to RPD nos. 72-74 and 82 are appropriate.

Defendant is correct that Plaintiffs’ motion fails to comply with California Rules of Court, rule

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00329739-CU-MC-GDS: Peter Rasmussen, by and through his successor-in- interest vs. ALHL, LLC, a limited liability 06/18/2024 Hearing on Motion to Compel Further Discovery Responses to Request for Production of Documents in Department 53

3.1345. A separate statement is required for motions to compel further response to a demand for inspection of documents. (CRC, Rule 3.1345, subd. (a)(4).) “The separate statement must be full and complete so that no person is required to review any other documents in order to determine the full request and the full response,” and include, inter alia, the “text of each response, answer, or objection, and any further responses or answers.” (CRC, Rule 3.1345, subd. (c) [emphasis added].) In its discretion, a trial court may deny a motion to compel based on this procedural basis, even if the full text of the requests and responses can be found elsewhere in the papers. (See Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893.)

Plaintiffs’ counsel is admonished for failing to comply with Rule 3.1345. Nevertheless, in its discretion, the Court shall consider Plaintiffs’ motion as Plaintiffs’ compendium of evidence contained the full and complete requests and responses.

In addition, the Court rejects Defendant’s argument that its responses “mooted” Plaintiffs’ motion to compel further responses to RPD nos. 66-71 and 75-81. Even if Defendant otherwise provided Code-compliant responses to these requests, Defendant did so “without waiving said objections, and subject to them.” (See e.g., Plaintiffs’ Exh. C at 39:3-5; Exh. C at pp. 39-49 [responding to interrogatories without waiving and subject to all objections]; see also Opp. 3:13- 4:26.) Should the Court overrule any of the objections Defendant interposed, Defendant would be required to provide further responses without these objections. Plaintiffs’ motion is not “moot” given Defendant’s reliance on its objections in responding to the discovery requests.

Request for Production Nos. 66-68

The Court finds good cause for the documents requested in this first category of documents. Decedent’s EHR is relevant to Plaintiffs’ complaint for elder abuse and wrongful death. Moreover, Decedent’s personal representative is entitled to the Decedent’s medical records.

Defendant did not justify any of its objections to these requests. They are therefore overruled. The Court notes that Decedent, through his successor-in-interest, is requesting his own medical records, and as such there is no privacy concern regarding Decedent obtaining his own records. Defendant has not provided justification for any other person’s privacy concerns related to Decedent’s medical records. Neither are the provisions of the Evidence Code cited by Defendant applicable here, as evidence need not be admissible to be discoverable and Plaintiffs do not seek records of any organized medical committees. To the extent that Defendant insists Decedent’s medical records contain privileged attorney-client communication or attorney work product, Defendant must produce a privilege log.

Accordingly, Plaintiffs’ motion to compel further responses to the aforementioned RPDs is GRANTED.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00329739-CU-MC-GDS: Peter Rasmussen, by and through his successor-in- interest vs. ALHL, LLC, a limited liability 06/18/2024 Hearing on Motion to Compel Further Discovery Responses to Request for Production of Documents in Department 53

Request for Production Nos. 69-71

The Court finds good cause for the documents requested as to RPD nos. 69-71. These requests seek information related to procedures and training regarding the maintenance of Decedent’s EHR. These are relevant to the accuracy and reliability of the EHR being requested. Again, as Defendant did not justify any of its objections to these requests, they are overruled.

Plaintiffs’ motion to compel further responses to these RPDs is GRANTED.

Request for Production 74-78 and 80

The Court finds good cause for the documents requested as to RPD nos. 74-78, 80. These requests seek information related to changes and access to Decedent’s EHR. These changes are relevant to Defendant’s knowledge of Decedent’s medical conditions and the actions of Defendant’s employees in their interaction with Decedent.

Defendant contends that the request is “poor[ly] phrase[d]” and “overly broad” and may contain documents “gathered in anticipation of litigation, attorney client privileged information, attorney work product, and expert opinion,” as well as documents exempt from discovery subject to Evidence Code section 1157. Defendant’s response to RPD no. 74 is an objection only response while the remaining responses include a substantive answer subject to the objections asserted.

Defendant’s objection as to relevance are overruled as in determining good cause, the Court has already concluded that the requests are relevant. The overbroad objection is also overruled. While Plaintiffs’ do not provide a time period for its requests, the Complaint indicates that Defendant “had care or custody over [Decedent] from December 31, 2019 to November 9, 2020.” (Compl. ¶27.) The Court does not consider documents ranging from December 31, 2019 to the present to be “hopelessly overbroad.” The Court expressly limits the request to this time period.

As previously noted, Decedent, through is personal representative, is requesting his own medical records, and as such there is no privacy concern regarding Decedent obtaining his own records. Defendant has not substantiated any other person’s privacy concerns. The Court overrules Defendant’s objection to RPD no. 74 under Evidence Code section 1157. Defendant has not substantiated this objection in that it remains unclear how section 1157 would protect “all records of any change or deletion of any electronically stored medical information regarding plaintiff.” That is, if Defendant has, in fact, changed or deleted medical information regarding plaintiff, Defendant offers no discernible way that such evidence can be shielded behind section 1157.

If Defendant insists certain responsive documents contain privileged attorney-client communication or attorney work product, Defendant must produce a privilege log. Defendant does not justify any of the remaining objections. They are therefore overruled.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00329739-CU-MC-GDS: Peter Rasmussen, by and through his successor-in- interest vs. ALHL, LLC, a limited liability 06/18/2024 Hearing on Motion to Compel Further Discovery Responses to Request for Production of Documents in Department 53

Plaintiffs’ motion to compel further responses to these RPDs is GRANTED, subject to the time limitation noted above and the Court’s sustaining of documents subject to Evidence Code section 1157.

Request for Production Nos. 72-73, 79 and 81-82

The Court does not find good cause for production of the documents requested in RPD nos. 72- 73, 79, and 81-82. These request all agreements and contracts between Defendant and any third party regarding the purchase, use, and maintenance of the software used to create or maintain Plaintiffs’ EHR. They also request all Electronically Stored Information (“ESI”), emails, memorandum and any other communication that refers to Plaintiff; all job descriptions of individuals who provided Information Technology services from the date Decedent was admitted to Defendant’s skilled nursing facility; and all contracts between Defendant and any individual providing Information Technology services.

Plaintiffs have not adequately explained why these third-party contracts are relevant to their causes of action or provided any specific facts justifying their production. The requests are facially overbroad and appear tangentially, if at all, related to the facts alleged in the Complaint.

Plaintiffs’ motion to compel further responses to these RPDs is DENIED. The Court notes that this denial is without prejudice to Plaintiffs propounding more narrowly tailored requests sufficiently related to their claims.

Motion Seeking Production of Documents

To the extent Plaintiffs seek to compel Defendant to produce documents through this same motion, the Court finds that the motion is premature as Defendant has not yet provided a complete statement that responsive documents exist and will be produced. Given that the Court has now ruled upon Defendant’s objections, Defendant must first provide supplemental responses in light of the Court’s rulings. A motion to compel production is only proper where a party has agreed to produce documents but has failed to do so in compliance with its statement. (Code Civ. Proc. §2031.320, subd. (a).) Nonetheless, the Court expects that the parties will cooperate to coordinate production of responsive documents upon Defendant’s service of its supplemental responses in light of this Court’s order.

Disposition

In sum, Plaintiffs’ motion to compel is GRANTED in part and DENIED in part as detailed above.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00329739-CU-MC-GDS: Peter Rasmussen, by and through his successor-in- interest vs. ALHL, LLC, a limited liability 06/18/2024 Hearing on Motion to Compel Further Discovery Responses to Request for Production of Documents in Department 53

Plaintiffs’ motion is granted as to RPD nos. 66-71, 74-78, and 80. Defendant shall provide supplemental responses to these requests for production of document, without objection where the objections were overruled, by no later than July 5, 2024. Any responses which indicate that documents are being withheld due to privilege shall be accompanied by a privilege log.

Plaintiffs’ motion is denied as to RPD nos. 72-73, 79, and 81-82.

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