FADDIS, et al. vs GRANDCARE INC, et al.

23CV006808: FADDIS, et al. vs GRANDCARE INC, et al. 04/03/2024 Hearing on Motion to Compel Further Discovery Responses in Department 53

Tentative Ruling

NOTICE: Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendar must comply with the following procedure: To request limited oral argument, on any matter on this calendar, you must call the Law and Motion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the court day before the hearing and advise opposing counsel. At the time of requesting oral argument, the requesting party shall leave a voice mail message: a) identifying themselves as the party requesting oral argument; b) indicating the specific matter/motion for which they are requesting oral argument; and c) confirming that it has notified the opposing party of its intention to appear and that opposing party may appear via Zoom using the Zoom link and Meeting ID indicated below.

If no request for oral argument is made, the tentative ruling becomes the final order of the Court. Unless ordered to appear in person by the Court, parties may appear remotely either telephonically or by video conference via the Zoom video/audio conference platform with notice to the Court and all other parties in accordance with Code of Civil Procedure §367.75. Although remote participation is not required, the Court will presume all parties are appearing remotely for non-evidentiary civil hearings.

The Department 53/54 Zoom Link is https://saccourt-ca-gov.zoomgov.com/my/sscdept53.54 and the Zoom Meeting ID is 161 4650 6749. To appear on Zoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NO COURTCALL APPEARANCES WILL BE ACCEPTED. Parties requesting services of a court reporter will need to arrange for private court reporter services at their own expense, pursuant to Government code §68086 and California Rules of Court, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy for Official Reporter Pro Tempore available on the Sacramento Superior Court website at https://www.saccourt.ca.gov/courtreporters/docs/crtrp-6a.pdf.

Parties may contact Court- Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-13.Pdf 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 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 be forward the form to the Court Reporter’s Office and an official reporter will be provided. TENTATIVE RULING: Plaintiffs’ motion to compel defendant Grandcare, Inc.’s further response to request for admission No. 9 is ruled upon as follows.

Factual Background

This is an action for elder abuse against a care facility, in which it is alleged that defendants “failed to provide adequate basic, custodial care, supervision, and security to Patrick Faddis in numerous respects, resulting in [him] being physically battered and

23CV006808: FADDIS, et al. vs GRANDCARE INC, et al. 04/03/2024 Hearing on Motion to Compel Further Discovery Responses in Department 53

abused by another resident with a known history of agitation and aggression.” (Compl., ¶4.) This matter has not yet been set for trial.

Moving Papers. Plaintiffs now move for an order compelling defendant Grandcare to provide a further response to request for admission No. 9 on the ground the initial response is “evasive and fails to comply with the Code.”

Opposition. Defendant opposes, arguing that its single objection to this request is substantively identical to an objection plaintiff asserted in response to one of defendant’s requests for admissions and that its substantive response is not evasive given the facts of this case (i.e., the physical assault and battery committed by another resident of the facility).

Discussion

Request No. 9 asks defendant to admit it violated Mr. Faddis’ rights under the Patient’s Bill of Rights while he was a resident at subject facility. Defendant responded with the following:

Objection, the Request as framed impermissibly seeks the premature disclosure of expert opinion. This responding party is unable to either admit or deny the matters set forth in this Request under penalty of perjury because it does not have sufficient knowledge of these matters to either admit or deny the matters set forth in this request despite a reasonable inquiry into the matter by reviewing all of the records and information presently available to obtain information from which the truth or falsity of the matter might be learned. Discovery and investigation are ongoing. This responding party reserves the right to supplement this response upon subsequently discovered information.

Regardless of whether plaintiffs previously asserted a similar objection based on the premature disclosure of expert opinion, this Court finds that defendant’s objection is substantially justified under the circumstances to the extent a response would require disclosure of opinions of (presently) non-disclosed experts protected under the attorney work product doctrine and would circumvent the procedure of expert witness disclosure under Code of Civil Procedure §2034.010, et seq. Accordingly, the Court declines to overrule the objection to this extent and finds that it is, at minimum, properly preserved.

Moreover, the Court finds that the objection does not appear to be made as a means to evade providing a code-complaint response to the request. Code of Civil Procedure §2033.220 provides in its entirety:

(a) Each answer in a response to requests for admission shall be as complete

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV006808: FADDIS, et al. vs GRANDCARE INC, et al. 04/03/2024 Hearing on Motion to Compel Further Discovery Responses in Department 53

and straightforward as the information reasonably available to the responding party permits. (b) Each answer shall: (1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party. (2) Deny so much of the matter involved in the request as is untrue. (3) Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge. (c) If a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter. (Underline added for emphasis.)

In this Court’s view, defendant has a variety of code-compliant ways in which to respond to this request for admission and has permissibly opted for the third alternative, as set forth in (b)(3). Not only does defendant’s response specifically state that it currently lacks sufficient knowledge either to admit or to deny this request, but it also substantially complies with the additional requirements of subdivision (c), requiring any statement of insufficient knowledge or information to include an attestation that a reasonable inquiry into the matter be made and that the presently available is insufficient to enable the party to admit the matter.

Regardless of whether plaintiffs are satisfied with defendant’s response, the response itself is code-compliant and verified. That plaintiffs may be of the view that defendant should have sufficient non-privileged information to answer differently is not determinative of whether the response satisfies Code of Civil Procedure § 2033.220. Plaintiffs’ characterization of defendant’s response as “evasive” and not code-compliant is rejected. In short, plaintiffs have failed to persuade this Court that a further response is warranted under the circumstances here.

Finally, to the extent the moving papers claim defendant’s response “prevents” plaintiffs from seeking costs of proof under Code of Civil Procedure §2033.420 insofar as defendant did not actually “deny” this request, plaintiffs misread this statute. Subdivision (a) generally permits the recovery of the costs of proof where “a party fails to admit the genuineness of any document or the truth of any matter when requested” unless one of the exceptions in subdivision (b) applies. As such, an outright “denial” is not a prerequisite to seeking cost of proof sanctions under §2033.420. Here, defendant has not admitted the matter in question and the consequence of plaintiff proving the matter at trial remains defendant’s potential liability for the “cost of proof” in relation thereto. For this reason as well, the Court finds insufficient justification to compel a further response to request No.

9.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV006808: FADDIS, et al. vs GRANDCARE INC, et al. 04/03/2024 Hearing on Motion to Compel Further Discovery Responses in Department 53

Disposition

For the reasons explained above, plaintiffs’ motion to compel shall be DENIED.

Neither side requested any monetary sanctions.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)