Elite Healthcare Resources LLC vs. Star Nursing Services, Inc.

Plaintiff argues that this case “simply does not lend itself to Form Interrogatories” and that the definition of “INCIDENT” is vague and ambiguous in a case involving defamatory statements made over time. The unpublished superior court cases cited by Plaintiff regarding the use of the term “INCIDENT” in form interrogatories are neither controlling nor helpful to Plaintiff. The

34-2022-00314757-CU-DF-GDS: Elite Healthcare Resources LLC vs. Star Nursing Services, Inc. 05/10/2023 Motion to Compel - Other - Civil Law and Motion Form Interrogatories and Production of Docs in Department 53

Court agrees with Defendant that “INCIDENT,” defined as, “The circumstances and events described in Elite Healthcare Resources, LLC’s Complaint” is clear enough for Plaintiff to respond to all form interrogatories using that term. The Court overrules the objections made by Plaintiff that any form interrogatory directed to Plaintiff is vague or ambiguous based on the definition of INCIDENT used therein.

Interrogatory No. 6.1 Form Interrogatory 6.1 asks, “Do you attribute any physical, mental, or emotional injuries to the INCIDENT?” Plaintiff responded, “No.” Defendant argues that Plaintiff alleged injuries, including harm to profits in the FAC, “but refuses to provide any information in discovery responses as to what those damages are.” (Defendant’s Separate Statement, 3:6-13.) Defendant ignores that this interrogatory was not sent to a person, but was sent to a business that cannot suffer “physical, mental or emotional injuries.” This interrogatory does not seek information regarding financial harm. Defendant’s motion to compel a further response to Form Interrogatory No. 6.1 is DENIED.

Interrogatory No. 8.1 Form Interrogatory No. 8.1 asks, “Do you attribute any loss of income or earning capacity to the INCIDENT?” After objecting, Plaintiff responded, “No.” Plaintiff contends that as a business, its financial losses would not constitute “loss of income or earning capacity.” The Court agrees. Defendant’s motion to compel a further response to Form Interrogatory No. 8.1 is DENIED.

Interrogatory Nos. 8.7 and 8.8 The Court concludes that because Plaintiff answered “No” to form interrogatory 8.1, no response was required by Plaintiff in response to interrogatory Nos. 8.7 or 8.8. As a result, Defendant’s motion to compel further responses to Form Interrogatory Nos. 8.7 and 8.8 is DENIED.

Interrogatory No. 9.1 (b-d) Form Interrogatory No. 9.1, b-d states, “Are there any other damages that you attribute to the INCIDENT? If so, for each item of damages state: (b) the date it occurred; (c) the amount; and (d) the name, ADDRESS, and telephone number of each PERSON to whom an obligation was incurred. Plaintiff responded:

(b) Various dates. The defamatory statements began shortly after the formation of Plaintiff and, to Plaintiff's knowledge, continue to this date; (c) At this time, the amount of claimed damages are unknown to Plaintiff but will be proven at the time of trial with the assistance of expert testimony. Plaintiff will supplement this response in good faith when responses to this request can be reasonably gathered from discovery and presented by expert testimony; (d) Defendants whose addresses and phone numbers are unknown to Plaintiff, but can be

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00314757-CU-DF-GDS: Elite Healthcare Resources LLC vs. Star Nursing Services, Inc. 05/10/2023 Motion to Compel - Other - Civil Law and Motion Form Interrogatories and Production of Docs in Department 53

contacted through counsel of record for Defendants.

For 9.1 (b), Plaintiff must furnish all dates that, after reasonable search and inquiry, Plaintiff has knowledge of. Defendant’s motion to compel a further response to Form Interrogatory No. 9.1 (b) is GRANTED.

For 9.1 (c), the Court agrees with Defendant that Plaintiff must provide a further response for this interrogatory. While Plaintiff is not required at this time to provide expert opinion, Plaintiff has a duty to obtain responsive information and must furnish it from sources under its control. (Code Civ. Proc., § 2030.220, subd. (a).) See also Deyo, v. Kilbourne (1978) 84 Cal.App.3d 771, 782 [“If a person cannot furnish details, he should set forth the efforts made to secure the information. He cannot plead ignorance to information which can be obtained from sources under his control.”].) Defendant’s motion to compel a further response to Form Interrogatory No. 9.1 (c) is GRANTED.

For 9.1 (d), Plaintiff has responded that an obligation was incurred to Defendants. Defendant states, “That any obligations would be owed to Defendants makes no sense.” (Defendant’s Separate Statement, 10:8-9, [emphasis in original].) That Defendant disagrees with Plaintiff’s factual contention is not a sufficient ground to compel a further response here. The Court will not order Plaintiff to change a substantive factual response. Defendant’s motion to compel a further response to Form Interrogatory No. 9.1 (d) is DENIED.

Interrogatory No. 12.1

Plaintiff’s response of “Not applicable” to Form Interrogatory No. 12.1 is insufficient and evasive. Defendant is entitled to discover the identity of witnesses known to Plaintiff regarding Plaintiff’s allegations. Defendant’s motion to compel further responses to all subsections of Form Interrogatory No. 12.1 is GRANTED.

Interrogatory No. 17.1 [Request for Admission (“RFA”) Nos. 4, 5, 6, 12, 16]

Plaintiff denies RFA Nos. 4, 5, 6, 12, and 16, which each involve requests for Plaintiff to admit that Defendant’s statements did not cause Plaintiff to suffer damages. In responding with facts that support these denials in the corresponding Form Interrogatory No. 17.1, Plaintiff responds with identical language to each as follows:

On or about May 4, 2021, Tiffany Fabiani, and [sic] employee of Plaintiff, received a phone call from Gerri (last name unknown), the scheduler at Casa Coloma Healthcare Center, that Kimberly Joens had sent over an email to her and John Nickols (Administrator at the time) not to use Plaintiff because Tiffany and Victoria were former employees of Star Nursing and Elite had

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00314757-CU-DF-GDS: Elite Healthcare Resources LLC vs. Star Nursing Services, Inc. 05/10/2023 Motion to Compel - Other - Civil Law and Motion Form Interrogatories and Production of Docs in Department 53

stolen Star Nursing client and healthcare provider lists. On or about May 7, 2021, Tiffany Fabiani was informed in person by Westview Healthcare Center scheduler, Behia Vanderdoes, that Kimberly Joens had phoned her and advised her not to use Elite for service because Tiffany and Victoria were former employees of Star Nursing that had stolen company files and client lists when they left and that they are not to be trusted. On or about May 11, 2021, Tiffany Fabiani was informed in person by Avalon Healthcare Regional Vice President Genesis Leininger, that she was informed by Kimberly Joens that Tiffany and Victoria were former employees of Star Nursing that had left and stolen employee and client lists from the company and cautioned Genesis not to use Elite.

Each of the foregoing constitute libel per se and slander per se because they reflect directly as to Plaintiff's business and accuses its employee of crimes from which general damages are presumed.

(Decl. Davey, Ex. 6.)

Defendant argues that the above response as to facts to support Plaintiff’s denials is insufficient because it merely repeats allegations from Plaintiff’s complaint and does not state any facts actually relating to Plaintiff’s alleged damages.

The Court agrees that Plaintiff’s reassertion of its allegations from the complaint as responses here does not, on its face, appear sufficient and thereby appears evasive. Stating all facts upon which Plaintiff bases its failure to admit that Defendant did not cause Plaintiff damages would expectedly include stating additional facts which show the nature and circumstance of the damages that Plaintiff alleges were caused by Defendant. However, if it is truly Plaintiff’s position that it is aware of no other facts after reasonable search and inquiry, Plaintiff may clarify that this statement constitutes the totality of factual evidence in response to the interrogatory.

Defendant’s motion to compel further responses to Form Interrogatory No. 17.1 as it relates to Plaintiff’s denials to RFA Nos. 4, 5, 6, 12, and 16 is GRANTED.

Interrogatory No. 17.1 [RFA No. 15]

RFA No. 15 asks Plaintiff to “ADMIT that DEFENDANT did not cause YOU to lose existing clients.” In its supplemental response to corresponding Form Interrogatory No. 17.1, Plaintiff responded that “San Rafael Healthcare and Wellness Centre refused to contract with Plaintiff claiming that it desired to stay [sic] of any disputes amongst Plaintiff and Defendant and has since refused to communicate with Plaintiff.” Plaintiff lists witnesses and states that it is not aware of any responsive documents. The Court finds that this response is sufficient. Defendant argues that this response is evasive because it is regarding a potential future client. The Court disagrees. There is no indication by way of the response that San Rafael Healthcare and Wellness Centre was not an existing client of Plaintiff.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00314757-CU-DF-GDS: Elite Healthcare Resources LLC vs. Star Nursing Services, Inc. 05/10/2023 Motion to Compel - Other - Civil Law and Motion Form Interrogatories and Production of Docs in Department 53

Defendant’s motion to compel a further response to Form Interrogatory No. 17.1 as it relates to Plaintiff’s denial of Defendant’s RFA No. 15 is DENIED.

Interrogatory No. 17.1 [RFA No. 26]

RFA No. 26 asks Plaintiff to “ADMIT that YOU have taken business from DEFENDANT.” Plaintiff objects to the phrase “taken business” as vague, but responds with a denial. For facts in support under Form Interrogatory 17.1, Plaintiff states, “Since its inception, Plaintiff has acquired new and additional business from various providers and facilities and, at times, such business may be at a provider or facility that also contracts with Defendants.” Plaintiff states witnesses include Plaintiff and Defendants and Plaintiff claims to be unaware of any responsive documents.

Defendant argues that “Elite should be compelled to provide a further response identifying the existing business Defendants have supposedly taken from Elite.” (Defendant’s Separate Statement, 27:4-6 [emphasis in original].) Defendant also asserts that Plaintiff, in meet and confer efforts, “discussed Elite’s willingness to produce a complete client list,” making their response to part (d) identifying no responsive documents evasive.

First, the Court notes that Defendant misidentifies the call of the question. Plaintiff is denying that Plaintiff has “taken business from DEFENDANT.” Facts regarding Plaintiff’s assertions that Defendant “took business” from Plaintiff is a different issue, and should not be compelled in response here. Similarly, the Court does not conclude that Plaintiff’ must identify its current client list in response to subsection (d).

Defendant’s motion to compel a further response to Form Interrogatory No. 17.1 as it relates to Plaintiff’s denial of Defendant’s RFA No. 26 is DENIED.

Interrogatory No. 17.1 [RFA No. 27]

RFA No. 27 asks Plaintiff to “ADMIT that some of YOUR current clients are DEFENDANT'S former clients.” Plaintiff responded with a denial. For facts in support of its denial, Plaintiff states:

Plaintiff has no knowledge of who Defendants claim to be their "former clients." While it may be the case that Plaintiff and Defendant may have both contracted with the same provider or facility, that is an issue unknown to Plaintiff. Plaintiff does not ask, nor discuss, whether or not a customer is using a staffing agency in addition to Plaintiff, thus. Plaintiff has no personal knowledge of which of its clients may also be utilizing Defendants or may have previously

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00314757-CU-DF-GDS: Elite Healthcare Resources LLC vs. Star Nursing Services, Inc. 05/10/2023 Motion to Compel - Other - Civil Law and Motion Form Interrogatories and Production of Docs in Department 53

utilized Defendants.

The Court does not find this response evasive. Defendant’s motion to compel a further response to Form Interrogatory No. 17.1 as it relates to Plaintiff’s denial of Defendant’s RFA No. 28 is DENIED.

Interrogatory No. 17.1 [RFA No. 28] RFA No. 28 asks Plaintiff to “ADMIT that some of YOUR current clients are DEFENDANT’S current clients.” In responding with facts in support of its denial, Plaintiff stated that is it is not aware of any current clients that are Defendant’s current clients and has no personal knowledge of which of its clients may also be utilizing Defendant.

The Court does not find this response evasive. Defendant’s motion to compel a further response to Form Interrogatory No. 17.1 as it relates to Plaintiff’s denial of Defendant’s RFA No. 28 is DENIED.

Request for Production of Documents, Set One

Request for Production No. 21

Defendant’s request for Plaintiff to “Produce YOUR current client list.” Plaintiff objected on numerous grounds, including that it is overly broad, unduly burdensome, not reasonably calculated to lead to the discovery of admissible evidence, and that it “improperly seeks confidential, proprietary, and trade secret information the disclosure of which could irreversibly damage Responding Party’s business if disclosed outside of Responding Party.” In a supplemental response, Plaintiff added that without waiving its objections, “upon execution of a Stipulated Protective Order between the parties and entered by the Court, Responding Party will produce its current client list designated as ‘Attorneys’ Eyes Only’ on the condition that Propounding Party agrees to produce the same in response to a document request.” The Court finds that production under an Attorneys’ Eye’s Only provision of a protective order would be appropriate.

However, Plaintiff cannot condition production of responsive documents on Defendant’s production of its client list. The production of Defendant’s client list is not at issue on this motion.

Defendant’s motion to compel a further response to Request for Production of Documents, No. 21, is GRANTED. Plaintiff is ordered to produce a further statement in response to Request for Production No. 21 that is not contingent on any production of documents by Defendant. The parties are ordered to further meet and confer regarding a stipulated protective order regarding confidential information in this action.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00314757-CU-DF-GDS: Elite Healthcare Resources LLC vs. Star Nursing Services, Inc. 05/10/2023 Motion to Compel - Other - Civil Law and Motion Form Interrogatories and Production of Docs in Department 53

As set forth above, Defendant’s motion is GRANTED, IN PART. Plaintiff must provide further responses as outlined herein by May 30, 2023, unless the parties agree in writing to a later date.

Defendant’s request for sanctions is DENIED.

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