Preview
1 BRETT SCHOEL, STATE BAR NO. 224212
BSchoel@ljdfa.com
2 DANIELLE OTERO, STATE BAR NO. 338421
dotero@ljdfa.com E-FILED
3 LA FOLLETTE, JOHNSON, 3/21/2022 3:53 PM
DeHAAS, FESLER & AMES Superior Court of California
4 655 University Avenue, Suite 119 County of Fresno
Sacramento, California 95825-6746 By: I. Herrera, Deputy
5 Telephone (916) 563-3100 • Facsimile (916) 565-3704
6 Attorneys for Defendants
ASFC, LLC dba SIERRA VISTA HEALTHCARE and ASPEN
7 SKILLED HEALTHCARE, INC.
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF FRESNO
LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES
10
11 LOLA NUTT, by and through her Successor CASE NO.: 21CECG00531
in Interest, HENRY NUTT; and HENRY
12 NUTT, KEVIN NUTT, VASHON NUTT; DEFENDANTS OPPOSITION TO PLAINTIFF’S
and TYRONE NUTT, individually, SEPARATE STATEMENT IN SUPPORT OF
13 MOTION TO COMPEL FORM
Plaintiffs, INTERROGATORIES, SET ONE and SPECIAL
14 INTERROGATORIES, SET ONE TO ASFC, LLC
vs. dba SIERRA VISTA HEALTHCARE
15
ASFC, LLC dba SIERRA VISTA TRIAL DATE: 08/07/23
16 HEALTHCARE; ASPEN SKILLED ACTION FILED: 02/23/21
HEALTHCARE, INC; and DOES 1-25,
17 inclusive, Assigned to Kimberly Gaab, 503, for all purposes
including trial
18 Defendants.
19
20 FORM INTERROGATORY NO. 12.2:
21 Have YOU OR ANYONE ACTING ON YOUR BEHALF interviewed any individual
22 concerning the INCIDENT? If so, for each individual state:
23 (a) the name, ADDRESS, and telephone number of the individual interviewed;
24 (b) the date of the interview; and
25 (c) the name, ADDRESS, and telephone number of the PERSON who conducted the
26 interview.
27 ///
28 ///
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DEFENDANTS OPPOSITION TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL
FORM INTERROGATORIES, SET ONE and SPECIAL INTERROGATORIES, SET ONE TO ASFC, LLC dba SIERRA
1 DEFENDANT’S RESPONSE TO FORM INTERROGATORY NO. 12.2:
2 Objection. Responding Party objects to this interrogatory on the grounds it is vague and
3 ambiguous as to the terms “incident” and “interviewed,” and to the extent that it seeks
4 information protected by the attorney client privilege, and/or the attorney work product doctrine.
5 See Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214. Responding
6 Party also objects to the extent it seeks the premature disclosure of expert witness information
7 in contravention of Code of Civil Procedure section 2034, and to the extent it seeks information
8 not subject to disclosure by the Peer Review Doctrine pursuant to Evidence Code section 1157;
9 Business & Professions Code section 805(a)(1)(A); 42 C.F.R. section 483.75(o). Also see
LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES
10 Alexander v. Superior Court (Saheb) (1993) 5 Cal.4th 1218, 1224, 1227-28 and Matchett v.
11 Superior Court (1974) 40 Cal.App.3d 623.
12 PLAINTIFFS’ BASIS FOR FURTHER RESPONSE TO FORM INTERROGATORY NO.
13 12.2:
14 Reason a Further Response Should Be Compelled: Recorded witness statements or
15 interviews are not automatically entitled to absolute privilege and may only be entitled to
16 qualified work product protection at best. (Coito v. Sup. Ct. (State of CA) (2012) 54 Cal.4th 480,
17 485.) Witness statements may only be entitled to absolute protection if the Responding Party
18 can show that disclosure would reveal its “attorney’s impressions, conclusions, opinions, or
19 legal research or theories.” (Ibid. Code Civ. Proc., § 2018.030(a).) Responding Party “must
20 make a preliminary or foundational showing in support if its claim” and then the court should
21 make an in-camera inspection to determine whether absolute work product protection applies to
22 some or all of the material. (Coito, supra, at p. 499-500.) If not, then the items may be subject
23 to discovery if plaintiff can show that “denial of discovery will unfairly prejudice [him/her] in
24 preparing [his/her] claim…or will result in an injustice.” (Ibid. Code Civ. Proc., § 2018.030(b).)
25 Here, defendant makes no factual showing that the recorded witness statements would reveal
26 counsel’s impressions apart from simply stating that they do. And denial of the discovery will
27 unfairly prejudice plaintiff because it would deprive plaintiff from statements made at or near
28 the time of the incident when witness’ memories were fresh. As to the identity of witnesses from
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DEFENDANTS OPPOSITION TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL
FORM INTERROGATORIES, SET ONE and SPECIAL INTERROGATORIES, SET ONE TO ASFC, LLC dba SIERRA
1 whom Responding Party’s counsel has obtained statements, that information is not
2 automatically entitled as a matter of law to absolute or qualified work product protection either.
3 (Coito, supra, at p. 499-500; Code Civ. Proc., § 2018.030(b).) Rather, Responding Party has the
4 burden of showing that disclosure would reveal the attorney’s tactics, impressions, or evaluation
5 of the case (absolute privilege) or would result in opposing counsel taking undue advantage of
6 the attorney’s industry or efforts (qualified privilege). (Coito, supra, at p. 499-500; Code Civ.
7 Proc., § 2018.030(b).) Here, defendant will be unable to meet its burden because plaintiff is not
8 seeking the identity of witnesses interviewed by Responding Party’s attorney. Plaintiff merely
9 seeks the identity of witnesses who gave statements at or near the time of the event. In addition,
LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES
10 simply because a statement was independently prepared by a witness and subsequently obtained
11 by an attorney does not constitute derivative material and therefore, is not entitled to absolute or
12 qualified work product protection. (Id. at p. 500-501.) Further, with regards to Defendant’s
13 objection on the basis of Evidence Code section 1157, this code section only applies hospitals,
14 not skilled nursing facilities. The very language of the statute says the privilege applies to
15 records or proceedings “of organized committees … in hospitals”. (Evid. Code, § 1157
16 (emphasis added).) And even if it did apply to skilled nursing facilities, it only applies to
17 “recordings or proceedings of a medical staff committee”, not the identification of witnesses
18 who may have prepared a report regarding the incident. (Santa Rosa Memorial Hospital v. Sup.
19 Ct. (1985) 174 Cal.App.3d 711, 727.) Further, there are many exceptions to this limited privilege
20 as it applies to “hospitals”. (See e.g., Brown v. Superior Court (1985) 168 Cal.App.3d 489, 501
21 (the fact of the evaluation is not privileged); see also Santa Rosa Mem. Hosp. v. Superior Court
22 (1985) 174 Cal.App.3d 711, 724 (information developed by hospital administrators does not
23 become privileged by being placed in medical review committee’s files.)
24 DEFENDANT’S REASONS WHY FURTHER RESPONSE TO FORM
25 INTERROGATORY NO. 12.2 SHOULD NOT BE COMPELLED:
26 Sierra Vista Healthcare provided the requested supplemental response to Form
27 Interrogatory no. 12.2. Accordingly, there is nothing further to compel.
28
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DEFENDANTS OPPOSITION TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL
FORM INTERROGATORIES, SET ONE and SPECIAL INTERROGATORIES, SET ONE TO ASFC, LLC dba SIERRA
1 FORM INTERROGATORY NO. 12.3:
2 Have YOU OR ANYONE ACTING ON YOUR BEHALF obtained a written or recorded
3 statement from any individual concerning the INCIDENT? If so, for each statement state:
4 (a) the name, ADDRESS, and telephone number of the individual from whom the
5 statement was obtained;
6 (b) the name, ADDRESS, and telephone number of the individual who obtained the
7 statement;
8 (c) the date the statement was obtained; and
9 (d) the name, ADDRESS, and telephone number of each PERSON who has the
LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES
10 original statement or a copy.
11 DEFENDANT’S RESPONSE TO FORM INTERROGATORY NO. 12.3:
12 Objection. Responding Party objects to this interrogatory on the grounds it is vague and
13 ambiguous as to the terms “incident” and “statement,” and to the extent that it seeks information
14 protected by the attorney client privilege, and/or the attorney work product doctrine. See Nacht
15 & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214. Responding Party also
16 objects to the extent it seeks the premature disclosure of expert witness information in
17 contravention of Code of Civil Procedure section 2034, and to the extent it seeks information not
18 subject to disclosure by the Peer Review Doctrine pursuant to Evidence Code section 1157;
19 Business & Professions Code section 805(a)(1)(A); 42 C.F.R. section 483.75(o). Also see
20 Alexander v. Superior Court (Saheb) (1993) 5 Cal.4th 1218, 1224, 1227-28 and Matchett v.
21 Superior Court (1974) 40 Cal.App.3d 623. Furthermore, Responding Party objects to the extent
22 this interrogatory calls for a compilation of Decedent’s own medical records to which Plaintiffs
23 have greater access than this Responding Party.
24 PLAINTIFFS’ BASIS FOR FURTHER RESPONSE TO FORM INTERROGATORY NO.
25 12.3:
26 Recorded witness statements or interviews are not automatically entitled to absolute
27 privilege and may only be entitled to qualified work product protection at best. (Coito v. Sup.
28 Ct. (State of CA) (2012) 54 Cal.4th 480, 485.) Witness statements may only be entitled to
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DEFENDANTS OPPOSITION TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL
FORM INTERROGATORIES, SET ONE and SPECIAL INTERROGATORIES, SET ONE TO ASFC, LLC dba SIERRA
1 absolute protection if the Responding Party can show that disclosure would reveal its “attorney’s
2 impressions, conclusions, opinions, or legal research or theories.” (Ibid. Code Civ. Proc., §
3 2018.030(a).) Responding Party “must make a preliminary or foundational showing in support
4 if its claim” and then the court should make an in camera inspection to determine whether
5 absolute work product protection applies to some or all of the material. (Coito, supra, at p. 499-
6 500.) If not, then the items may be subject to discovery if plaintiff can show that “denial of
7 discovery will unfairly prejudice [him/her] in preparing [his/her] claim…or will result in an
8 injustice.” (Ibid. Code Civ. Proc., § 2018.030(b).) Here, defendant makes no factual showing
9 that the recorded witness statements would reveal counsel’s impressions apart from simply
LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES
10 stating that they do. And denial of the discovery will unfairly prejudice plaintiff because it would
11 deprive plaintiff from statements made at or near the time of the incident when witness’
12 memories were fresh.
13 As to the identity of witnesses from whom Responding Party’s counsel has obtained
14 statements, that information is not automatically entitled as a matter of law to absolute or
15 qualified work product protection either. (Coito, supra, at p. 499-500; Code Civ. Proc., §
16 2018.030(b).) Rather, Responding Party has the burden of showing that disclosure would reveal
17 the attorney’s tactics, impressions, or evaluation of the case (absolute privilege) or would result
18 in opposing counsel taking undue advantage of the attorney’s industry or efforts (qualified
19 privilege). (Coito, supra, at p. 499-500; Code Civ. Proc., § 2018.030(b).) Here, defendant will
20 be unable to meet its burden because plaintiff is not seeking the identity of witnesses interviewed
21 by Responding Party’s attorney. Plaintiff merely seeks the identity of witnesses who gave
22 statements at or near the time of the event. In addition, simply because a statement was
23 independently prepared by a witness and subsequently obtained by an attorney does not
24 constitute derivative material and therefore, is not entitled to absolute or qualified work product
25 protection. (Id. at p. 500-501.) Further, with regards to Defendant’s objection on the basis of
26 Evidence Code section 1157, this code section only applies hospitals, not skilled nursing
27 facilities. The very language of the statute says the privilege applies to records or proceedings
28 “of organized committees … in hospitals”. (Evid. Code, § 1157 (emphasis added).) And even if
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DEFENDANTS OPPOSITION TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL
FORM INTERROGATORIES, SET ONE and SPECIAL INTERROGATORIES, SET ONE TO ASFC, LLC dba SIERRA
1 it did apply to skilled nursing facilities, it only applies to “recordings or proceedings of a medical
2 staff committee”, not the identification of witnesses who may have prepared a report regarding
3 the incident. (Santa Rosa Memorial Hospital v. Sup. Ct. (1985) 174 Cal.App.3d 711, 727.)
4 Further, there are many exceptions to this limited privilege as it applies to “hospitals”. (See e.g.,
5 Brown v. Superior Court (1985) 168 Cal.App.3d 489, 501 (the fact of the evaluation is not
6 privileged); see also Santa Rosa Mem. Hosp. v. Superior Court (1985) 174 Cal.App.3d 711, 724
7 (information developed by hospital administrators does not become privileged by being placed
8 in medical review committee’s files.)
9 DEFENDANT’S REASONS WHY FURTHER RESPONSE TO FORM
LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES
10 INTERROGATORY NO. 12.3 SHOULD NOT BE COMPELLED:
11 Sierra Vista Healthcare provided the requested supplemental response to Form
12 Interrogatory no. 12.3. Accordingly, there is nothing further to compel.
13 FORM ITERROGATORY NO. 15.1:
14 Identify each denial of a material allegation and each special or affirmative defense in
15 your pleadings and for each: (a) state all facts upon which you base the denial or special or
16 affirmative defense; (b) state the names, ADDRESSES, and telephone numbers of all PERSONS
17 who have knowledge of those facts; and (c) identify all DOCUMENTS and other tangible things
18 that support your denial or special or affirmative defense, and state the name, ADDRESS, and
19 telephone number of the PERSON who has each DOCUMENT.
20 DEFENDANT’S RESPONSE TO FORM INTERROGATORY NO. 15.1:
21 Responding Party filed its demurrer and motion to strike upon its statutory right to do so.
22 Accordingly, Responding Party reserves its right to propound affirmative defenses in response
23 to unverified complaint provided as a matter of right in order to protect its right to assert such
24 defenses in the event that discovery and investigation were to reveal a basis for same once the
25 court provides a response to the demurrer and motion to strike. Responding Party is unaware at
26 this juncture of the identity of all persons who have knowledge or who may have knowledge of
27 the facts supporting one or more of the affirmative defenses in this pleading. Other than the
28 parties to this action and their agents and attorneys, as well as those individuals identified in the
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DEFENDANTS OPPOSITION TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL
FORM INTERROGATORIES, SET ONE and SPECIAL INTERROGATORIES, SET ONE TO ASFC, LLC dba SIERRA
1 medical records of Decedent, Lola Nutt, and those individuals known to Plaintiffs themselves,
2 Responding Party is unaware of all the individuals who may actually have knowledge of the
3 supporting facts. Discovery and investigation are continuing and aside from the pleadings,
4 medical records obtained in discovery conducted to date, Responding Party is currently unaware
5 of the existence of any other documents and/or tangible things that deal or may support his
6 denials or special affirmative defenses. Based upon the facts which will be developed by way of
7 future investigation and discovery, Responding Party reserves its right to modify, alter and/or
8 amend this response accordingly, up to and including the time of trial. Finally, Responding Party
9 objects to this interrogatory on grounds that it potentially calls for information obtained from a
LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES
10 consulting expert witness, or the identity of any consulting expert witness, which information is
11 protected from disclosure by the attorney work-product privilege and Code of Civil Procedure
12 section 2034.210, et seq. Responding Party has no duty to identify any expert witnesses, whether
13 they are going to testify or not, except pursuant to Code of Civil Procedure section 2034.210, et
14 seq. This interrogatory also potentially calls for disclosure of information protected from
15 discovery by the attorney-client privilege.
16 DEFENDANT’S SUPPLEMENTAL RESPONSE TO FORM INTERROGATORY NO.
17 15.1:
18 Subject to and without waiving the foregoing objections, Responding Party responds:
19 Responding Party contends Ms. Nutt passed away from causes outside the control of defendants
20 Aspen Healthcare and ASFC, LLC dba Sierra Vista Healthcare. Further, defendants Aspen
21 Healthcare and ASFC, LLC dba Sierra Vista Healthcare and their employees performed all
22 duties required by them above and beyond the applicable standard of care
23 PLAINTIFFS’ BASIS FOR FURTHER RESPONSE TO FORM INTERROGATORY NO.
24 15.1:
25 Interrogatory No. 15.1 seeks facts, witnesses, and documents supporting each denial of a
26 material allegation and each affirmative defense raised in the defendants’ Answer. Form
27 Interrogatory No. 15.1 is a judicially-approved discovery tool that is specifically authorized by
28
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DEFENDANTS OPPOSITION TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL
FORM INTERROGATORIES, SET ONE and SPECIAL INTERROGATORIES, SET ONE TO ASFC, LLC dba SIERRA
1 the Code. Thus, any objections to it are meritless. Code of Civil Procedure section 2030.010(b)
2 specifically states:
3 An interrogatory may relate to whether another party is making a certain contention, or
4 to the facts, witnesses, and writings on which a contention is based. An interrogatory is not
5 objectionable because an answer to it involves an opinion or contention that relates to fact or the
6 application of law to fact or would be based on information obtained or legal theories developed
7 in anticipation of litigation or in preparation for trial. (Emphasis added; see also Code Civ. Proc.,
8 § 2017.010 (“Discovery may relate to the claim or defense of the party seeking discovery or of
9 any other party to the action. Discovery may be obtained of the identity and location of persons
LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES
10 having knowledge of any discoverable matter, as well as of the existence, description, nature,
11 custody, condition, and location of any document, electronically stored information, tangible
12 thing, or land or other property.”)
13 The purpose of discovery is to “test the pleadings” and enable parties to determine what
14 the opponent’s claims are, and what facts they relied upon to support their contentions. (Code
15 Civ. Proc., § 2030.010(b); Burke v. Superior Court (1969) 71 Cal.2d 276, 281; Singer v.
16 Superior Court (Contra Costa County) (1960) 54 Cal.2d 318, 323-325.) The information sought
17 by this interrogatory is “of a nature peculiarly within the mind of defendant”. (Singer v. Superior
18 Court, supra, at p. 324.) Here, Defendant claims it is unaware of any witnesses and documents
19 outside of what is contained in the pleadings, medical records obtained in discovery conducted
20 to date. However, Defendant fails to address what, if any, facts it knows to support his pleaded
21 defenses and requiring an answer is not oppressive. (Id. at p. 326.) If Defendants know of any
22 facts which support any of its defenses, they must so state. It has now been 6 months since the
23 complaint was first filed. Defendants have had more than enough time to commence sufficient
24 investigation and discovery to provide a response. Even so, requiring a response now will not
25 limit Defendants from relying on subsequently discovered facts.
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DEFENDANTS OPPOSITION TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL
FORM INTERROGATORIES, SET ONE and SPECIAL INTERROGATORIES, SET ONE TO ASFC, LLC dba SIERRA
1 DEFENDANT’S REASONS WHY FURTHER RESPONSE TO FORM
2 INTERROGATORY NO. 15.1 SHOULD NOT BE COMPELLED:
3 Sierra Vista Healthcare provided the requested supplemental response to Form
4 Interrogatory no. 15.1. Plaintiffs are not satisfied with Defendant’s answer. At the time of
5 Plaintiffs’ motion to compel, there was a pending demurrer, and no Answer had been filed in
6 the instant case. Since Plaintiffs filed a First Amended Complaint and Defendant provided an
7 Answer on December 23, 2021. Once additional discovery is completed, a supplemental
8 response will be prepared. However, discovery continues and Defendant is unaware of
9 additional records or facts supporting its contentions outside of decedent, Ms. Nutt’s, medical
LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES
10 record which has been produced in response to discovery. In addition, once Defendant has had
11 the opportunity to take Plaintiffs’ depositions, and expert disclosures have been made,
12 Defendant will be better suited to respond to this interrogatory.
13 SPECIAL INTERROGATORY NO. 5:
14 Please IDENTIFY all PERSONS who were responsible for the day-to-day operations of
15 the FACILITY during PLAINTIFF's residency.
16 DEFENDANT’S RESPONSE TO SPECIAL INTERROGATORY NO. 5:
17 Objection. This request is vague and ambiguous as to the term “day-to-day operations.”
18 Subject to and without waiving the foregoing objection, Defendant responds as follows: During
19 PLAINTIFF’s residency at ASFC, LLC dba SIERRA VISTA HEALTHCARE, Jordan Holt was
20 the Administrator and Ptolomeo (“John”) Causing was the Director of Nursing. These
21 individuals may be contacted through counsel.
22 PLAINTIFFS’ BASIS FOR FURTHER RESPONSE TO SPECIAL INTERROGATORY
23 NO. 5:
24 This is non-responsive and evasive. Defendant’s response does not answer the questions
25 of who was responsible for the day-to-day operations. During meet and confer efforts, Plaintiff
26 asked Defendant to clarify if by this response, Defendant mean that the administrator and the
27 director of nursing were responsible for the day-to-day operations of the facility. Defendant
28 refused to clarify. A response to interrogatories must be “as complete and straightforward as the
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DEFENDANTS OPPOSITION TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL
FORM INTERROGATORIES, SET ONE and SPECIAL INTERROGATORIES, SET ONE TO ASFC, LLC dba SIERRA
1 information reasonably available to the responding party permits. If an interrogatory cannot be
2 answered completely, it shall be answered to the extent possible.” (Code Civ. Proc., §
3 2030.220(a), (b).) This information is relevant to Plaintiff’s claim for enhanced remedies under
4 Welfare and Institutions Code section 15657 and Civil Code section 3294. In order to obtain
5 enhanced remedies against Defendants, Plaintiff must prove that an officer, a director, or a
6 managing agent of Defendants authorized or ratified the wrongful conduct of their employees
7 or had advanced knowledge of the unfitness of their employees. In order to conduct discovery
8 to support these claims, it is essential that Plaintiffs know the identities of Defendant’s key
9 corporate actors and understand the structure of ownership and management within the
LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES
10 company. Knowing the organizational structure of the facility is paramount to being able to
11 determine who was responsible for training, monitoring, and supervising the employees. It is
12 fundamentally unfair to have the burden of proof on the issue of ratification of misconduct yet
13 preclude plaintiff from determining who was in a position of power to authorize/ratify the
14 misconduct.
15 DEFENDANT’S REASONS WHY FURTHER RESPONSE TO SPECIAL
16 INTERROGATORY NO. 5 SHOULD NOT BE COMPELLED:
17 Defendant’s answer to Plaintiffs’ special interrogatory is clear. The Administrator,
18 Jordan Holt, and Ptolomeo (“John”) Causing, the Director of Nursing, were responsible for the
19 day to day operations of the facility. Plaintiffs are requesting additional questions that are not
20 posed in this special interrogatory.
21 Further, Defendant produced the job descriptions of both the Administrator and the
22 Director of Nursing. See Bates No. 001-Administrator_001-001-Administrator_008, and 002-
23 Director Nursing Services_001-002-Director Nursing Services_010, attached hereto as Exhibit
24 “A”.
25 According to the Administrator job description, “The primary purpose of your job
26 description is to direct the day-to-day functions of the facility in accordance with current federal,
27 state, and local standards, guidelines, and regulations that govern nursing facilities to assure that
28 the highest degree of quality care can be provided to our residents at all times.” See id.
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DEFENDANTS OPPOSITION TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL
FORM INTERROGATORIES, SET ONE and SPECIAL INTERROGATORIES, SET ONE TO ASFC, LLC dba SIERRA
1 According to the Director of Nursing job description, “The primary purpose of your job
2 position is to plan, organize, develop and direct the overall operation of our Nursing Service
3 Department in accordance with current federal, state, and local standards, guidelines, and
4 regulations that govern our facility, and as may be directed by the Administrator and the Medical
5 Director, to ensure that the highest degree of quality care is maintained at all times.” See id.
6 Based thereon, Defendant identified the Administrator and Director of Nursing. It is
7 unclear what additional information needs to be provided.
8 SPECIAL INTERROGATORY NO. 6:
9 Please IDENTIFY all PERSONS who were members of the GOVERNING BODY of
LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES
10 FACILITY. GOVERNING BODY means as set forth in 42 CFR 483.410 those individuals that
11 exercise general policy, budget, and operating direction over the facility, set the qualifications
12 of the administrator and appoint the administrator.
13 DEFENDANT’S RESPONSE TO SPECIAL INTERROGATORY NO. 6:
14 Objection. This interrogatory is vague and ambiguous as to the term “members of the
15 GOVERNING BODY.” Subject to and without waiving the foregoing objection, Defendant
16 responds as follows: The managing members of ASFC, LLC dba SIERRA VISTA
17 HEALTHCARE during the period of PLAINTIFF’s residency were: Jay Brady, Jeff Bradshaw
18 and Ryan Case. These individuals may be contacted through counsel.
19 PLAINTIFF’S BASIS FOR FURTHER RESPONSE TO SPECIAL INTERROGATORY
20 NO. 6:
21 This is non-responsive and evasive. Managing members and members of the Governing
22 Body are not the same. “Governing Body” is defined in the interrogatory as “those individuals
23 that exercise general policy, budget, and operating direction over the facility, set the
24 qualifications of the administrator and appoint the administrator,” as set forth in 42 CFR
25 483.410.
26 This information is relevant to Plaintiff’s claim for enhanced remedies under Welfare and
27 Institutions Code section 15657 and Civil Code section 3294. In order to obtain enhanced
28 remedies against Defendants, Plaintiff must prove that an officer, a director, or a managing agent
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DEFENDANTS OPPOSITION TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL
FORM INTERROGATORIES, SET ONE and SPECIAL INTERROGATORIES, SET ONE TO ASFC, LLC dba SIERRA
1 of Defendants authorized or ratified the wrongful conduct of their employees or had advanced
2 knowledge of the unfitness of their employees. In order to conduct discovery to support these
3 claims, it is essential that Plaintiffs know the identities of Defendant’s key corporate actors and
4 understand the structure of ownership and management within the company. Knowing the
5 organizational structure of the facility is paramount to being able to determine who was
6 responsible for training, monitoring, and supervising the employees. It is fundamentally unfair
7 to have the burden of proof on the issue of ratification of misconduct yet preclude plaintiff from
8 determining who was in a position of power to authorize/ratify the misconduct.
9 DEFENDANT’S REASONS WHY FURTHER RESPONSE TO SPECIAL
LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES
10 INTERROGATORY NO. 6 SHOULD NOT BE COMPELLED:
11 Jay Brady, Jeff Bradshaw, and Ryan Case are the managing members, or “owners” of
12 Sierra Vista Healthcare. In addition, Defendant produced Sierra Vista Healthcare’s
13 Ownership/Operator Information at Bates No. ASFC Ownership_001-ASFC Ownership_002,
14 attached hereto as “Exhibit B.”
15 Defendant’s response is responsive, and no additional response is warranted.
16 SPECIAL INTERROGATORY NO. 7:
17 Do you have an excess insurance liability policy that insures you for the damages or
18 claims arising out of this lawsuit?
19 DEFENDANT’S RESPONSE TO SPECIAL INTERROGATORY NO. 7:
20 Objection. Defendant objects to this request on grounds that the request is not reasonably
21 calculated to lead to the discovery of admissible evidence.
22 SUPPLEMENTAL RESPONSE TO SPECIAL INTERROGATORY NO. 7:
23 Objection. Defendant objects to this request on grounds that the request is not reasonably
24 calculated to lead to the discovery of admissible evidence. Subject to and without waiving the
25 foregoing objections, Defendant responds as follows: No.
26 PLAINTIFFS’ BASIS FOR FURTHER RESPONSE TO SPECIAL INTERROGATORY
27 NO. 7:
28
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s:\6446.42251 nutt\law and motion\do draft
oppositions\opp.sepstmt.mtcrogs.001.asfc.d.docx
DEFENDANTS OPPOSITION TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL
FORM INTERROGATORIES, SET ONE and SPECIAL INTERROGATORIES, SET ONE TO ASFC, LLC dba SIERRA
1 Insurance policies are properly subject to discovery. (Code Civ. Proc., § 2017.210;
2 Irvington-Moore, Inc. v. Super. Ct. (1993) 14 Cal.App.4th 733, 741.) Insurance information is
3 essential for settlement purposes, and this makes it “relevant to the subject matter” of the action.
4 (Laddon v. Super.Ct. (1959) 167 Cal.2d 391, 396; Wiel & Brown, Cal. Practice Guide: Civil
5 Procedure Before Trial (The Rutter Group) ¶ 8:92.) A party may also discover whether the
6 defendant's insurance carrier is disputing coverage of the claim involved in the action ... but not
7 the nature and substance of the dispute. (Code Civ. Proc., § 2017.210.) As such, a further
8 response is warranted.
9 DEFENDANT’S REASONS WHY FURTHER RESPONSE TO SPECIAL
LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES
10 INTERROGATORY NO. 7 SHOULD NOT BE COMPELLED:
11 Defendant supplemented its response on August 30, 2021. Therefore, no further response
12 is required.
13 SPECIAL INTERROGATORY NO. 8:
14 Do you have a burning limits insurance policy that insures you for the damages or claims
15 arising out of this lawsuit?
16 RESPONSE TO SPECIAL INTERROGATORY NO. 8:
17 Objection. Defendant objects to this request on grounds that the request is not reasonably
18 calculated to lead to the discovery of admissible evidence.
19 SUPPLEMENTAL RESPONSE TO SPECIAL INTERROGATORY NO. 8:
20 Objection. Defendant objects to this request on grounds that the request is not reasonably
21 calculated to lead to the discovery of admissible evidence. Subject to and without waiving the
22 foregoing objections, Defendant responds as follows: No.
23 PLAINTIFFS’ BASIS FOR FURTHER RESPONSE TO SPECIAL INTERROGATORY
24 NO. 8:
25 Insurance policies are properly subject to discovery. (Code Civ. Proc., § 2017.210;
26 Irvington-Moore, Inc. v. Super. Ct. (1993) 14 Cal.App.4th 733, 741.) Insurance information is
27 essential for settlement purposes, and this makes it “relevant to the subject matter” of the action.
28 (Laddon v. Super.Ct. (1959) 167 Cal.2d 391, 396; Wiel & Brown, Cal. Practice Guide: Civil
- 13 -
s:\6446.42251 nutt\law and motion\do draft
oppositions\opp.sepstmt.mtcrogs.001.asfc.d.docx
DEFENDANTS OPPOSITION TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL
FORM INTERROGATORIES, SET ONE and SPECIAL INTERROGATORIES, SET ONE TO ASFC, LLC dba SIERRA
1 Procedure Before Trial (The Rutter Group) ¶ 8:92.) A party may also discover whether the
2 defendant's insurance carrier is disputing coverage of the claim involved in the action ... but not
3 the nature and substance of the dispute. (Code Civ. Proc., § 2017.210.) As such, a further
4 response is warranted.
5 DEFENDANT’S REASONS WHY FURTHER RESPONSE TO SPECIAL
6 INTERROGATORY NO. 8 SHOULD NOT BE COMPELLED:
7 Defendant supplemented its response on August 30, 2021. Therefore, no further response
8 is required.
9 SPECIAL INTERROGATORY NO. 28:
LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES
10 Please identify the date of each reassessment that was conducted with regards to
11 PLAINTIFF during her residency at the FACILITY, as required by the California Code of
12 Regulations, Title 22, section 72311.
13 DEFENDANT’S RESPONSE TO SPECIAL INTERROGATORY NO. 28:
14 Objection. This request lacks proper foundation. Subject to and without waiving the
15 foregoing objection, Defendant responds as follows: According to the Sierra Vista Healthcare
16 medical records at Bates No. ASPEN 78, the Assessment Administration is signed by Soksrey
17 Leu, LVN on February 17, 2020; at Bates No. ASPEN 79, the Assessment Administration is
18 signed by Gurpreet Sidhu, RN on February 18, 2020; at Bates No. ASPEN 123, the Assessment
19 Administration is signed by Gupreet Sidhu, RN on February 17, 2020 and February 28, 2020,
20 Nayely Vazquez Rodriguez, CNA on February 20, 2020, and Soksrey Leu, LVN on February
21 20, 2020; at Bates No. ASPEN 124, the Assessment Administration is signed by Soksrey Leu,
22 LVN on February 20, 2020, Mallely Del Rio, SSA on February 22, 2020, Mary Jo Esposito on
23 February 24, 2020, Fred Mah, Director of Rehabilitation on February 24, 2020, and Gurpreet
24 Sidhu, RN on February 28, 2020; at Bates No. ASPEN 125, the Assessment Administration is
25 signed by Gurpreet Sidhu, on February 28, 2020; at Bates No. ASPEN 138, the Assessment
26 Administration is signed by Gurpreet Sidhu, RN on February 28, 2020; at Bates No. ASPEN
27 165, the Assessment Administration is signed by Mary Jo Esposito on February 26, 2020,
28 Nayely Vazquez Rodriguez, CN on February 26, 2020, and Gurpreet Sidhu, RN on February
- 14 -
s:\6446.42251 nutt\law and motion\do draft
oppositions\opp.sepstmt.mtcrogs.001.asfc.d.docx
DEFENDANTS OPPOSITION TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL
FORM INTERROGATORIES, SET ONE and SPECIAL INTERROGATORIES, SET ONE TO ASFC, LLC dba SIERRA
1 28, 2020.
2 PLAINTIFFS’ BASIS FOR FURTHER RESPONSE TO SPECIAL INTERROGATORY
3 NO. 28:
4 This interrogatory seeks the date of each reassessment. Defendant’s response is
5 nonresponsive and evasive, because it tells Plaintiff
Preview
1 BRETT SCHOEL, STATE BAR NO. 224212 BSchoel@ljdfa.com 2 DANIELLE OTERO, STATE BAR NO. 338421 dotero@ljdfa.com E-FILED 3 LA FOLLETTE, JOHNSON, 3/21/2022 3:53 PM DeHAAS, FESLER & AMES Superior Court of California 4 655 University Avenue, Suite 119 County of Fresno Sacramento, California 95825-6746 By: I. Herrera, Deputy 5 Telephone (916) 563-3100 • Facsimile (916) 565-3704 6 Attorneys for Defendants ASFC, LLC dba SIERRA VISTA HEALTHCARE and ASPEN 7 SKILLED HEALTHCARE, INC. 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF FRESNO LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES 10 11 LOLA NUTT, by and through her Successor CASE NO.: 21CECG00531 in Interest, HENRY NUTT; and HENRY 12 NUTT, KEVIN NUTT, VASHON NUTT; DEFENDANTS OPPOSITION TO PLAINTIFF’S and TYRONE NUTT, individually, SEPARATE STATEMENT IN SUPPORT OF 13 MOTION TO COMPEL FORM Plaintiffs, INTERROGATORIES, SET ONE and SPECIAL 14 INTERROGATORIES, SET ONE TO ASFC, LLC vs. dba SIERRA VISTA HEALTHCARE 15 ASFC, LLC dba SIERRA VISTA TRIAL DATE: 08/07/23 16 HEALTHCARE; ASPEN SKILLED ACTION FILED: 02/23/21 HEALTHCARE, INC; and DOES 1-25, 17 inclusive, Assigned to Kimberly Gaab, 503, for all purposes including trial 18 Defendants. 19 20 FORM INTERROGATORY NO. 12.2: 21 Have YOU OR ANYONE ACTING ON YOUR BEHALF interviewed any individual 22 concerning the INCIDENT? If so, for each individual state: 23 (a) the name, ADDRESS, and telephone number of the individual interviewed; 24 (b) the date of the interview; and 25 (c) the name, ADDRESS, and telephone number of the PERSON who conducted the 26 interview. 27 /// 28 /// -1- s:\6446.42251 nutt\law and motion\do draft oppositions\opp.sepstmt.mtcrogs.001.asfc.d.docx DEFENDANTS OPPOSITION TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FORM INTERROGATORIES, SET ONE and SPECIAL INTERROGATORIES, SET ONE TO ASFC, LLC dba SIERRA 1 DEFENDANT’S RESPONSE TO FORM INTERROGATORY NO. 12.2: 2 Objection. Responding Party objects to this interrogatory on the grounds it is vague and 3 ambiguous as to the terms “incident” and “interviewed,” and to the extent that it seeks 4 information protected by the attorney client privilege, and/or the attorney work product doctrine. 5 See Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214. Responding 6 Party also objects to the extent it seeks the premature disclosure of expert witness information 7 in contravention of Code of Civil Procedure section 2034, and to the extent it seeks information 8 not subject to disclosure by the Peer Review Doctrine pursuant to Evidence Code section 1157; 9 Business & Professions Code section 805(a)(1)(A); 42 C.F.R. section 483.75(o). Also see LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES 10 Alexander v. Superior Court (Saheb) (1993) 5 Cal.4th 1218, 1224, 1227-28 and Matchett v. 11 Superior Court (1974) 40 Cal.App.3d 623. 12 PLAINTIFFS’ BASIS FOR FURTHER RESPONSE TO FORM INTERROGATORY NO. 13 12.2: 14 Reason a Further Response Should Be Compelled: Recorded witness statements or 15 interviews are not automatically entitled to absolute privilege and may only be entitled to 16 qualified work product protection at best. (Coito v. Sup. Ct. (State of CA) (2012) 54 Cal.4th 480, 17 485.) Witness statements may only be entitled to absolute protection if the Responding Party 18 can show that disclosure would reveal its “attorney’s impressions, conclusions, opinions, or 19 legal research or theories.” (Ibid. Code Civ. Proc., § 2018.030(a).) Responding Party “must 20 make a preliminary or foundational showing in support if its claim” and then the court should 21 make an in-camera inspection to determine whether absolute work product protection applies to 22 some or all of the material. (Coito, supra, at p. 499-500.) If not, then the items may be subject 23 to discovery if plaintiff can show that “denial of discovery will unfairly prejudice [him/her] in 24 preparing [his/her] claim…or will result in an injustice.” (Ibid. Code Civ. Proc., § 2018.030(b).) 25 Here, defendant makes no factual showing that the recorded witness statements would reveal 26 counsel’s impressions apart from simply stating that they do. And denial of the discovery will 27 unfairly prejudice plaintiff because it would deprive plaintiff from statements made at or near 28 the time of the incident when witness’ memories were fresh. As to the identity of witnesses from -2- s:\6446.42251 nutt\law and motion\do draft oppositions\opp.sepstmt.mtcrogs.001.asfc.d.docx DEFENDANTS OPPOSITION TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FORM INTERROGATORIES, SET ONE and SPECIAL INTERROGATORIES, SET ONE TO ASFC, LLC dba SIERRA 1 whom Responding Party’s counsel has obtained statements, that information is not 2 automatically entitled as a matter of law to absolute or qualified work product protection either. 3 (Coito, supra, at p. 499-500; Code Civ. Proc., § 2018.030(b).) Rather, Responding Party has the 4 burden of showing that disclosure would reveal the attorney’s tactics, impressions, or evaluation 5 of the case (absolute privilege) or would result in opposing counsel taking undue advantage of 6 the attorney’s industry or efforts (qualified privilege). (Coito, supra, at p. 499-500; Code Civ. 7 Proc., § 2018.030(b).) Here, defendant will be unable to meet its burden because plaintiff is not 8 seeking the identity of witnesses interviewed by Responding Party’s attorney. Plaintiff merely 9 seeks the identity of witnesses who gave statements at or near the time of the event. In addition, LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES 10 simply because a statement was independently prepared by a witness and subsequently obtained 11 by an attorney does not constitute derivative material and therefore, is not entitled to absolute or 12 qualified work product protection. (Id. at p. 500-501.) Further, with regards to Defendant’s 13 objection on the basis of Evidence Code section 1157, this code section only applies hospitals, 14 not skilled nursing facilities. The very language of the statute says the privilege applies to 15 records or proceedings “of organized committees … in hospitals”. (Evid. Code, § 1157 16 (emphasis added).) And even if it did apply to skilled nursing facilities, it only applies to 17 “recordings or proceedings of a medical staff committee”, not the identification of witnesses 18 who may have prepared a report regarding the incident. (Santa Rosa Memorial Hospital v. Sup. 19 Ct. (1985) 174 Cal.App.3d 711, 727.) Further, there are many exceptions to this limited privilege 20 as it applies to “hospitals”. (See e.g., Brown v. Superior Court (1985) 168 Cal.App.3d 489, 501 21 (the fact of the evaluation is not privileged); see also Santa Rosa Mem. Hosp. v. Superior Court 22 (1985) 174 Cal.App.3d 711, 724 (information developed by hospital administrators does not 23 become privileged by being placed in medical review committee’s files.) 24 DEFENDANT’S REASONS WHY FURTHER RESPONSE TO FORM 25 INTERROGATORY NO. 12.2 SHOULD NOT BE COMPELLED: 26 Sierra Vista Healthcare provided the requested supplemental response to Form 27 Interrogatory no. 12.2. Accordingly, there is nothing further to compel. 28 -3- s:\6446.42251 nutt\law and motion\do draft oppositions\opp.sepstmt.mtcrogs.001.asfc.d.docx DEFENDANTS OPPOSITION TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FORM INTERROGATORIES, SET ONE and SPECIAL INTERROGATORIES, SET ONE TO ASFC, LLC dba SIERRA 1 FORM INTERROGATORY NO. 12.3: 2 Have YOU OR ANYONE ACTING ON YOUR BEHALF obtained a written or recorded 3 statement from any individual concerning the INCIDENT? If so, for each statement state: 4 (a) the name, ADDRESS, and telephone number of the individual from whom the 5 statement was obtained; 6 (b) the name, ADDRESS, and telephone number of the individual who obtained the 7 statement; 8 (c) the date the statement was obtained; and 9 (d) the name, ADDRESS, and telephone number of each PERSON who has the LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES 10 original statement or a copy. 11 DEFENDANT’S RESPONSE TO FORM INTERROGATORY NO. 12.3: 12 Objection. Responding Party objects to this interrogatory on the grounds it is vague and 13 ambiguous as to the terms “incident” and “statement,” and to the extent that it seeks information 14 protected by the attorney client privilege, and/or the attorney work product doctrine. See Nacht 15 & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214. Responding Party also 16 objects to the extent it seeks the premature disclosure of expert witness information in 17 contravention of Code of Civil Procedure section 2034, and to the extent it seeks information not 18 subject to disclosure by the Peer Review Doctrine pursuant to Evidence Code section 1157; 19 Business & Professions Code section 805(a)(1)(A); 42 C.F.R. section 483.75(o). Also see 20 Alexander v. Superior Court (Saheb) (1993) 5 Cal.4th 1218, 1224, 1227-28 and Matchett v. 21 Superior Court (1974) 40 Cal.App.3d 623. Furthermore, Responding Party objects to the extent 22 this interrogatory calls for a compilation of Decedent’s own medical records to which Plaintiffs 23 have greater access than this Responding Party. 24 PLAINTIFFS’ BASIS FOR FURTHER RESPONSE TO FORM INTERROGATORY NO. 25 12.3: 26 Recorded witness statements or interviews are not automatically entitled to absolute 27 privilege and may only be entitled to qualified work product protection at best. (Coito v. Sup. 28 Ct. (State of CA) (2012) 54 Cal.4th 480, 485.) Witness statements may only be entitled to -4- s:\6446.42251 nutt\law and motion\do draft oppositions\opp.sepstmt.mtcrogs.001.asfc.d.docx DEFENDANTS OPPOSITION TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FORM INTERROGATORIES, SET ONE and SPECIAL INTERROGATORIES, SET ONE TO ASFC, LLC dba SIERRA 1 absolute protection if the Responding Party can show that disclosure would reveal its “attorney’s 2 impressions, conclusions, opinions, or legal research or theories.” (Ibid. Code Civ. Proc., § 3 2018.030(a).) Responding Party “must make a preliminary or foundational showing in support 4 if its claim” and then the court should make an in camera inspection to determine whether 5 absolute work product protection applies to some or all of the material. (Coito, supra, at p. 499- 6 500.) If not, then the items may be subject to discovery if plaintiff can show that “denial of 7 discovery will unfairly prejudice [him/her] in preparing [his/her] claim…or will result in an 8 injustice.” (Ibid. Code Civ. Proc., § 2018.030(b).) Here, defendant makes no factual showing 9 that the recorded witness statements would reveal counsel’s impressions apart from simply LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES 10 stating that they do. And denial of the discovery will unfairly prejudice plaintiff because it would 11 deprive plaintiff from statements made at or near the time of the incident when witness’ 12 memories were fresh. 13 As to the identity of witnesses from whom Responding Party’s counsel has obtained 14 statements, that information is not automatically entitled as a matter of law to absolute or 15 qualified work product protection either. (Coito, supra, at p. 499-500; Code Civ. Proc., § 16 2018.030(b).) Rather, Responding Party has the burden of showing that disclosure would reveal 17 the attorney’s tactics, impressions, or evaluation of the case (absolute privilege) or would result 18 in opposing counsel taking undue advantage of the attorney’s industry or efforts (qualified 19 privilege). (Coito, supra, at p. 499-500; Code Civ. Proc., § 2018.030(b).) Here, defendant will 20 be unable to meet its burden because plaintiff is not seeking the identity of witnesses interviewed 21 by Responding Party’s attorney. Plaintiff merely seeks the identity of witnesses who gave 22 statements at or near the time of the event. In addition, simply because a statement was 23 independently prepared by a witness and subsequently obtained by an attorney does not 24 constitute derivative material and therefore, is not entitled to absolute or qualified work product 25 protection. (Id. at p. 500-501.) Further, with regards to Defendant’s objection on the basis of 26 Evidence Code section 1157, this code section only applies hospitals, not skilled nursing 27 facilities. The very language of the statute says the privilege applies to records or proceedings 28 “of organized committees … in hospitals”. (Evid. Code, § 1157 (emphasis added).) And even if -5- s:\6446.42251 nutt\law and motion\do draft oppositions\opp.sepstmt.mtcrogs.001.asfc.d.docx DEFENDANTS OPPOSITION TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FORM INTERROGATORIES, SET ONE and SPECIAL INTERROGATORIES, SET ONE TO ASFC, LLC dba SIERRA 1 it did apply to skilled nursing facilities, it only applies to “recordings or proceedings of a medical 2 staff committee”, not the identification of witnesses who may have prepared a report regarding 3 the incident. (Santa Rosa Memorial Hospital v. Sup. Ct. (1985) 174 Cal.App.3d 711, 727.) 4 Further, there are many exceptions to this limited privilege as it applies to “hospitals”. (See e.g., 5 Brown v. Superior Court (1985) 168 Cal.App.3d 489, 501 (the fact of the evaluation is not 6 privileged); see also Santa Rosa Mem. Hosp. v. Superior Court (1985) 174 Cal.App.3d 711, 724 7 (information developed by hospital administrators does not become privileged by being placed 8 in medical review committee’s files.) 9 DEFENDANT’S REASONS WHY FURTHER RESPONSE TO FORM LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES 10 INTERROGATORY NO. 12.3 SHOULD NOT BE COMPELLED: 11 Sierra Vista Healthcare provided the requested supplemental response to Form 12 Interrogatory no. 12.3. Accordingly, there is nothing further to compel. 13 FORM ITERROGATORY NO. 15.1: 14 Identify each denial of a material allegation and each special or affirmative defense in 15 your pleadings and for each: (a) state all facts upon which you base the denial or special or 16 affirmative defense; (b) state the names, ADDRESSES, and telephone numbers of all PERSONS 17 who have knowledge of those facts; and (c) identify all DOCUMENTS and other tangible things 18 that support your denial or special or affirmative defense, and state the name, ADDRESS, and 19 telephone number of the PERSON who has each DOCUMENT. 20 DEFENDANT’S RESPONSE TO FORM INTERROGATORY NO. 15.1: 21 Responding Party filed its demurrer and motion to strike upon its statutory right to do so. 22 Accordingly, Responding Party reserves its right to propound affirmative defenses in response 23 to unverified complaint provided as a matter of right in order to protect its right to assert such 24 defenses in the event that discovery and investigation were to reveal a basis for same once the 25 court provides a response to the demurrer and motion to strike. Responding Party is unaware at 26 this juncture of the identity of all persons who have knowledge or who may have knowledge of 27 the facts supporting one or more of the affirmative defenses in this pleading. Other than the 28 parties to this action and their agents and attorneys, as well as those individuals identified in the -6- s:\6446.42251 nutt\law and motion\do draft oppositions\opp.sepstmt.mtcrogs.001.asfc.d.docx DEFENDANTS OPPOSITION TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FORM INTERROGATORIES, SET ONE and SPECIAL INTERROGATORIES, SET ONE TO ASFC, LLC dba SIERRA 1 medical records of Decedent, Lola Nutt, and those individuals known to Plaintiffs themselves, 2 Responding Party is unaware of all the individuals who may actually have knowledge of the 3 supporting facts. Discovery and investigation are continuing and aside from the pleadings, 4 medical records obtained in discovery conducted to date, Responding Party is currently unaware 5 of the existence of any other documents and/or tangible things that deal or may support his 6 denials or special affirmative defenses. Based upon the facts which will be developed by way of 7 future investigation and discovery, Responding Party reserves its right to modify, alter and/or 8 amend this response accordingly, up to and including the time of trial. Finally, Responding Party 9 objects to this interrogatory on grounds that it potentially calls for information obtained from a LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES 10 consulting expert witness, or the identity of any consulting expert witness, which information is 11 protected from disclosure by the attorney work-product privilege and Code of Civil Procedure 12 section 2034.210, et seq. Responding Party has no duty to identify any expert witnesses, whether 13 they are going to testify or not, except pursuant to Code of Civil Procedure section 2034.210, et 14 seq. This interrogatory also potentially calls for disclosure of information protected from 15 discovery by the attorney-client privilege. 16 DEFENDANT’S SUPPLEMENTAL RESPONSE TO FORM INTERROGATORY NO. 17 15.1: 18 Subject to and without waiving the foregoing objections, Responding Party responds: 19 Responding Party contends Ms. Nutt passed away from causes outside the control of defendants 20 Aspen Healthcare and ASFC, LLC dba Sierra Vista Healthcare. Further, defendants Aspen 21 Healthcare and ASFC, LLC dba Sierra Vista Healthcare and their employees performed all 22 duties required by them above and beyond the applicable standard of care 23 PLAINTIFFS’ BASIS FOR FURTHER RESPONSE TO FORM INTERROGATORY NO. 24 15.1: 25 Interrogatory No. 15.1 seeks facts, witnesses, and documents supporting each denial of a 26 material allegation and each affirmative defense raised in the defendants’ Answer. Form 27 Interrogatory No. 15.1 is a judicially-approved discovery tool that is specifically authorized by 28 -7- s:\6446.42251 nutt\law and motion\do draft oppositions\opp.sepstmt.mtcrogs.001.asfc.d.docx DEFENDANTS OPPOSITION TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FORM INTERROGATORIES, SET ONE and SPECIAL INTERROGATORIES, SET ONE TO ASFC, LLC dba SIERRA 1 the Code. Thus, any objections to it are meritless. Code of Civil Procedure section 2030.010(b) 2 specifically states: 3 An interrogatory may relate to whether another party is making a certain contention, or 4 to the facts, witnesses, and writings on which a contention is based. An interrogatory is not 5 objectionable because an answer to it involves an opinion or contention that relates to fact or the 6 application of law to fact or would be based on information obtained or legal theories developed 7 in anticipation of litigation or in preparation for trial. (Emphasis added; see also Code Civ. Proc., 8 § 2017.010 (“Discovery may relate to the claim or defense of the party seeking discovery or of 9 any other party to the action. Discovery may be obtained of the identity and location of persons LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES 10 having knowledge of any discoverable matter, as well as of the existence, description, nature, 11 custody, condition, and location of any document, electronically stored information, tangible 12 thing, or land or other property.”) 13 The purpose of discovery is to “test the pleadings” and enable parties to determine what 14 the opponent’s claims are, and what facts they relied upon to support their contentions. (Code 15 Civ. Proc., § 2030.010(b); Burke v. Superior Court (1969) 71 Cal.2d 276, 281; Singer v. 16 Superior Court (Contra Costa County) (1960) 54 Cal.2d 318, 323-325.) The information sought 17 by this interrogatory is “of a nature peculiarly within the mind of defendant”. (Singer v. Superior 18 Court, supra, at p. 324.) Here, Defendant claims it is unaware of any witnesses and documents 19 outside of what is contained in the pleadings, medical records obtained in discovery conducted 20 to date. However, Defendant fails to address what, if any, facts it knows to support his pleaded 21 defenses and requiring an answer is not oppressive. (Id. at p. 326.) If Defendants know of any 22 facts which support any of its defenses, they must so state. It has now been 6 months since the 23 complaint was first filed. Defendants have had more than enough time to commence sufficient 24 investigation and discovery to provide a response. Even so, requiring a response now will not 25 limit Defendants from relying on subsequently discovered facts. 26 /// 27 /// 28 /// -8- s:\6446.42251 nutt\law and motion\do draft oppositions\opp.sepstmt.mtcrogs.001.asfc.d.docx DEFENDANTS OPPOSITION TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FORM INTERROGATORIES, SET ONE and SPECIAL INTERROGATORIES, SET ONE TO ASFC, LLC dba SIERRA 1 DEFENDANT’S REASONS WHY FURTHER RESPONSE TO FORM 2 INTERROGATORY NO. 15.1 SHOULD NOT BE COMPELLED: 3 Sierra Vista Healthcare provided the requested supplemental response to Form 4 Interrogatory no. 15.1. Plaintiffs are not satisfied with Defendant’s answer. At the time of 5 Plaintiffs’ motion to compel, there was a pending demurrer, and no Answer had been filed in 6 the instant case. Since Plaintiffs filed a First Amended Complaint and Defendant provided an 7 Answer on December 23, 2021. Once additional discovery is completed, a supplemental 8 response will be prepared. However, discovery continues and Defendant is unaware of 9 additional records or facts supporting its contentions outside of decedent, Ms. Nutt’s, medical LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES 10 record which has been produced in response to discovery. In addition, once Defendant has had 11 the opportunity to take Plaintiffs’ depositions, and expert disclosures have been made, 12 Defendant will be better suited to respond to this interrogatory. 13 SPECIAL INTERROGATORY NO. 5: 14 Please IDENTIFY all PERSONS who were responsible for the day-to-day operations of 15 the FACILITY during PLAINTIFF's residency. 16 DEFENDANT’S RESPONSE TO SPECIAL INTERROGATORY NO. 5: 17 Objection. This request is vague and ambiguous as to the term “day-to-day operations.” 18 Subject to and without waiving the foregoing objection, Defendant responds as follows: During 19 PLAINTIFF’s residency at ASFC, LLC dba SIERRA VISTA HEALTHCARE, Jordan Holt was 20 the Administrator and Ptolomeo (“John”) Causing was the Director of Nursing. These 21 individuals may be contacted through counsel. 22 PLAINTIFFS’ BASIS FOR FURTHER RESPONSE TO SPECIAL INTERROGATORY 23 NO. 5: 24 This is non-responsive and evasive. Defendant’s response does not answer the questions 25 of who was responsible for the day-to-day operations. During meet and confer efforts, Plaintiff 26 asked Defendant to clarify if by this response, Defendant mean that the administrator and the 27 director of nursing were responsible for the day-to-day operations of the facility. Defendant 28 refused to clarify. A response to interrogatories must be “as complete and straightforward as the -9- s:\6446.42251 nutt\law and motion\do draft oppositions\opp.sepstmt.mtcrogs.001.asfc.d.docx DEFENDANTS OPPOSITION TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FORM INTERROGATORIES, SET ONE and SPECIAL INTERROGATORIES, SET ONE TO ASFC, LLC dba SIERRA 1 information reasonably available to the responding party permits. If an interrogatory cannot be 2 answered completely, it shall be answered to the extent possible.” (Code Civ. Proc., § 3 2030.220(a), (b).) This information is relevant to Plaintiff’s claim for enhanced remedies under 4 Welfare and Institutions Code section 15657 and Civil Code section 3294. In order to obtain 5 enhanced remedies against Defendants, Plaintiff must prove that an officer, a director, or a 6 managing agent of Defendants authorized or ratified the wrongful conduct of their employees 7 or had advanced knowledge of the unfitness of their employees. In order to conduct discovery 8 to support these claims, it is essential that Plaintiffs know the identities of Defendant’s key 9 corporate actors and understand the structure of ownership and management within the LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES 10 company. Knowing the organizational structure of the facility is paramount to being able to 11 determine who was responsible for training, monitoring, and supervising the employees. It is 12 fundamentally unfair to have the burden of proof on the issue of ratification of misconduct yet 13 preclude plaintiff from determining who was in a position of power to authorize/ratify the 14 misconduct. 15 DEFENDANT’S REASONS WHY FURTHER RESPONSE TO SPECIAL 16 INTERROGATORY NO. 5 SHOULD NOT BE COMPELLED: 17 Defendant’s answer to Plaintiffs’ special interrogatory is clear. The Administrator, 18 Jordan Holt, and Ptolomeo (“John”) Causing, the Director of Nursing, were responsible for the 19 day to day operations of the facility. Plaintiffs are requesting additional questions that are not 20 posed in this special interrogatory. 21 Further, Defendant produced the job descriptions of both the Administrator and the 22 Director of Nursing. See Bates No. 001-Administrator_001-001-Administrator_008, and 002- 23 Director Nursing Services_001-002-Director Nursing Services_010, attached hereto as Exhibit 24 “A”. 25 According to the Administrator job description, “The primary purpose of your job 26 description is to direct the day-to-day functions of the facility in accordance with current federal, 27 state, and local standards, guidelines, and regulations that govern nursing facilities to assure that 28 the highest degree of quality care can be provided to our residents at all times.” See id. - 10 - s:\6446.42251 nutt\law and motion\do draft oppositions\opp.sepstmt.mtcrogs.001.asfc.d.docx DEFENDANTS OPPOSITION TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FORM INTERROGATORIES, SET ONE and SPECIAL INTERROGATORIES, SET ONE TO ASFC, LLC dba SIERRA 1 According to the Director of Nursing job description, “The primary purpose of your job 2 position is to plan, organize, develop and direct the overall operation of our Nursing Service 3 Department in accordance with current federal, state, and local standards, guidelines, and 4 regulations that govern our facility, and as may be directed by the Administrator and the Medical 5 Director, to ensure that the highest degree of quality care is maintained at all times.” See id. 6 Based thereon, Defendant identified the Administrator and Director of Nursing. It is 7 unclear what additional information needs to be provided. 8 SPECIAL INTERROGATORY NO. 6: 9 Please IDENTIFY all PERSONS who were members of the GOVERNING BODY of LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES 10 FACILITY. GOVERNING BODY means as set forth in 42 CFR 483.410 those individuals that 11 exercise general policy, budget, and operating direction over the facility, set the qualifications 12 of the administrator and appoint the administrator. 13 DEFENDANT’S RESPONSE TO SPECIAL INTERROGATORY NO. 6: 14 Objection. This interrogatory is vague and ambiguous as to the term “members of the 15 GOVERNING BODY.” Subject to and without waiving the foregoing objection, Defendant 16 responds as follows: The managing members of ASFC, LLC dba SIERRA VISTA 17 HEALTHCARE during the period of PLAINTIFF’s residency were: Jay Brady, Jeff Bradshaw 18 and Ryan Case. These individuals may be contacted through counsel. 19 PLAINTIFF’S BASIS FOR FURTHER RESPONSE TO SPECIAL INTERROGATORY 20 NO. 6: 21 This is non-responsive and evasive. Managing members and members of the Governing 22 Body are not the same. “Governing Body” is defined in the interrogatory as “those individuals 23 that exercise general policy, budget, and operating direction over the facility, set the 24 qualifications of the administrator and appoint the administrator,” as set forth in 42 CFR 25 483.410. 26 This information is relevant to Plaintiff’s claim for enhanced remedies under Welfare and 27 Institutions Code section 15657 and Civil Code section 3294. In order to obtain enhanced 28 remedies against Defendants, Plaintiff must prove that an officer, a director, or a managing agent - 11 - s:\6446.42251 nutt\law and motion\do draft oppositions\opp.sepstmt.mtcrogs.001.asfc.d.docx DEFENDANTS OPPOSITION TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FORM INTERROGATORIES, SET ONE and SPECIAL INTERROGATORIES, SET ONE TO ASFC, LLC dba SIERRA 1 of Defendants authorized or ratified the wrongful conduct of their employees or had advanced 2 knowledge of the unfitness of their employees. In order to conduct discovery to support these 3 claims, it is essential that Plaintiffs know the identities of Defendant’s key corporate actors and 4 understand the structure of ownership and management within the company. Knowing the 5 organizational structure of the facility is paramount to being able to determine who was 6 responsible for training, monitoring, and supervising the employees. It is fundamentally unfair 7 to have the burden of proof on the issue of ratification of misconduct yet preclude plaintiff from 8 determining who was in a position of power to authorize/ratify the misconduct. 9 DEFENDANT’S REASONS WHY FURTHER RESPONSE TO SPECIAL LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES 10 INTERROGATORY NO. 6 SHOULD NOT BE COMPELLED: 11 Jay Brady, Jeff Bradshaw, and Ryan Case are the managing members, or “owners” of 12 Sierra Vista Healthcare. In addition, Defendant produced Sierra Vista Healthcare’s 13 Ownership/Operator Information at Bates No. ASFC Ownership_001-ASFC Ownership_002, 14 attached hereto as “Exhibit B.” 15 Defendant’s response is responsive, and no additional response is warranted. 16 SPECIAL INTERROGATORY NO. 7: 17 Do you have an excess insurance liability policy that insures you for the damages or 18 claims arising out of this lawsuit? 19 DEFENDANT’S RESPONSE TO SPECIAL INTERROGATORY NO. 7: 20 Objection. Defendant objects to this request on grounds that the request is not reasonably 21 calculated to lead to the discovery of admissible evidence. 22 SUPPLEMENTAL RESPONSE TO SPECIAL INTERROGATORY NO. 7: 23 Objection. Defendant objects to this request on grounds that the request is not reasonably 24 calculated to lead to the discovery of admissible evidence. Subject to and without waiving the 25 foregoing objections, Defendant responds as follows: No. 26 PLAINTIFFS’ BASIS FOR FURTHER RESPONSE TO SPECIAL INTERROGATORY 27 NO. 7: 28 - 12 - s:\6446.42251 nutt\law and motion\do draft oppositions\opp.sepstmt.mtcrogs.001.asfc.d.docx DEFENDANTS OPPOSITION TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FORM INTERROGATORIES, SET ONE and SPECIAL INTERROGATORIES, SET ONE TO ASFC, LLC dba SIERRA 1 Insurance policies are properly subject to discovery. (Code Civ. Proc., § 2017.210; 2 Irvington-Moore, Inc. v. Super. Ct. (1993) 14 Cal.App.4th 733, 741.) Insurance information is 3 essential for settlement purposes, and this makes it “relevant to the subject matter” of the action. 4 (Laddon v. Super.Ct. (1959) 167 Cal.2d 391, 396; Wiel & Brown, Cal. Practice Guide: Civil 5 Procedure Before Trial (The Rutter Group) ¶ 8:92.) A party may also discover whether the 6 defendant's insurance carrier is disputing coverage of the claim involved in the action ... but not 7 the nature and substance of the dispute. (Code Civ. Proc., § 2017.210.) As such, a further 8 response is warranted. 9 DEFENDANT’S REASONS WHY FURTHER RESPONSE TO SPECIAL LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES 10 INTERROGATORY NO. 7 SHOULD NOT BE COMPELLED: 11 Defendant supplemented its response on August 30, 2021. Therefore, no further response 12 is required. 13 SPECIAL INTERROGATORY NO. 8: 14 Do you have a burning limits insurance policy that insures you for the damages or claims 15 arising out of this lawsuit? 16 RESPONSE TO SPECIAL INTERROGATORY NO. 8: 17 Objection. Defendant objects to this request on grounds that the request is not reasonably 18 calculated to lead to the discovery of admissible evidence. 19 SUPPLEMENTAL RESPONSE TO SPECIAL INTERROGATORY NO. 8: 20 Objection. Defendant objects to this request on grounds that the request is not reasonably 21 calculated to lead to the discovery of admissible evidence. Subject to and without waiving the 22 foregoing objections, Defendant responds as follows: No. 23 PLAINTIFFS’ BASIS FOR FURTHER RESPONSE TO SPECIAL INTERROGATORY 24 NO. 8: 25 Insurance policies are properly subject to discovery. (Code Civ. Proc., § 2017.210; 26 Irvington-Moore, Inc. v. Super. Ct. (1993) 14 Cal.App.4th 733, 741.) Insurance information is 27 essential for settlement purposes, and this makes it “relevant to the subject matter” of the action. 28 (Laddon v. Super.Ct. (1959) 167 Cal.2d 391, 396; Wiel & Brown, Cal. Practice Guide: Civil - 13 - s:\6446.42251 nutt\law and motion\do draft oppositions\opp.sepstmt.mtcrogs.001.asfc.d.docx DEFENDANTS OPPOSITION TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FORM INTERROGATORIES, SET ONE and SPECIAL INTERROGATORIES, SET ONE TO ASFC, LLC dba SIERRA 1 Procedure Before Trial (The Rutter Group) ¶ 8:92.) A party may also discover whether the 2 defendant's insurance carrier is disputing coverage of the claim involved in the action ... but not 3 the nature and substance of the dispute. (Code Civ. Proc., § 2017.210.) As such, a further 4 response is warranted. 5 DEFENDANT’S REASONS WHY FURTHER RESPONSE TO SPECIAL 6 INTERROGATORY NO. 8 SHOULD NOT BE COMPELLED: 7 Defendant supplemented its response on August 30, 2021. Therefore, no further response 8 is required. 9 SPECIAL INTERROGATORY NO. 28: LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES 10 Please identify the date of each reassessment that was conducted with regards to 11 PLAINTIFF during her residency at the FACILITY, as required by the California Code of 12 Regulations, Title 22, section 72311. 13 DEFENDANT’S RESPONSE TO SPECIAL INTERROGATORY NO. 28: 14 Objection. This request lacks proper foundation. Subject to and without waiving the 15 foregoing objection, Defendant responds as follows: According to the Sierra Vista Healthcare 16 medical records at Bates No. ASPEN 78, the Assessment Administration is signed by Soksrey 17 Leu, LVN on February 17, 2020; at Bates No. ASPEN 79, the Assessment Administration is 18 signed by Gurpreet Sidhu, RN on February 18, 2020; at Bates No. ASPEN 123, the Assessment 19 Administration is signed by Gupreet Sidhu, RN on February 17, 2020 and February 28, 2020, 20 Nayely Vazquez Rodriguez, CNA on February 20, 2020, and Soksrey Leu, LVN on February 21 20, 2020; at Bates No. ASPEN 124, the Assessment Administration is signed by Soksrey Leu, 22 LVN on February 20, 2020, Mallely Del Rio, SSA on February 22, 2020, Mary Jo Esposito on 23 February 24, 2020, Fred Mah, Director of Rehabilitation on February 24, 2020, and Gurpreet 24 Sidhu, RN on February 28, 2020; at Bates No. ASPEN 125, the Assessment Administration is 25 signed by Gurpreet Sidhu, on February 28, 2020; at Bates No. ASPEN 138, the Assessment 26 Administration is signed by Gurpreet Sidhu, RN on February 28, 2020; at Bates No. ASPEN 27 165, the Assessment Administration is signed by Mary Jo Esposito on February 26, 2020, 28 Nayely Vazquez Rodriguez, CN on February 26, 2020, and Gurpreet Sidhu, RN on February - 14 - s:\6446.42251 nutt\law and motion\do draft oppositions\opp.sepstmt.mtcrogs.001.asfc.d.docx DEFENDANTS OPPOSITION TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FORM INTERROGATORIES, SET ONE and SPECIAL INTERROGATORIES, SET ONE TO ASFC, LLC dba SIERRA 1 28, 2020. 2 PLAINTIFFS’ BASIS FOR FURTHER RESPONSE TO SPECIAL INTERROGATORY 3 NO. 28: 4 This interrogatory seeks the date of each reassessment. Defendant’s response is 5 nonresponsive and evasive, because it tells Plaintiff