Motion to Compel in Josefina Ortega vs. Peer Services, Inc| Trellis.Law

On March 19, 2019 a Motion,Ex Parte was filed involving a dispute between Ortega, Josefina, and Mennonite Brethren Homes, Inc, Peer Services, Inc, for 42 Unlimited - Other Complaint (not specified) in the District Court of Fresno County.

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GARCIA & ARTIGLIERE
Stephen M. Garcia, State Bar No. 123338 E-FILED
edocs@lawgarcia.com 10/8/2019 11:21 AM
One World Trade Center, Suite 1950 Superior Court of California
Long Beach, California 90831 County of Fresno
Telephone: (562) 216-5270
Facsimile: (562) 216-5271 By: C. York, Deputy

Attorneys for Plaintiff

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF FRESNO, CENTRAL DIVISION

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11 JOSEFINA ORTEGA, by and through her | CASE NO. 19CECG00994
Re Successor in Interest, Noelia Ortega,
|
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Es 12 PLAINTIFF’S NOTICE OF MOTION AND
Cae Plaintiff, MOTION TO COMPEL FURTHER
Aes
ame 13 RESPONSES FROM DEFENDANT
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ywze VS. MENNONITE BRETHREN HOMES, INC.
Bas 14 | TO SPECIAL INTERROGATORIES, SET
“os PEER SERVICES, INC.; MENNONITE | ONE; MEMORANDUM OF POINTS AND
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F< 15 BRETHREN HOMES, INC.; and DOES 1 AUTHORITIES; DECLARATION IN
oa through 250, inclusive, ' SUPPORT THEREOF; REQUEST FOR
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Defendants.
MONETARY SANCTIONS
DEFENDANT MENNONITE BRETHREN
AGAINST

<8 17 HOMES, INC. AND ITS ATTORNEYS OF
RECORD LOW, MCKINLEY, BALERIA
18 & SALENKO, LLP

19 Filed Concurrently with Separate Statement;

20 Date: December 11, 2019
Time: 3:30 p.m.
21 Dept.: 403

22 PLAINTIFF HAS COMPLIED WITH
LOCAL RULE 2.1.17
23
Assigned for All Purposes to: Hon. Rosemary
24 McGuire, Dept. 403

25 Action Filed: March 20, 2019
Trial Date: None Set
26
TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on December 11, 2019 at 8:30 a.m. in Department 403
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PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL FURTHER RESPONSES FROM.
DEFENDANT MENNONITE BRETHREN HOMES, INC. TO SI, SET ONE
of the above referenced court, located at 1130 “O” Street, Fresno, California, 93724, Plaintiff,

Josefina Ortega, by and through her Successor in Interest, Noelia Ortega will move, and does hereby

move, for an order compelling Defendant, Mennonite Brethren Homes, Inc. (“Defendant”), to

provide further verified responses to Plaintiff's Special Interrogatories, Set One Nos. 1, 6, 7, 8, 11,

14, 15, 18, 21, 24, 25, 26, 28-39, 41, 42, 43, 44, 76-79, 92, 94, 95, 96, 97, 98, 100, 101, 102, 104,
106, 113, 115, 117, 118, 119, and 120, within ten days of this hearing. Plaintiff further requests that

an award of monetary sanctions in favor of Plaintiff, and against Defendant, Mennonite Brethren

Homes, Inc. and its attorney of record, Low, McKinley, Baleria & Salenko, LLP, jointly and

severally be imposed in the amount of $4,860.00 and payable to Garcia & Artigliere within ten days

10 of the hearing on this motion.

11 This motion is made pursuant to California Code of Civil Procedure §§2023.010, 2023.020,

12 2030.250 and 2030.300, and is based upon Defendant Mennonite Brethren Homes, Inc.’s failure to

13 provide adequate responses to written discovery.

14 Plaintiff prays that the Defendant be ordered to provide further verified answers to the

15 inquiries within ten days from the hearing of this motion.

16 This Motion shall be based on this Notice of Motion and Motion, the Memorandum of Points

17 and Authorities and exhibits filed herewith, the attached Declaration of Stephen M. Garcia, the

18 concurrently filed Separate Statement, and all such other and further oral and documentary evidence

19 as may be presented at the time of the hearing.

20 DATED: October 3, 2019 GARCIA & ARTIGLIERE

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23

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V Stephen M. Garcia
Attorneys for Plainti tJ
25

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PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL FURTHER RESPONSES FROM
DEFENDANT MENNONITE BRETHREN HOMES, INC. TO SI, SET ONE
MEMORANDUM OF POINTS AND AUTHORITIES

I INTRODUCTION
This motion is a necessary result of Defendant Mennonite Brethren Homes, Inc.’s failure to

provide verified sufficient supplemental responses to discovery despite its promise to serve

supplemental responses during the meet and confer conference which occurred on August 27, 2019.

Il. STATEMENT OF FACTS

Plaintiff served Special Interrogatories, Set One on Defendant on June 7, 2019. Please see

Exhibit “1”. On July 9, 2019, defense counsel requested and was granted a two-week extension of

time within which to respond to discovery making the responses due on July 26, 2019. Please see

10 Exhibit “2”. On July 24, 2019, defense counsel requested a second extension of time within which

11 to respond to written discovery. Plaintiff's counsel granted a one week extension making the

12 responses due on August 2, 2019. Please see Exhibit “3”. On August 2, 2019, defense counsel

13 requested and was granted a third extension of time within which to respond to discovery to August

14 5, 2019. Please see Exhibit “4”.

15 In spite of the fact that defendant was given three extensions of time within which to

16 meaningfully respond to discovery, on August 5, 2019, Defendant served its unverified, legally

17 meritless and deficient responses to Special Interrogatories, Set One. Please see Exhibit “5”.

18 In an attempt to meet and confer as to the infirmities of Defendant’s objections, Plaintiffs

19 counsel sent a comprehensive meet and confer letter on August 13, 2019, which invited as follows:

20 Nonetheless, in our ongoing efforts to meet and confer, we will call you shortly to
schedule a telephonic meet and confer conference convenient with your calendar
21 such that the conference occurs within the ten day time period referenced above.
We will make ourselves available on any date and at any time of your choosing
22 within said ten day time frame for a conference set with our assistant. Should you
be unavailable when we call please call my assistant Stephanie Barenos and
23 schedule a telephonic meet and confer to occur within said ten day time frame.

24 And even should you refuse to timely participate in the invited telephonic meet and
confer conference, should we receive lawful, complete, and appropriate responses
25 to any category of inquiry prior to the date upon which your opposition to any filed
motion is due, we will gladly withdraw from the Court’s attention all categories of
26 inquiry to which we receive a complete and lawfully appropriate response. Simply,
our goal is to acquire the information to which the Defendant is entitled to discover
27 in a timely fashion. In doing so, the Plaintiff is furthering the goals of the Court as
expressed in the Civil Discovery Act and Trial Delay Reduction Act.
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PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL FURTHER RESPONSES FROM
DEFENDANT MENNONITE BRETHREN HOMES, INC. TO SI, SET ONE
Please see Exhibit “6”, without attachments.

On August 14, 2019, Ms. Barenos of Plaintiff's counsel’s office called defense counsel’s

office as promised to schedule a telephonic meet and confer, leaving a voicemail message with

“June”, an assistant to return the call. Please see Declaration of Stephen M. Garcia §6. On August

27, 2019, counsel participated in a telephonic meet and confer. during the call, defense counsel

agreed to provide further verified, supplemental responses by September 18, 2019. The parties

further agreed to schedule another meet and confer thereafter regarding any discovery still at issue.

Please see Exhibit “7”.

In addition, with respect to the identification of witnesses, plaintiffs counsel revised the

10 previously proposed stipulation regarding former employees in accordance with the meet and confer

11 discussion and enclosed a copy for defense counsel to sign and return for filing with the Court.

12 Defense counsel failed to return a signed copy of the proposed stipulation. Jd. Regarding Special

13 Interrogatory Nos. 118 and 119, defense counsel advised that he would stand on the objections. Id.

14 On August 29, 2019, plaintiffs counsel filed and served a Request for Pretrial Conference

15 as required by Fresno Superior Court Local Rule 2.1.17 in order to resolve the outstanding discovery

16 disputes following the meet and confer of the parties. Please see Exhibit “8”. Defendant’s

17 opposition was due on September 10, 2019, however, defendant failed to oppose the request.

18 On September 24, 2019, the Court denied the Request for Pretrial Conference and gave

19 permission for plaintiff to file motions to compel on the issues in dispute. Please see Exhibit “9”.

20 On September 25, 2019, defendant served further responses to Special Interrogatories, Set

21 One, Nos. 76, 77, and 78, only. Please see Exhibit “10”.

22 On September 27, 2019, plaintiff's counsel sent a meet and confer letter addressing the

23 continued deficiencies in defendant’s unverified discovery responses. Please see Exhibit “11”.

24 To date, Defense has failed to provide sufficient supplemental responses to Plaintiffs

25 Special Interrogatories, Set One Nos. 1, 6, 7, 8, 11, 14, 15, 18, 21, 24, 25, 26, 28-39, 41, 42, 43, 44,

26 76-79, 92, 94, 95, 96, 97, 98, 100, 101, 102, 104, 106, 113, 115, 117, 118, 119, and 120. Clearly,

27 this is a calculated move in this case to delay Plaintiff's efforts in obtaining the information to which

28 Plaintiffis entitled. This conduct simply invites more delay and results in the outright denial Plaintiff
2
PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL FURTHER RESPONSES FROM
DEFENDANT MENNONITE BRETHREN HOMES, INC. TO SI, SET ONE
the ability to prove her case. The Court simply cannot countenance this type of discovery abuse any

longer and should grant this motion. Please see Declaration of Stephen M. Garcia 49.

This is an Elder Abuse case brought by Plaintiff, Josefina Ortega. Plaintiff, was at all relevant

times an “elder” as that term is defined in the Welfare and Institutions Code §15610.27 under the

Elder Abuse and Dependent Adult Civil Procedure Act (EADACPA). Plaintiff needlessly suffered

severe injury which caused her to endure extreme conscious pain and suffering for an extended
period of time. These injuries include a humerus fracture and traumatic brain injury! resulting from

a fall out of bed in February of 2019 which was left untreated by the Defendants’ staff who were
unable, and incapable, of providing Plaintiff with required attention and care and services to prevent

10 falls then appropriately and promptly respond to a fall incident with head trauma, and its sequela

il has accelerated the deterioration of her health and physical condition beyond that caused by the

12 normal aging process and led directly to her loss of personal dignity, shame and humiliation,

13 extreme and unnecessary pain and suffering, degradation, anguish and emotional trauma.

14 Plaintiff's injuries are alleged to have been caused by the wrongful withholding of required

15 care to Plaintiff by the Defendant and would not have occurred but for the knowing understaffing,

16 lack of training, failure to allot sufficient economic resources, unfitness of staff in capacity and

17 competency, by the Defendant. Here, in their refusal to provide the requested information, the

18 Defendant essentially ignores the clear cause of action and prima facie element of proof of the

19 Plaintiff's Elder Abuse and Negligent Hiring and Supervision causes of action.

20 Plaintiff suffered these injuries while she was a resident at Mennonite Brethren Homes

21 (herein referred to as the “Facility”) which is located at 703 W Herbert Avenue, Reedley, California

22 93654. The Facility was at all relevant times subject to the requirements of federal and state law

23 regarding the operation of a skilled nursing facility, in the State of California.
Plaintiff requires the information sought to prove his claims, as set forth in Plaintiffs

25 Complaint, causes of action of Elder Abuse and Negligent Hiring and Supervision. Without this

27 ' Traumatic Brain Injury is an injury to the brain caused by trauma to the head such as occurs
from falls, accidents involving motor vehicles, and/or abuse. Symptoms vary greatly and may range
28 from mild memory loss to personality change to coma.
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PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL FURTHER RESPONSES FROM
DEFENDANT MENNONITE BRETHREN HOMES, INC. TO SI, SET ONE
discovery it will be impossible for the Plaintiff to meet the prima facie elements of these valid and

legally recognized causes of action. The precise information sought by these requests is fashioned
so as to acquire information which in fact will establish prima facie elements of the EADACPA

cause of action.

Given defense counsel’s lack of diligent effort, Plaintiffis left with no choice but to seek the

assistance of the Court. Defendant’s refusal to provide supplemental responses should not be

countenanced by the Court.

ill. THE COURT IS EMPOWERED TO COMPEL A FURTHER RESPONSE WHEN

INTERROGATORY RESPONSES ARE EVASIVE OR INCOMPLETE

10 Code of Civil Procedure §2030.300 provides in pertinent part that:

il (a) On receipt of a response to interrogatories, the propounding party may move
for an order compelling a further response if the propounding party deems
12 that any of the following apply:

13 (1) An answer to a particular interrogatory is evasive or incomplete.

14 (2) An exercise of the option to produce documents under Section 2030.230
is unwarranted or the required specification of those documents is
15 inadequate.

16 (3) An objection to an interrogatory is without merit or too general.
ae
17
(c) Unless notice of this motion is given within 45 days of the service of the
18 verified res} , or any supplemental verified response, or on or before
any specific later date to which the propounding party and the responding
19 party have agreed in writing, the propounding party waives any right to
compel a further response to the interrogatories.
20

21 Code of Civil Procedure §2030.300(a) and (c). (emphasis added).

22 A party may properly serve interrogatories requesting the identity and location of persons

23 having knowledge of any discoverable matter, as well as discovering the relevant facts and

24 documents response to lawful discovery. See, Code of Civil Procedure §2017.010. The

25 interrogatories at issue deal directly with the custodial care and treatment provided to Plaintiff by

26 the staff members/employees of Defendant. The inquiries request information that relates directly

27 to Plaintiffs claim that Defendant made a conscious choice to reduce costs by hiring untrained staff

28 and failing to adequately care for Plaintiff. In turn, Plaintiff suffered these injuries; and Defendant,
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PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL FURTHER RESPONSES FROM
DEFENDANT MENNONITE BRETHREN HOMES, INC. TO SI, SET ONE
Mennonite Brethren Homes, Inc. had knowledge of and ratified this wrongful conduct.

The identity and location of witnesses are discoverable and not protected by the attorney-

client privilege unless the witnesses are “consultants.” See, Code of Civil Procedure §2017.010.

Such witnesses may be actual witnesses or they may have knowledge that is based on hearsay. Smith

y. Superior Court (1961) 189 Cal.App.2d 6, 12; City of San Francisco v. Superior Court (1958) 161

Cal.App.2d 653, 656.

These California courts have reiterated that discovery provisions are to be liberally construed

in favor of disclosure. In interpreting the former Discovery Act of 1957, the Supreme Court stated,
in the seminal case of Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 378, 364 P.2d 266,

10 that disclosure in discovery exists as “a matter of right unless statutory public policy considerations

i clearly prohibit it.” The concept of liberal discovery was codified in the Discovery Act of 1986

12 (Code of Civil Procedure §§2016.010 — 2036.050), which provides in Code of Civil Procedure

13 §2017.010:

14 Unless otherwise limited by order of the court, in accordance with this
title, any party may obtain discovery regarding any matter, not
15 privileged, that is relevant to the subject matter involved in the
pending action, or to the determination of any motion made in that
16 action, if the matter either is itself admissible in evidence or appears
reasonably calculated to lead to the discovery of admissible evidence.
17

18 In codifying this standard, the drafters of the Discovery Act rejected the recommendation of

19 the ABA Litigation Section that the basic criterion for discovery be relevance to issues. Rather, any

20 information that “might reasonably assist a party in evaluating that case, preparing for trial, or

21 facilitating settlement, falls within the definition of permissible discovery.” Lipton v. Superior Court

22 (1996) 48 Cal.App.4th 1599, 1611. Admissibility is not the test. Discovery rules are applied liberally

23 in favor of discovery and “(contrary to popular belief) fishing expeditions are permissible in some

24 cases.” Gonzalez v. Superior Court (1995) 34 Cal.App.4th 1539, 1546.

25 Finally, Plaintiff incorporates by reference all of the legal arguments proffered to this Court

26 in the Separate Statement filed concurrently herewith as though fully set forth herein.

27 Jif

28 ‘if
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PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL FURTHER RESPONSES FROM
DEFENDANT MENNONITE BRETHREN HOMES, INC. TO SI, SET ONE
THE COURT IS EMPOWERED TO IMPOSE SANCTIONS AGAINST A PARTY

FOR FAILING TO LAWFULLY RESPOND TO AN AUTHORIZED METHOD OF

DISCOVERY

Code of Civil Procedure §2023.010 provides that sanctions may be imposed against a party

for any misuse of the discovery process, as follows:

Misuses of the discovery process include...

(ce) Making, without substantial justification, an unmeritorious
objection to discovery.

(f) Making an evasive response to discovery.
Code of Civil Procedure §2023.010. [emphasis added].
10
Code of Civil Procedure §2023.020 further provides that:
11
Notwithstanding the outcome of the particular discovery motion, the
12 court shall impose a monetary sanction ordering that any party or
attorney who fails to confer as required pay the reasonable expenses,
13 including attorney’s fees, incurred by anyone as a result of that
conduct.
14
Code of Civil Procedure §2023.020.
15
Code of Civil Procedure §2030.300 governs the imposition of sanctions for abuse of the
16
discovery process relating to interrogatories, and provides that:
17
(d) The court shall impose a monetary sanction under Chapter 7
18 (commencing with Section 2023.010) against any party, person,
or attorney who unsuccessfully makes or opposes a motion to
19 compel a further response to interrogatories ...

20 Code of Civil Procedure §2030.300 [emphasis added].

21 Here, sanctions are warranted because Defendant, Mennonite brethren Homes, Inc., has

22 intentionally delayed the discovery process by refusing to provide a full and complete response to

23 Plaintiff's interrogatories. Defendant, Mennonite Brethren Homes, Inc., has further delayed the

24 process by failing to meaningfully engage in the meet and confer process.

25 Iv. CONCLUSION

26 Based upon the foregoing, Plaintiff respectfully submits that Defendant, Mennonite Brethren

27 Homes, Inc., abuse of the discovery process, in their refusal to provide complete and lawful

28 responses to these Interrogatories, without objections, should result in an order that Defendant,
6
PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL FURTHER RESPONSES FROM
DEFENDANT MENNONITE BRETHREN HOMES, INC. TO SI, SET ONE
Mennonite Brethren Homes, Inc., be ordered to answer the inquiries within ten days from the

hearing on this motion.

Plaintiff further requests that an award of monetary sanctions in favor of Plaintiffs, and

against Defendant, Mennonite Brethren Homes, Inc., and its attorney of record, Low, McKinley,

Baleria & Salenko, LLP, jointly and severally be imposed in the amount of $4,860.00 and payable

to Garcia & Artigliere within ten days of the hearing on this motion. Further delay will significantly

prejudice Plaintiffs ability to prosecute this matter in a timely fashion.

DATED: October 3, 2019 GARCIA & ARTIGLIERE

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12
V Stephen M. Garci:
Attorneys for Plai sot
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PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL FURTHER RESPONSES FROM
DEFENDANT MENNONITE BRETHREN HOMES, INC. TO SI, SET ONE
DECLARATION OF STEPHEN M. GARCIA

I, Stephen M. Garcia, declare as follows:

1 I am an attorney duly admitted to practice before this Court. I am an attorney with

Garcia & Artigliere, attorneys of record for Plaintiff. I have personal knowledge of the facts set

forth herein, except as to those stated on information and belief and, as to those, I am informed and

believe them to be true. If called as a witness, I could and would competently testify to the matters

stated herein.
2. Attached hereto as exhibits are true and correct copies of that more fully described

in the body of the pleading.

10 3 Ihave served as lead counsel in over 2500 elder and/or dependent adult abuse cases.”

11 4. That I served as counsel in over 15 elder abuse trials.

12 5 That I personally prepared the interrogatories at issue with an eye on the prima facie

13 elements of proof in an EADACPA action and what discovery is required to address said elements.

14 That each inquiry relates directly to a prima facie element of the allegations of the Complaint.

15 6 On August 14, 2019, Ms. Barenos of Plaintiff's counsel’s office called defense

16 counsel’s office as promised to schedule a telephonic meet and confer, leaving a voicemail message

17 with “June”, an assistant to return the call. On August 27, 2019, counsel participated in a telephonic

18 meet and confer. during the call, defense counsel agreed to provide further verified, supplemental

19 responses by September 18, 2019. Please see Exhibit “7”.

20 7 In addition, with respect to the identification of witnesses, plaintiff's counsel revised

21 the previously proposed stipulation regarding former employees in accordance with the meet and

22 confer discussion and enclosed a copy for defense counsel to sign and return for filing with the

23 Court. Defense counsel failed to return a signed copy of the proposed stipulation. Jd. Regarding

24 Special Interrogatory Nos. 118 and 119, defense counsel advised that he would stand on the

25 objections. Id.

27 ? If the adverse party objects to the foundation for my opinions, or the Court desires same, I would be happy to provide
a complete listing of my professional work, presentations, publications and awards. However, that would span a number
28 of pages and seems rather presumptuous and accordingly absent a need for same it is omitted from my declaration.
8
PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL FURTHER RESPONSES FROM.
DEFENDANT MENNONITE BRETHREN HOMES, INC. TO SI, SET ONE
8 On August 29, 2019, plaintiffs counsel filed and served a Request for Pretrial

Conference as required by Fresno Superior Court Local Rule 2.1.17 in order to resolve the

outstanding discovery disputes following the meet and confer of the parties. Please see Exhibit “8”.

Defendant’s opposition was due on September 10, 2019, however, defendant failed to oppose the

request. On September 24, 2019, the Court denied the Request for Pretrial Conference and gave

permission for plaintiff to file motions to compel on the issues in dispute.

9 To date, Defense has failed to provide sufficient supplemental responses to Plaintiff's

Special Interrogatories, Set One Nos. 1, 6, 7, 8, 11, 14, 15, 18, 21, 24, 25, 26, 28-39, 41, 42, 43, 44,

76-79, 92, 94, 95, 96, 97, 98, 100, 101, 102, 104, 106, 113, 115, 117, 118, 119, and 120. Clearly,

10 this is a calculated move in this case to delay Plaintiff’s efforts in obtaining the information to which

11 Plaintiff is entitled. This conduct simply invites more delay and results in the outright denial Plaintiff

12 the ability to prove her case. The Court simply cannot countenance this type of discovery abuse any

13 longer and should grant this motion.

14 10. I have personal knowledge of the reasonable billing rate for a paralegal in this field.

15 The reasonable billing rate for a paralegal is $150.00 per hour. Approximately 2 hours of paralegal

16 time has been expended in the preparation of a draft of this motion, separate statements and

17 supporting declarations at a reasonable billing rate in matters in which we represent Plaintiffs on a

18 contingency basis of $150.00 per hour. Additionally, I have spent 1 hour preparing and finalizing

19 these papers and will spend another 4 hours considering the opposition, preparing a reply and

20 attending the hearing of this motion at a reasonable billing rate in matters in which we represent

21 Plaintiffs on a contingency basis of $900.00 per hour. Finally, $60.00 has been spent in the filing of

22 this motion for a total of $4,860.00.

23 I declare under penalty of perjury under the laws of the State of California that the foregoing

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24 is true and correct. Executed October 3, 2019, at Winter Garde , Florida.

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26
Stephen M. Garcia
27

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PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL FURTHER RESPONSES FROM
DEFENDANT MENNONITE BRETHREN HOMES, INC. TO SI, SET ONE
EXHIBIT LIST

Exhibit 1 Plaintiff's Special Interrogatories, Set One

Exhibit 2 Defendant Letter Dated: July 9, 2019

Exhibit 3 Defendant Letter Dated: July 24, 2019

Exhibit 4 Defendant Letter Dated: August 2, 2019

Exhibit 5 Defendant's Responses to Special Interrogatories, Set One

Exhibit 6 Plaintiff's Letter Dated: August 13, 2019 re: Special Interrogatories, Set One

Exhibit 7 Plaintiff's Letter Dated: August 27, 2019

Exhibit 8 Request for Pretrial Discovery Conf.
10
Exhibit 9 Order Request for Pretrial Discovery
11
Exhibit 10 Defendants Further Response to Special Interrogatories, Set One
g 12
y Exhibit 11 Plaintiff's Letter Dated: September 27, 2019
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M:\Ortega, Josefina (19-034)\Pleadings\Exhibit. List MTC.S101.Mennonite.docx
EXHIBIT "1"
GARCIA & ARTIGLIERE
Stephen M. Garcia, State Bar No. 123338
edocs@lawgarcia.com
One World Trade Center, Suite 1950
Long Beach, California 90831
Telephone: (562) 216-5270
Facsimile: (562) 216-5271

Attorneys for Plaintiff

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF FRESNO
10

11 JOSEFINA ORTEGA, by and through her CASE NO. 19CECG00994
Successor in Interest, Noelia Ortega,
12 SPECIAL INTERROGATORIES, SET
Plaintiff, ONE
13
Bo vs. Assigned to Hon. Rosemary McGuire, Dept.
Be 14 403
mos
Res PEER SERVICES, INC.; MENNONITE
Oa 28 15 BRETHREN HOMES, INC.; and DOES 1
mek Action Filed: March 20, 2019
BBS
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through 250, inclusive, Trial Date: None Set
16
“as Defendants.
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<6 19 PROPOUNDING PARTY: Plaintiff, JOSEFINA ORTEGA
20 RESPONDING PARTY: Defendant, MENNONITE BRETHREN HOMES, INC.
21 SET NO.: One

22 You are hereby requested to answer, fully, in writing and under oath by a duly authorized

23 representative the following written interrogatories within thirty (30) days of the service hereof,

24 pursuant to Code of Civil Procedure §2030.010. In answering these interrogatories, you are
25 requested to provide all information which is available to you, your agents, representatives,
26 employees, attorneys and investigators, and not just such information as in your personal
27 possession or knowledge. If you are unable to answer any interrogatory after exercising due
28 diligence in attempting to do so, please answer to the extent of your ability and indicate the reason
1
SPECIAL INTERROGATORIES. SET ONE
MAOntega, Josefina\Discovery\To Mennonite Brethren Homes, Inc\S1.01.
serene

for your inability to answer the remainder.

If objections are interposed to any interrogatory, the complete basis for the objection shall
be stated. If it is contended that any information sought is privileged by the attorney/client

privilege or work-product doctrine, it is requested that the factual basis of such privilege be stated
(and that such contentions not be asserted in conclusive terms).

SPECIAL INTERROGATORIES
Special Interrogatory No. 1

Please IDENTIFY each person who participated in the admission of the PLAINTIFF as a
resident of the FACILITY. (The term "IDENTIFY” means to provide the person’s name, residence

10 address and telephone number as well as employment status, For this inquiry and all subsequent
i inquiries “PLAINTIFF” shall pertain to Josefina Ortega. The term “FACILITY” as utilized in

12 this and all subsequent inquiries means the skilled nursing facility commonly referred to as Palm

a 13 Village Retirement Community Health Care Ctr. wherein PLAINTIFF was a resident.)!
a
14 eC Ia! iterro} .
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mee 15 Please IDENTIFY each person who, on behalf of the FACILITY, assisted the
aes
zeas 16 PLAINTIFF with transfers in the calendar months of January and February of 2019
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MzZo 18 Please IDENTIFY each person who, on behalf of the FACILITY, participated in
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<6 19 transferring the PLAINTIFF to Adventist Health Reedly on or about February 11, 2019.

20 Special Interrogatory No. 4

21 Please provide the IDENTIFYING INFORMATION for Evelyn Schlesselman. (The term

22 “IDENTIFYING INFORMATION?” as utilized herein means to provide the individual's last known

23 residence address and telephone number.)
24 Mf

25 ‘In anticipation of what the Plaintiff believes to be a meritless privacy objection yet in an effort to render the assertion
a non-issue as to interrogatories seeking the identity and location of witnesses and as to the location information of the
26 witnesses and in recognition of the fact that in the last reporting period in a report submitted to the State of California
Office of Statewide Health Planning and Development by the facility under penalty of perjury the facility reported
27 annual turnover of 38.98% of direct nursing staff, the Plaintiff offers the Stipulation attached hereto as Exhibit “1”

28
2
SPECIAL INTERROGATORIES. SET ONE
MAOnrtega, Josefina\Discover"\To Mennonite Brethren Homes, Inc\S|
Special Interrogatory No. 5:
Please provide the IDENTIFYING INFORMATION for Surinder Kaur.
Special ter! satory No. 6:

Please provide the IDENTIFYING INFORMATION for Beatrice Encinia.

a 7
Please provide the IDENTIFYING INFORMATION for Bernadette Norris.

Special Interrogatory No. 8:
8 Please provide the IDENTIFYING INFORMATION for Brenda Reynoso.

9 Special Interrogatory No. 9:
10 Please provide the IDENTIFYING INFORMATION for Carissa Rios.

il 1 ato! . 10:
12 Please provide the IDENTIFYING INFORMATION for Connie Espindula.
13 ial Inte: ato No. 1:
ue
Aus 14 Please provide the IDENTIFYING INFORMATION for Isabel Magana.
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Sas 16 Please provide the IDENTIFYING INFORMATION for Isamar Quiroz.
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e°
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No, 13:
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14, On information and belief, I am informed that the defendant facility failed to ensure
“6s 19

20 that the Plaintiff received adequate supervision and assistance devices to prevent accidents, as

21 required by 42 C.F.R. §483.25(h).

22 15. On information and belief, I am informed that the defendant facility’s employees

23 were not properly trained. The Facility failed to have an ongoing educational program planned and

24 conducted for the development and improvement of necessary skills and knowledge for all Facility

25 personnel as required by 22 C.C.R. §72517(a).

26 16, On information and belief, I am informed that the defendant facility failed to ensure

27 that its nurse aides were properly qualified pursuant to 42 C.F.R. §483.75(e).

28 17. On information and belief, I am informed that the defendant facility failed to
25
SPECIAL INTERROGATORIES. SET ONE
MaAOntega, Josefina\Discovery\To Mennonite Brethren Homes, Inc\S1.01.docx
provide regular in service education and training to its nurse aides as required by 42 C.F.R

§483.75(e)(8)
18. On information and belief, I am informed that the defendant facility failed to ensure
that its nurse aides were able to demonstrate competency in skills and techniques necessary to care
for residents’ needs, including Plaintiffs needs, as identified through resident assessments, and

described in the plan of care, as required by 42 C.F.R. §483.75(f)

19, On information and belief, I am informed that the defendant facility failed to
provide such regular performance review and regular in service education in order to assure that

individuals used as nurse aides are competent to perform services as nurse aides, including

10 training for individuals providing nursing and nursing related services to residents with cognitive

11 impairments as required by 42 U.S.C. §1396r(b)(5)(E).

12 20. On information and belief, I am informed that the defendant facility failed to
13 immediately inform the Plaintiff; consult with the Plaintiff's physician; and notify the Plaintiff's
Me

ue 14 legal representative or an interested family member when there was a significant change in the
RES
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oa 15 Plaintiff's physical, mental, or psycho social status as required by 42 C.F.R. §483.10(b)(11).
mak
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MES 16 21 On information and belief, I am informed that the defendant facility failed to
405
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Fe
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20 22, On information and belief, I am informed that the defendant facility failed to carry
21 out its own policies and procedures as required by 22 C.C.R. §72521(b)

22 23 On information and belief, I am informed that the defendant facility failed to
23 operate and provide services in compliance with all applicable Federal, State, and local laws.

24 regulations, and codes, and with accepted professional standards and principles that apply to

25 professionals providing services in such a Facility, as required by 42 C.F.R. §483.75(b) and 42

26 U.S.C. §1396r(d)(4)(A).
27 24. On information and belief, I am informed that the defendant facility failed to
28 provide the Plaintiff with care which shows evidence of good grooming and personal hygiene,
26
SPECIAL INTERROGATORIES. SET ONE
MAOrtega, Josefina\Discovery\To Mennonite Brethren Homes, Inc\S]
including care of the skin, as required by 22 C.C.R. §72315(d) and 42 C.F.R. §483.25(a).

25. On information and belief, I am informed that the defendant facility failed to

provide competent supervision as required by 22 C.C.R. §72501(e).
26. On information and belief, I am informed that the defendant facility failed to accept
and retain only those patients for whom it could provide adequate care as required by 22 C.C.R.

§72515(b).
27. On information and belief, I am informed that the defendant facility’s

Administrator failed to screen the Plaintiff for admission in order to ensure that the Facility

admitted only those patients for whom it could provide adequate care as required by 22 C.C.R.

10 §72513(f).
i 28. On information and belief, 1 am informed that the defendant facility violated the
12 Plaintiff's right to be free from mental and physical abuse, which right is protected by 22 C.C.R.

13 §72527(a)(9).
Xe
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aS 14 29. On information and belief, 1 am informed that the defendant facility failed to care
AEs
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BEE
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17 §1396r(b)(1)(A).
498
Hze 18 30. On information and belief, I am informed that the defendant facility’s administrator
S88
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<6 19 failed to meet the standards pursuant to as required by 42 U.S.C. §1396r(d)(1)(C) and

20 corresponding state regulations.

21 31. On information and belief, I am informed that the defendant facility failed to

22 operate and provide services in compliance with all applicable Federal, State, and local laws and
23 regulations and with accepted professional standards and principles which apply to professionals

24 providing services in a skilled nursing facility operating in the State of California in their dealings

25 with Plaintiff.

26 32. On information and belief, I am informed that the defendant facility failed to care

27 for its residents, including Plaintiff, in a manner and in an environment that promotes maintenance

28 or enhancement of each resident’s quality of life as required by 42 C-F.R. §483.15.
27
SPECIAL INTERROGATORIES. SET ONE
MAOrtega, Josefina\Discovery\To Mennonite Brethren Homes, Inc\SI.01.docx
33 On information and belief, 1 am informed that the defendant facility failed to
promote care for residents, including Plaintiff, in a manner and in an environment that maintains
or enhances each resident’s dignity and respect in full recognition of her individuality as required

by 42 CFR. §483.15(a)
34 On information and belief, I am informed that the defendant facility failed to

provide competent supervision of Plaintiff as required by 22 C.C.R. §72501(e)
35, On information and belief, I am informed that the defendant facility’s administrator
failed to screen Plaintiff for admission in order to ensure that they admitted only those patients for
whom it could provide adequate care as required by 22 C.C.R. §72513(f).

10 36 On information and belief, I am informed that the defendant facility accepted and

il retained Plaintiff at a time at which they could not provide adequate skilled nursing care as

12 required by 22 C.C.R. §72515(b)

a 13 37 On information and belief, 1 am informed that the defendant facility employees

sus 14 were not properly trained.
nes
Oazg
mak 15 38 On information and belief, | am informed that the defendant facility failed to have
BES
Mas 16 an ongoing educational program planned and conducted for the development and improvement of
a5
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ce
498
Hz 18 §72517(a)
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<6 19 39, On information and belief, I am informed that the defendant facility failed to carry

20 out its own policies and procedures as required by 22 C.C.R. §72521(b)

21 40 On information and belief, I am informed that the defendant facility violated

22 Plaintiff's

Case Info

Judge

McGuire, Rosemary Track Judge’s New Case

Case No.

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Document Filed Date

October 08, 2019

Case Filing Date

March 19, 2019

County

Parties

Baleria, Paul R. Attorney for the Defendant
Black, Philip E Attorney
Black, Philip E Attorney for the Defendant
Garberson, Thomas M Attorneys for Defendants
Garcia, Stephen M. Attorney for the Plaintiff
Mennonite Brethren Homes, Inc. Defendant In 1st Cross Complaint
Mennonite Brethren Homes, INC Defendant
Ortega, Josefina Plaintiff
Peer Services, Inc Defendant
Peer Services, Inc. Plaintiff In 1st Cross Complaint
Steven Soltman Attorneys for Defendants

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Motion,Ex Parte: Josefina Ortega vs. Peer Services, Inc

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