Preview
KATHRYN A. STEBNER (SBN 121088)
1 KARMAN GUADAGNI (SBN 267631)
DEENA ZACHARIN (SBN 141249)
2 KELSEY CRAVEN (SBN 337179)
BRIAN UMPIERRE (SBN 236399)
3 STEBNER GERTLER GUADAGNI & KAWAMOTO
A Professional Law Corporation
4 870 Market Street, Suite 1285
San Francisco, CA 94102
5 Tel: (415) 362-9800
Fax: (415) 362-9801
6
KIRSTEN FISH (SB #217940)
7 NEEDHAM KEPNER & FISH LLP
1960 The Alameda, Suite 210
8
San Jose, CA 95126
9 Tel: (408) 244-2166
Fax: (408) 244-7815
10
Attorneys for Plaintiffs
11
12 SUPERIOR COURT OF THE STATE OF CALIFORNIA
13 IN AND FOR THE COUNTY OF KERN
14 BILLY CATES, Individually and as CASE NO. BCV-22-102864
Successor-In-Interest to the Estate of LOIS
15 CATES; BARBARA NEWTON, Individually; MEMORANDUM OF POINTS AND
and PAUL CATES, Individually, AUTHORITIES IN SUPPORT OF
16 PLAINTIFFS’ MOTION TO COMPEL
Plaintiffs, ATTENDANCE AT DEPOSITIONS;
17 REQUEST FOR SANCTIONS
vs.
18
THE VILLAGE AT SEVEN OAKS AL MC, Date: January 3, 2024
19 LLC dba THE VILLAGE AT SEVEN OAKS Time: 8:30 a.m.
ASSISTED LIVING AND MEMORY CARE; Place: Dept. 17
20 SEVEN OAKS AL & MC; FRONTIER Judge: Hon. Thomas S. Clark
MANAGEMENT LLC; FRONTIER SENIOR
LIVING, LLC; SAMANTHA DAVIDSON; Complaint filed: October 26, 2022
21 FAC filed: January 18, 2023
and DOES 1-50, Inclusive, Preferential Trial Date: January 8, 2024
22
Defendants. JURY TRIAL DEMANDED
23
24
25
26
27
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL
ATTENDANCE AT DEPOSITIONS; REQUEST FOR SANCTIONS
1 I. INTRODUCTION
2 Plaintiffs seek an order compelling remaining Defendants THE VILLAGE AT SEVEN
3 OAKS AL MC, LLC dba THE VILLAGE AT SEVEN OAKS ASSISTED LIVING AND
4 MEMORY CARE, SEVEN OAKS AL & MC; FRONTIER MANAGEMENT LLC, FRONTIER
5 SENIOR LIVING, LLC, and SAMANTHA DAVIDSON (collectively referred to herein as
6 “Defendants”) to provide dates certain for the depositions of witnesses pursuant to Plaintiffs’
7 properly served Notices of Taking Depositions.
8 Plaintiffs’ motion should be granted for the following reasons: (1) Defendants failed to offer
9 dates certain for properly noticed depositions; (2) the depositions noticed by Plaintiffs are relevant
10 and likely to lead to the discovery of admissible evidence; (3) Defendants’ anticipated “apex”
11 objections are without merit; and (4) Defendants’ refusal to comply with good faith discovery and
12 meet and confer efforts is simply a means to delay and attempt to prevent Plaintiffs from deposing
13 necessary deponents before the trial in this case, which is scheduled for a preferential trial date of
14 January 8, 2024.
15 II. FACTUAL AND PROCEDURAL BACKGROUND
16 This is an elder abuse case brought under the Elder Abuse and Dependent Adult Civil
17 Protection Act in which Plaintiffs alleged that Defendants, who are owners and operators of a
18 Residential Care Facility for the Elderly (RCFE), The Village at Seven Oaks Assisted Living and
19 Memory Care (the "Facility"), failed to provide an adequate number of sufficiently trained staff to
20 provide care and protection to their residents, causing injury to 89-year-old Decedent Lois Cates
21 ("Decedent"). The crux of this case is Plaintiffs’ claim that Defendants’ reckless neglect allowed for
22 Decedent to suffer physical abuse at the hands of Facility resident Kelland Lancaster, who had a
23 known history of aggression and violence, on November 15, 2021. This assault caused her to suffer
24 severe pain, limited her mobility, a significant functional decline, and her death. (See Complaint
25 [“Complaint”], ¶¶ 17-51.)
26 Plaintiffs filed their Complaint on October 26, 2022 and filed their First Amended
27 Complaint on January 18, 2023. On January 17, 2023, Plaintiffs dismissed defendants Oakmont
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL
ATTENDANCE AT DEPOSITIONS; REQUEST FOR SANCTIONS
1 Management Group, LLC and Oakmont Senior Living, LLC, and on July 24, 2023, Plaintiffs
2 dismissed defendant Kelland Lancaster. On April 17, 2023, Plaintiffs served written discovery on
3 Defendants. On August 16, 2023, Defendants served on Plaintiffs a Petition to Compel Arbitration
4 and Stay Proceedings (herein “Petition to Compel Arbitration”). On August 22, 2023, the parties
5 agreed to stay all non-arbitration related discovery until after the hearing on Defendants’ motion to
6 compel arbitration on September 21, 2023. On September 21, 2023, the Court denied Defendants’
7 motion to compel arbitration, lifted the stay, and set this matter for preferential trial to commence on
8 January 8, 2024. (Declaration of Karman Guadagni, “Guadagni Decl.,” ¶2.)
9 On October 2, 2023, Plaintiffs’ counsel served a notice of deposition for the depositions of
10 Rickay Hidalgo, Edie Cano, Heidi Shafer, Minerva Guzman, Mikayla Arellano, Redonna Massey
11 and Sandra Cupa. (Id., ¶3, Ex. 1.) According to Defendants’ own documentation, Rickay Hidalgo,
12 Heidi Shafer, Minerva Guzman, Redonna Massey and Sandra Cupa were all directly involved in the
13 care and treatment provided to Decedent while she was a resident at the Facility. Plaintiffs are
14 informed and believe that Edie Cano was Defendants’ Health Services Director during Ms. Cates’
15 admission to the Facility. Plaintiff is further informed and believes that Mikayla Arellano was
16 Defendants’ Memory Care Director during Ms. Cates’ admission to the Facility. (Id., ¶15.)
17 On October 9, 2023, Plaintiffs’ counsel and defense counsel met and conferred about this
18 case, and they discussed, among other things, the status of discovery including the noticed
19 depositions. (Id., ¶4.)
20 On October 23, 2023, Plaintiffs’ counsel served a notice of deposition for Defendant
21 Samantha Davidson, Person(s) Most Knowledgeable (“PMK”) regarding staffing at The Village at
22 Seven Oaks Assisted Living and Memory Care (herein “Facility”) during Decedent’s admission to
23 the Facility, PMK regarding the investigation conducted by Defendants or any agent thereof
24 regarding the incident as alleged in Plaintiffs’ Complaint, PMK regarding Kelland “Keck”
25 Lancaster’s aggressive behaviors at the Facility, Caregiver(s) assigned to the Memory Care Unit at
26 the Facility during the PM shift on November 15, 2021, Medication Technician(s) assigned to the
27 Memory Care Unit at the Facility during the PM shift on November 15, 2021, and the Supervisor of
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL
ATTENDANCE AT DEPOSITIONS; REQUEST FOR SANCTIONS
1 the direct care staff assigned to the Memory Care Unit at the Facility during the PM shift on
2 November 15, 2021 (Id., ¶5, Ex. 2.) Samantha Davidson, a defendant in this action, is Defendants’
3 Executive Director. (Id., ¶15.)
4 On October 25, 2023, Defendants served their objections to the depositions noticed by
5 Plaintiffs on October 2, 2023, and indicated that they would “produce the deponents at a mutually
6 convenient date by the end of November.” On October 30, 2023, Defendants claimed they were
7 “working on dates for defendants depositions” On November 1, 2023, Defendants served objections
8 to the depositions noticed by Plaintiffs on October 23, 2023. (Id., ¶¶6, 8; Exs. 3, 5.)
9 On November 7, 2023, Plaintiffs served a notice of deposition for the depositions of the
10 Supervisor of Rickay Hidalgo, the Regional Nurse assigned to the Facility during the time period of
11 May 1, 2019, to and including January 1, 2022, the Vice President of Regulatory Compliance (or
12 equivalent) assigned to the Facility during the time period of May 1, 2019, to and including January
13 1, 2022, and the Health Services Director (or equivalent) assigned to the Facility during the time
14 period of May 1, 2019, to and including January 1, 2022. (Id., ¶10, Ex. 7.)
15 On November 22, 2023, Defendants served objections to the depositions noticed by
16 Plaintiffs on November 7, 2023, stating that the “deponents will not be produced on the dates
17 unilaterally chosen by Plaintiffs’ counsel.” (Id., ¶13, Ex. 10.)
18 The testimony of the Health Services Director, the Regional Nurse assigned to the Facility,
19 the Supervisor of the Regional Director of Operations, the Vice President of Regulatory
20 Compliance, and the Regional Director of Operations’ with respect to the Facility’s systemic
21 staffing and training failures and/or Decedent’s injuries is directly relevant and essential to
22 Plaintiffs’ case, including testimony regarding the staffing at the Facility, as well as money
23 syphoned out of the Facility to related parties instead of providing adequate staffing at the Facility.
24 These depositions are also necessary for discovery on issues of each Defendant’s liability, as well as
25 to Plaintiffs’ allegations of Defendants’ agency, joint venture, and alter ego. (Id., ¶17.)
26 Plaintiffs are entitled to take depositions of persons most knowledgeable and corporate
27 managing agents regarding staffing, among other topics. As the court held in Fenimore v. Regents of
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL
ATTENDANCE AT DEPOSITIONS; REQUEST FOR SANCTIONS
1 University of California (2016) 245 Cal.App.4th 1339, 1349-50, a facility's decision to understaff is
2 evidence of reckless neglect under the Elder Abuse and Dependent Adult Civil Protection Act
3 (EADACPA). Plaintiffs have also alleged that Defendants entirely control the financial operations at
4 the Facility, and that in that connection, they entirely strip the Facility of assets and thereby are a
5 direct cause of the Facility's egregious care. Indeed, Plaintiffs allege that Defendants control the
6 operations at the Facility in fundamental ways and thus are directly liable for the reckless neglect
7 that Decedent suffered. Plaintiffs believe that the depositions noticed by Plaintiffs will show that
8 Defendants set the budget and control the finances of the Facility, among other things, and that the
9 failure to adequately budget for sufficient staff in numbers and training was a substantial
10 contributing factor to Defendants’ reckless neglect of Decedent. As the above makes clear, evidence
11 of the Facility’s staffing levels is squarely relevant to Plaintiffs’ theory of liability against
12 Defendants. (Id., ¶16.)
13 Plaintiffs’ counsel has made multiple attempts to meet and confer with counsel for
14 Defendants regarding the depositions noticed by Plaintiffs, including on October 9, 2023, October
15 30, 2023, November 1, 2023, November 13, 2023, November 20, 2023, and November 21, 2023.
16 (Id., ¶¶4, 7, 9, 11, 12.)
17 To date, Defendants have not produce any the deponents noticed for deposition by Plaintiffs
18 other than Rickay Hidalgo. (Id., ¶18.) Defendants’ continued refusal to produce noticed deponents
19 whose testimonies are relevant and discoverable is meritless and without substantial justification.
20 The noticed deponents must be produced so that Plaintiffs can adequately and properly evaluate this
21 matter for trial, preferentially set for January 8, 2024; therefore, Plaintiffs had no choice but to bring
22 this motion to compel. (Id.)
23 III. LEGAL ARGUMENT
24 Code of Civil Procedure (C.C.P.) § 2017.010 states in pertinent part that “any party may
25 obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved
26 in the pending action….” The information sought in Plaintiffs’ deposition notices will lead to
27 evidence that is directly relevant to the allegations in Plaintiffs’ complaint, where Plaintiffs must
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL
ATTENDANCE AT DEPOSITIONS; REQUEST FOR SANCTIONS
1 prove their allegations of elder abuse/neglect and must prove that the officers, directors, and
2 managing agents of Defendants were reckless, authorized, or ratified the wrongful conduct of the
3 Facility in order to obtain enhanced remedies.
4 Again, in order to obtain enhanced remedies for elder abuse, Plaintiffs must also establish
5 recklessness, fraud, oppression or malice by clear and convincing evidence. (Welf. & Inst. Code §
6 15657.) Thus, what Plaintiffs must establish is Defendants’ “conscious choice of a course of action
7 … with knowledge of the serious danger to others involved.” (Marron v. Superior Court (2003) 108
8 Cal.App.4th 1049, 1068, citing Delaney v. Baker (1999) 20 Cal.4th 23, 31-32.) Plaintiffs must
9 establish that Defendants knew or should have known of the risk of harm that their staffing levels
10 posed to Decedent and yet failed to take reasonable action to protect her from harm. Defendants
11 continue to deny liability. Thus, evidence of what Defendants knew pertaining to the care and
12 treatment provided to Decedent Loise Cates, the Facility’s staffing levels, the training of the staff at
13 the Facility, and the corresponding policies and procedures and funding is highly probative on the
14 issue of whether Defendants acted recklessly or with a “conscious disregard” of Decedent’s safety
15 for purposes of elder abuse/neglect and willful misconduct. There are also issues of alter ego/joint
16 venture/agency among the various entity defendants that must be determined as set forth in
17 Plaintiffs’ allegations in their Complaint.
18 Moreover, in establishing the Elder Abuse and Dependent Adult Civil Protection Act, under
19 which Plaintiffs bring their claim for elder abuse/neglect against Defendants, the State Legislature
20 expressly “recognize[d] that elders and dependent adults may be subjected to abuse, neglect, or
21 abandonment and that this state has a responsibility to protect these persons.” (Welf. & Inst. Code §
22 15600 (a).) The State Legislature expressly codified the significant and compelling state interest
23 “direct[ing] special attention” to protecting elders, like Decedent, because “they are more subject to
24 risks of abuse, neglect, and abandonment.” (Welf. & Inst. Code § 15600(b), emphasis added). The
25 State further codified that “[i]t is the further intent of the Legislature in adding Article 8.5
26 (commencing with Section 15657) to this chapter to enable interested persons to engage attorneys to
27
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL
ATTENDANCE AT DEPOSITIONS; REQUEST FOR SANCTIONS
1 take up the cause of abused elderly persons and dependent adults,” such as the present lawsuit
2 brought by Plaintiffs. (Welf. & Inst. Code § 15600(j)).
3 As discussed herein, Defendants’ continued refusal to produce the witnesses noticed for
4 deposition is without merit and without substantial justification. These witnesses must be provided
5 so that Plaintiffs can adequately prepare for preferential trial set for January 8, 2024.
6
A. The Noticed Depositions of Facility Staff are Directly Relevant to Plaintiffs’
7 Claims, as These Witnesses Have Firsthand Knowledge of the Care and
8 Treatment Provided to Decedent at the Facility.
“Relevant to the subject matter” is broader than relevancy to the issues which determines
9
admissibility of evidence at trial. (Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial
10
(TRG 2010) ¶8:66, citing Bridgestone-Firestone Inc. v. Sup. Ct. (1992) 7 Cal.App.4th 1384, 1392.)
11
The depositions requested will lead to testimony that is directly relevant to the allegations in
12
Plaintiffs’ Complaint, in which Plaintiffs allege that Defendants failed to provide an adequate
13
number of sufficiently trained staff to provide care to their residents, causing injury to the 89-year-
14
old Decedent. Again, the crux of this case is Plaintiffs’ claim that Defendants’ reckless neglect
15
caused Decedent to suffer serious physical abuse, on multiple occasions, at the hands of another
16
resident living at the Facility with resulting injuries, including several serious bruises on her face,
17
breasts, and chest as well as multiple open wounds on both of her forearms. According to
18
Defendants’ own documentation, Rickay Hidalgo, Edie Cano, Heidi Shafer, Samantha Davidson,
19
Minerva Guzman, Mikayla Arellano, Redonna Massey and Sandra Cupa were all directly involved
20
in the care and treatment provided to Decedent while she was a resident at the Facility. According to
21
documents produced by Defendants, Rickay Hidalgo, Edie Cano, Heidi Shafer, Samantha Davidson,
22
Minerva Guzman, Mikayla Arellano, Redonna Massey and Sandra Cupa are nurses, medication
23
technicians, caregivers, and administrators who created documentation, including incident reports
24
and/or narrative charting, regarding the abuse of Decedent during her admission to the Facility.
25
Plaintiffs are informed and believe that Samantha Davidson is and was Defendants’ Executive
26
Director during Decedent’s admission to the Facility. Plaintiffs are informed and believe that Edie
27
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL
ATTENDANCE AT DEPOSITIONS; REQUEST FOR SANCTIONS
1 Cano was Defendants’ Health Services Director during Decedent’s admission to the Facility.
2 Plaintiff is further informed and believes that Mikayla Arellano is Defendants’ Memory Care
3 Director.
4 Plaintiffs are entitled to take depositions of persons most knowledgeable and corporate
5 managing agents regarding staffing. As the court held in Fenimore v. Regents of University of
6 California (2016) 245 Cal.App.4th 1339, 1349-50, a facility's decision to understaff is evidence of
7 reckless neglect under EADACPA. Plaintiffs have also alleged that Defendants entirely control the
8 financial operations at the Facility, and that in that connection, they entirely strip the Facility of
9 assets and thereby are a direct cause of the Facility's egregious care. Indeed, Plaintiffs allege that
10 Defendants control the operations at the Facility in fundamental ways and thus are directly liable for
11 the reckless neglect that Decedent suffered. Plaintiffs believe that the requested depositions will
12 show that Defendants set the budget and control the finances of the Facility, among other things,
13 and that the failure to adequately budget for sufficient staff in numbers and training was a
14 substantial contributing factor to Defendants’ reckless neglect of Decedent. As the above makes
15 clear, evidence of the Facility’s staffing levels and the training of the staff is squarely relevant to
16 Plaintiffs’ theory of liability against Defendants.
17 To date, Defendants have not produced any the deponents noticed for deposition by
18 Plaintiffs other than Rickay Hidalgo. (Guadagni Decl., ¶18.) Defendants’ continued refusal to
19 provide these deponents for testimony on topics that are relevant and discoverable is meritless and
20 without substantial justification.
21 Plaintiffs are informed and believe that all of these Facility staff and managing agent
22 witnesses have firsthand knowledge of the assaults on Decedent and her related injuries and death.
23 These noticed deponents are key witnesses regarding the allegations in Plaintiffs’ Complaint.
24 Therefore, Plaintiffs respectfully request this Court grant this motion and require Defendants to
25 produce the requested deponents for deposition within seven days and provide a date certain within
26 three days of the hearing on this motion.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL
ATTENDANCE AT DEPOSITIONS; REQUEST FOR SANCTIONS
B. The Depositions of the Defendants’ Supervisors, Directors and Persons Most
1 Knowledgeable are Directly Relevant to Notice and Ratification by a Managing
2 Agent – a Necessary Element of Plaintiffs’ Case.
Plaintiffs are informed and believe that the Executive Director, Memory Care Director,
3
supervisor of Rickay Hidalgo, the Regional Nurse assigned to the Facility during the time period of
4
May 1, 2019, to and including January 1, 2022, the Vice President of Regulatory Compliance (or
5
equivalent) assigned to the Facility during the time period of May 1, 2019, to and including January
6
1, 2022, and the Health Services Director (or equivalent) assigned to the Facility during the time
7
period of May 1, 2019, to and including January 1, 2022 and the requested persons most
8
knowledgeable will provide critical testimony with respect to the Facility’s systemic staffing and
9
training failures and/or Decedent’s injuries, testimony which is directly relevant and essential to
10
Plaintiffs’ case, including testimony regarding the assailant Kelland “Keck” Lancaster, the care and
11
treatment at the Facility, and staffing and training at the Facility, as well as money syphoned out of
12
the Facility to related parties instead of providing adequate staffing at the Facility.
13
These deponents are officers and managing agents of the Facility and are legally responsible
14
for the management and operation of the Facility, including their responsibility to ensure the Facility
15
has enough staff to meet the needs of its residents, including Decedent. Given Plaintiffs’ allegations
16
of insufficient staffing as a direct cause of Decedent’s injuries at the Facility, questions about the
17
Facility’s expenses and related party transactions are directly relevant to this case, because money
18
that is syphoned out of the Facility to related parties means less money for adequate staffing to
19
provide sufficient monitoring and care to the residents, including Decedent.
20
Inherent in Plaintiffs’ claims of recklessness, oppression, fraud or malice, is the fact that a
21
managing agent, officer, or director knew of or ratified wrongful conduct. (See e.g., CACI 3102B, a
22
jury instruction for enhanced remedies under EADACPA). Additionally, in any negligence or elder
23
abuse case, the issue of notice – or whether defendants had advance knowledge of a substandard
24
condition – is a key element. Plaintiffs must be allowed to depose witnesses regarding the
25
management and ownership structure of the Facility and its corporate owners and related parties and
26
also about what Defendants’ managing agents knew about the conditions at the Facility, and
27
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL
ATTENDANCE AT DEPOSITIONS; REQUEST FOR SANCTIONS
1 Defendants’ investigation and response to Decedent’s injuries and other issues regarding resident
2 care at the Facility.
3 As Defendants are aware, the Facility is required by California law to comply with certain
4 minimum staffing and training requirements to meet the needs of the residents. (See, e.g., 22 C.C.R.
5 § 87411(a) [“Facility personnel shall at all times be sufficient in numbers, and competent to provide
6 the services necessary to meet resident needs”].) And as a result of the inadequate staffing, Decedent
7 was injured and died. Thus, the depositions of the requested deponents, including Defendants’
8 managing agents, are essential to Plaintiffs’ case.
9 This information is also relevant as much of the deponents’ anticipated testimony seeks to
10 identify the duties that the various entities and individuals are responsible for carrying out and the
11 relationship between all of the actors responsible for providing care to residents, including
12 Decedent. Further, this testimony is directly relevant to Plaintiffs’ claim of elder neglect, as it goes
13 to several matters including, but not limited to, the managing agents’ knowledge of their failure to
14 adequately ensure the safety of the residents, adequately supervise residents, and/or adequately staff
15 the Facility and train that staff. As Defendants know, wrongful conduct by a managing agent,
16 including recklessness and/or ratification, is one of the elements Plaintiffs must satisfy to seek
17 heightened remedies under EADACPA. This information is typically sought and provided in these
18 cases.
19 Additionally, because Plaintiffs have alleged that Defendants control the operations at the
20 Facility in fundamental ways and thus are directly liable for the injuries that Decedent suffered,
21 these depositions are also necessary for discovery on issues of each Defendant’s liability, as well as
22 to Plaintiffs’ allegations of Defendants’ agency, joint venture, and alter ego.
23 C. Any Possible “Apex” Objection is Misplaced.
24 Although Defendants did not raise an “apex” objection in their served objections, Plaintiffs
25 anticipate that Defendants will argue in their opposition to this motion that the depositions of the
26 Health Services Director, the Regional Nurse assigned to the Village at Seven Oaks Assisted Living
27 and Memory Care, the Supervisor of the Regional Director of Operations, the Vice President of
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL
ATTENDANCE AT DEPOSITIONS; REQUEST FOR SANCTIONS
1 Regulatory Compliance, and the Regional Director of Operations, as managing agents, are
2 categorically protected by the “apex” doctrine. As the word “apex” implies, the doctrine only
3 protects officials at the “highest” level of the corporation. Mere executive titles and simple
4 assertions that the potential deponent is a “senior corporate officer” is not enough to satisfy this
5 burden. Protecting executive officers who are part of the governing body of the skilled nursing
6 facility at issue would render the “apex” doctrine moot. The doctrine actually requires these
7 managing agents to be deposed before “apex” witnesses. Permitting these managing agents to
8 qualify under the doctrine would erase any distinction between the “apex” and governing board
9 officers and thus undermine the essence of the doctrine. The doctrine was not meant to be a tool for
10 evading relevant and permissible discovery.
11 Moreover, the Health Services Director, the Regional Nurse assigned to the Facility, the
12 Supervisor of the Regional Director of Operations, the Vice President of Regulatory Compliance,
13 and the Regional Director of Operations are direct witnesses to Plaintiffs’ claims in this case. The
14 "apex” doctrine plainly does not apply to fact witnesses with direct knowledge of the issues in the
15 lawsuit. (Liberty Mut. Ins. Co. v. Superior Court, 10 Cal. App. 4th 1282, 1289) [holding that the
16 opposing party is entitled to depose a high-level corporate official as long as "the plaintiff has
17 shown good cause that the official has unique or superior personal knowledge of discoverable
18 information"].) In Liberty Mutual, the plaintiff sought to take the deposition of the CEO of a
19 workers compensation insurance company when the company denied coverage to an injured worker.
20 The Court found that the only link to the handling of worker’s insurance claim “was counsel's act of
21 copying him, by title only, on two letters which would have been automatically rerouted to a lower
22 level employee.” (Id. at 1286.) Here, however, The Health Services Director, the Regional Nurse
23 assigned to the Village at Seven Oaks Assisted Living and Memory Care, the Supervisor of the
24 Regional Director of Operations’, the Vice President of Regulatory Compliance, and the Regional
25 Director of Operations are corporate managing agents who are closely involved in making decisions
26 regarding the finances, staffing and training at Defendants’ facilities, including The Village At
27 Seven Oaks Assisted Living And Memory Care.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL
ATTENDANCE AT DEPOSITIONS; REQUEST FOR SANCTIONS
1 As discussed above, any potential “apex” objections by Defendants are meritless, as these
2 depositions are necessary for discovery on issues of each Defendants’ liability, as well as to
3 Plaintiffs’ allegations of Defendants’ agency, joint venture, and alter ego. In an elder abuse cause of
4 action that seeks enhanced remedies, as exists in this case, Plaintiffs must prove recklessness,
5 oppression, fraud or malice. Inherent in recklessness, oppression, fraud or malice, is the fact that a
6 managing agent, officer, or director knew of or ratified wrongful conduct. (See, e.g., CACI 3102B, a
7 jury instruction for enhanced remedies under EADACPA). Additionally, in any negligence or elder
8 abuse case, the issue of notice – or whether defendants had advance knowledge of a substandard
9 condition – is a key element. Plaintiffs must be allowed to depose witnesses regarding the corporate
10 structure of The Village at Seven Oaks AL MC, LLC dba The Village at Seven Oaks Assisted
11 Living and Memory Care, Seven Oaks AL & MC, Frontier Management LLC, Frontier Senior
12 Living, LLC, and also about what the managing agents of each corporate entity knew about the
13 conditions at the Facility, and Defendants’ investigation and response to Decedent’s injuries and
14 death and other issues regarding resident care. And while it is true that these deponents may not
15 have met, contacted, or physically cared for Decedent, as the corporate managing agents they likely
16 knew of or ratified wrongful conduct that caused injuries to Decedent, including inadequate staffing
17 of the Facility, insufficient training, etc. The only way that Plaintiffs can explore these deponents’
18 knowledge as to these issues is by taking their depositions.
19 As described herein, testimony of corporate managing agents such as the Health Services
20 Director, the Regional Nurse assigned to the Village at Seven Oaks Assisted Living and Memory
21 Care, the Supervisor of the Regional Director of Operations’, the Vice President of Regulatory
22 Compliance, and the Regional Director of Operations and others with respect to the Facility’s
23 systemic staffing and training failures, corporate structure, and/or Decedent’s injuries is directly
24 relevant and essential to Plaintiffs’ case. Plaintiff has a right to depose corporate managing agents
25 regarding their involvement in decisions relevant to, inter alia, the Facility’s staffing, training and
26 policies and procedures, the relationship between the corporate entities, the care and treatment of
27 residents, and compliance with regulations. Therefore, Plaintiffs respectfully request this Court
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL
ATTENDANCE AT DEPOSITIONS; REQUEST FOR SANCTIONS
1 grant this motion and require Defendants to provide dates certain within three days of the hearing on
2 this motion and to produce the requested deponents for deposition within seven (7) days and/or
3 provide last known contact information within three calendar days of this motion for any witness
4 they are unable to contact, produce and/or represent.
5 IV. MONETARY SANCTIONS ARE APPROPRIATE
6 Monetary sanctions against Defendants are appropriate here. (See C.C.P. §2025.450.)
7 Pursuant to C.C.P. § 2023.010, misuses of the discovery process include “(d) failing to respond or to
8 submit to an authorized method of discovery.” (Id.)
9 Here, despite efforts by Plaintiffs to meet and confer regarding ongoing discovery issues,
10 Defendants have chosen to fail to comply with the discovery process despite Plaintiffs’ clear right to
11 these depositions, and despite a rapidly nearing preferential trial date. Defendants’ delaying tactics
12 constitute bad faith actions which should be sanctioned under the Code. Defendants’ prompt and
13 proper responses to Plaintiffs’ requests and deposition notices would have prevented the need to file
14 this motion. However, despite every attempt by Plaintiffs to meet and confer, Defendants have not
15 complied and have skirted clear requests and simple calendaring. Plaintiffs should be awarded
16 monetary sanctions as compensation for time and expenses. Plaintiffs have incurred costs of $60.00
17 dollars for filing this motion, and attorneys’ fees of $5,500.00. (See Guadagni Decl., ¶18.) Sanctions
18 in the amount of $5,560.00 should be imposed against Defendants.
19 Additionally, Plaintiffs request pursuant to C.C.P. § 2023.030 that the Court in its discretion
20 impose issue or evidence sanctions due to Defendants’ misuse of the discovery process as described
21 herein.
22 V. CONCLUSION
23 Plaintiffs’ Deposition Notices seek discoverable and highly relevant information. Defendants
24 have failed to produce witnesses for deposition as discussed herein. Plaintiffs respectfully request
25 this Court to order Defendants to provide dates certain for each of the witnesses listed in Plaintiffs’
26 Deposition Notices within three (3) calendar days of this motion for depositions and to produce the
27 requested deponents for deposition within seven (7) days and/or provide last known contact
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL
ATTENDANCE AT DEPOSITIONS; REQUEST FOR SANCTIONS
1 information within three (3) calendar days of this motion for any witness they are unable to contact,
2 produce and/or represent; to pay sanctions in the amount of $5,560.00 for the misuse of the
3 discovery process and prejudice to Plaintiffs, and for such other sanctions the Court in its discretion
4 deems appropriate due to Defendants’ misuse of the discovery process.
5 Dated: November 27, 2023 STEBNER GERTLER GUADAGNI & KAWAMOTO
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By: _________________________________________
8 Kathryn Stebner
Karman Guadagni
9 Deena Zacharin
Kelsey Craven
10 Attorneys For Plaintiffs
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL
ATTENDANCE AT DEPOSITIONS; REQUEST FOR SANCTIONS
Billy Cates, et al. v. The Village at Seven Oaks AL MC, LLC, dba, et al.
1 Kern County Superior Court, Case No. BCV-22-102864
2 PROOF OF SERVICE
3 I, the undersigned, declare:
4 I am a citizen of the United States of America, am over the age of eighteen (18) years, and not a
party to the within action. I am an employee of Stebner Gertler Guadagni & Kawamoto, and my
5 business address is 870 Market Street, Suite 1285, San Francisco, California 94102. On the date below,
I caused to be served the following documents:
6
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’
7 MOTION TO COMPEL ATTENDANCE AT DEPOSITIONS; REQUEST FOR SANCTIONS
8 on the parties involved, addressed as follows:
Kirsten Fish William C. Wilson
9 NEEDHAM, KEPNER & FISH LLP Nicholas Prukop
1960 The Alameda, Suite 210 WILSON GETTY LLP
10 San Jose, CA 95126 12555 High Bluff Drive, Suite 270
Phone: (408) 261-4226 San Diego, California 92130
11 Fax: (408) 244-7815 Telephone: 858.847.3237; Facsimile: 858.847.3365
E-mail: kfish@nkf-law.com Email: bwilson@wilsongetty.com
12 Email: nprukop@wilsongetty.com
Co-Counsel for Plaintiffs Email: jwillard@wilsongetty.com
13 Email: jmartinez@wilongetty.com
14 Attorneys For Defendants THE VILLAGE AT
SEVEN OAKS AL MC, LLC Dba THE VILLAGE AT
15 SEVEN OAKS ASSISTED LIVING AND MEMORY
CARE; SEVEN OAK ASSISTED LIVING AND
16 MEMORY CARE LLC (Erroneously Sued And
Served As SEVEN OAKS AL & MC); FRONTIER
17 MANAGEMENT LLC, FRONTIER SENIOR
LIVING, LLC And SAMANTHA DAVIDSON
18
X BY ELECTRONIC SERVICE: I electronically filed the document(s) listed above with the
19 Clerk of the Court by using the Court’s approved E-filing provider, One Legal, and caused a
copy of said document(s) to be E-Served through One Legal to the persons at the e-mail
20 address(es) listed above on this date. No electronic message or other indication that the
transmission was unsuccessful was received within a reasonable time after the transmission.
21
BY EMAIL/ELECTRONIC SUBMISSION: Only by e-mailing the document(s) listed
22 above to the persons at the e-mail address(es) listed on this date pursuant to Code of Civil
Procedure § 1010.6 and California Rules of Court Rule 2.251. No electronic message or
23 other indication that the transmission was unsuccessful was received within a reasonable
time after the submission.
24
25 I declare under penalty of perjury under the laws of the State of California that the foregoing is
26 true and correct. Executed at San Francisco, California on November 27, 2023.
27
28
Ann Williams
1 PROOF OF SERVICE
Preview
KATHRYN A. STEBNER (SBN 121088) 1 KARMAN GUADAGNI (SBN 267631) DEENA ZACHARIN (SBN 141249) 2 KELSEY CRAVEN (SBN 337179) BRIAN UMPIERRE (SBN 236399) 3 STEBNER GERTLER GUADAGNI & KAWAMOTO A Professional Law Corporation 4 870 Market Street, Suite 1285 San Francisco, CA 94102 5 Tel: (415) 362-9800 Fax: (415) 362-9801 6 KIRSTEN FISH (SB #217940) 7 NEEDHAM KEPNER & FISH LLP 1960 The Alameda, Suite 210 8 San Jose, CA 95126 9 Tel: (408) 244-2166 Fax: (408) 244-7815 10 Attorneys for Plaintiffs 11 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 IN AND FOR THE COUNTY OF KERN 14 BILLY CATES, Individually and as CASE NO. BCV-22-102864 Successor-In-Interest to the Estate of LOIS 15 CATES; BARBARA NEWTON, Individually; MEMORANDUM OF POINTS AND and PAUL CATES, Individually, AUTHORITIES IN SUPPORT OF 16 PLAINTIFFS’ MOTION TO COMPEL Plaintiffs, ATTENDANCE AT DEPOSITIONS; 17 REQUEST FOR SANCTIONS vs. 18 THE VILLAGE AT SEVEN OAKS AL MC, Date: January 3, 2024 19 LLC dba THE VILLAGE AT SEVEN OAKS Time: 8:30 a.m. ASSISTED LIVING AND MEMORY CARE; Place: Dept. 17 20 SEVEN OAKS AL & MC; FRONTIER Judge: Hon. Thomas S. Clark MANAGEMENT LLC; FRONTIER SENIOR LIVING, LLC; SAMANTHA DAVIDSON; Complaint filed: October 26, 2022 21 FAC filed: January 18, 2023 and DOES 1-50, Inclusive, Preferential Trial Date: January 8, 2024 22 Defendants. JURY TRIAL DEMANDED 23 24 25 26 27 -1- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL ATTENDANCE AT DEPOSITIONS; REQUEST FOR SANCTIONS 1 I. INTRODUCTION 2 Plaintiffs seek an order compelling remaining Defendants THE VILLAGE AT SEVEN 3 OAKS AL MC, LLC dba THE VILLAGE AT SEVEN OAKS ASSISTED LIVING AND 4 MEMORY CARE, SEVEN OAKS AL & MC; FRONTIER MANAGEMENT LLC, FRONTIER 5 SENIOR LIVING, LLC, and SAMANTHA DAVIDSON (collectively referred to herein as 6 “Defendants”) to provide dates certain for the depositions of witnesses pursuant to Plaintiffs’ 7 properly served Notices of Taking Depositions. 8 Plaintiffs’ motion should be granted for the following reasons: (1) Defendants failed to offer 9 dates certain for properly noticed depositions; (2) the depositions noticed by Plaintiffs are relevant 10 and likely to lead to the discovery of admissible evidence; (3) Defendants’ anticipated “apex” 11 objections are without merit; and (4) Defendants’ refusal to comply with good faith discovery and 12 meet and confer efforts is simply a means to delay and attempt to prevent Plaintiffs from deposing 13 necessary deponents before the trial in this case, which is scheduled for a preferential trial date of 14 January 8, 2024. 15 II. FACTUAL AND PROCEDURAL BACKGROUND 16 This is an elder abuse case brought under the Elder Abuse and Dependent Adult Civil 17 Protection Act in which Plaintiffs alleged that Defendants, who are owners and operators of a 18 Residential Care Facility for the Elderly (RCFE), The Village at Seven Oaks Assisted Living and 19 Memory Care (the "Facility"), failed to provide an adequate number of sufficiently trained staff to 20 provide care and protection to their residents, causing injury to 89-year-old Decedent Lois Cates 21 ("Decedent"). The crux of this case is Plaintiffs’ claim that Defendants’ reckless neglect allowed for 22 Decedent to suffer physical abuse at the hands of Facility resident Kelland Lancaster, who had a 23 known history of aggression and violence, on November 15, 2021. This assault caused her to suffer 24 severe pain, limited her mobility, a significant functional decline, and her death. (See Complaint 25 [“Complaint”], ¶¶ 17-51.) 26 Plaintiffs filed their Complaint on October 26, 2022 and filed their First Amended 27 Complaint on January 18, 2023. On January 17, 2023, Plaintiffs dismissed defendants Oakmont -2- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL ATTENDANCE AT DEPOSITIONS; REQUEST FOR SANCTIONS 1 Management Group, LLC and Oakmont Senior Living, LLC, and on July 24, 2023, Plaintiffs 2 dismissed defendant Kelland Lancaster. On April 17, 2023, Plaintiffs served written discovery on 3 Defendants. On August 16, 2023, Defendants served on Plaintiffs a Petition to Compel Arbitration 4 and Stay Proceedings (herein “Petition to Compel Arbitration”). On August 22, 2023, the parties 5 agreed to stay all non-arbitration related discovery until after the hearing on Defendants’ motion to 6 compel arbitration on September 21, 2023. On September 21, 2023, the Court denied Defendants’ 7 motion to compel arbitration, lifted the stay, and set this matter for preferential trial to commence on 8 January 8, 2024. (Declaration of Karman Guadagni, “Guadagni Decl.,” ¶2.) 9 On October 2, 2023, Plaintiffs’ counsel served a notice of deposition for the depositions of 10 Rickay Hidalgo, Edie Cano, Heidi Shafer, Minerva Guzman, Mikayla Arellano, Redonna Massey 11 and Sandra Cupa. (Id., ¶3, Ex. 1.) According to Defendants’ own documentation, Rickay Hidalgo, 12 Heidi Shafer, Minerva Guzman, Redonna Massey and Sandra Cupa were all directly involved in the 13 care and treatment provided to Decedent while she was a resident at the Facility. Plaintiffs are 14 informed and believe that Edie Cano was Defendants’ Health Services Director during Ms. Cates’ 15 admission to the Facility. Plaintiff is further informed and believes that Mikayla Arellano was 16 Defendants’ Memory Care Director during Ms. Cates’ admission to the Facility. (Id., ¶15.) 17 On October 9, 2023, Plaintiffs’ counsel and defense counsel met and conferred about this 18 case, and they discussed, among other things, the status of discovery including the noticed 19 depositions. (Id., ¶4.) 20 On October 23, 2023, Plaintiffs’ counsel served a notice of deposition for Defendant 21 Samantha Davidson, Person(s) Most Knowledgeable (“PMK”) regarding staffing at The Village at 22 Seven Oaks Assisted Living and Memory Care (herein “Facility”) during Decedent’s admission to 23 the Facility, PMK regarding the investigation conducted by Defendants or any agent thereof 24 regarding the incident as alleged in Plaintiffs’ Complaint, PMK regarding Kelland “Keck” 25 Lancaster’s aggressive behaviors at the Facility, Caregiver(s) assigned to the Memory Care Unit at 26 the Facility during the PM shift on November 15, 2021, Medication Technician(s) assigned to the 27 Memory Care Unit at the Facility during the PM shift on November 15, 2021, and the Supervisor of -3- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL ATTENDANCE AT DEPOSITIONS; REQUEST FOR SANCTIONS 1 the direct care staff assigned to the Memory Care Unit at the Facility during the PM shift on 2 November 15, 2021 (Id., ¶5, Ex. 2.) Samantha Davidson, a defendant in this action, is Defendants’ 3 Executive Director. (Id., ¶15.) 4 On October 25, 2023, Defendants served their objections to the depositions noticed by 5 Plaintiffs on October 2, 2023, and indicated that they would “produce the deponents at a mutually 6 convenient date by the end of November.” On October 30, 2023, Defendants claimed they were 7 “working on dates for defendants depositions” On November 1, 2023, Defendants served objections 8 to the depositions noticed by Plaintiffs on October 23, 2023. (Id., ¶¶6, 8; Exs. 3, 5.) 9 On November 7, 2023, Plaintiffs served a notice of deposition for the depositions of the 10 Supervisor of Rickay Hidalgo, the Regional Nurse assigned to the Facility during the time period of 11 May 1, 2019, to and including January 1, 2022, the Vice President of Regulatory Compliance (or 12 equivalent) assigned to the Facility during the time period of May 1, 2019, to and including January 13 1, 2022, and the Health Services Director (or equivalent) assigned to the Facility during the time 14 period of May 1, 2019, to and including January 1, 2022. (Id., ¶10, Ex. 7.) 15 On November 22, 2023, Defendants served objections to the depositions noticed by 16 Plaintiffs on November 7, 2023, stating that the “deponents will not be produced on the dates 17 unilaterally chosen by Plaintiffs’ counsel.” (Id., ¶13, Ex. 10.) 18 The testimony of the Health Services Director, the Regional Nurse assigned to the Facility, 19 the Supervisor of the Regional Director of Operations, the Vice President of Regulatory 20 Compliance, and the Regional Director of Operations’ with respect to the Facility’s systemic 21 staffing and training failures and/or Decedent’s injuries is directly relevant and essential to 22 Plaintiffs’ case, including testimony regarding the staffing at the Facility, as well as money 23 syphoned out of the Facility to related parties instead of providing adequate staffing at the Facility. 24 These depositions are also necessary for discovery on issues of each Defendant’s liability, as well as 25 to Plaintiffs’ allegations of Defendants’ agency, joint venture, and alter ego. (Id., ¶17.) 26 Plaintiffs are entitled to take depositions of persons most knowledgeable and corporate 27 managing agents regarding staffing, among other topics. As the court held in Fenimore v. Regents of -4- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL ATTENDANCE AT DEPOSITIONS; REQUEST FOR SANCTIONS 1 University of California (2016) 245 Cal.App.4th 1339, 1349-50, a facility's decision to understaff is 2 evidence of reckless neglect under the Elder Abuse and Dependent Adult Civil Protection Act 3 (EADACPA). Plaintiffs have also alleged that Defendants entirely control the financial operations at 4 the Facility, and that in that connection, they entirely strip the Facility of assets and thereby are a 5 direct cause of the Facility's egregious care. Indeed, Plaintiffs allege that Defendants control the 6 operations at the Facility in fundamental ways and thus are directly liable for the reckless neglect 7 that Decedent suffered. Plaintiffs believe that the depositions noticed by Plaintiffs will show that 8 Defendants set the budget and control the finances of the Facility, among other things, and that the 9 failure to adequately budget for sufficient staff in numbers and training was a substantial 10 contributing factor to Defendants’ reckless neglect of Decedent. As the above makes clear, evidence 11 of the Facility’s staffing levels is squarely relevant to Plaintiffs’ theory of liability against 12 Defendants. (Id., ¶16.) 13 Plaintiffs’ counsel has made multiple attempts to meet and confer with counsel for 14 Defendants regarding the depositions noticed by Plaintiffs, including on October 9, 2023, October 15 30, 2023, November 1, 2023, November 13, 2023, November 20, 2023, and November 21, 2023. 16 (Id., ¶¶4, 7, 9, 11, 12.) 17 To date, Defendants have not produce any the deponents noticed for deposition by Plaintiffs 18 other than Rickay Hidalgo. (Id., ¶18.) Defendants’ continued refusal to produce noticed deponents 19 whose testimonies are relevant and discoverable is meritless and without substantial justification. 20 The noticed deponents must be produced so that Plaintiffs can adequately and properly evaluate this 21 matter for trial, preferentially set for January 8, 2024; therefore, Plaintiffs had no choice but to bring 22 this motion to compel. (Id.) 23 III. LEGAL ARGUMENT 24 Code of Civil Procedure (C.C.P.) § 2017.010 states in pertinent part that “any party may 25 obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved 26 in the pending action….” The information sought in Plaintiffs’ deposition notices will lead to 27 evidence that is directly relevant to the allegations in Plaintiffs’ complaint, where Plaintiffs must -5- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL ATTENDANCE AT DEPOSITIONS; REQUEST FOR SANCTIONS 1 prove their allegations of elder abuse/neglect and must prove that the officers, directors, and 2 managing agents of Defendants were reckless, authorized, or ratified the wrongful conduct of the 3 Facility in order to obtain enhanced remedies. 4 Again, in order to obtain enhanced remedies for elder abuse, Plaintiffs must also establish 5 recklessness, fraud, oppression or malice by clear and convincing evidence. (Welf. & Inst. Code § 6 15657.) Thus, what Plaintiffs must establish is Defendants’ “conscious choice of a course of action 7 … with knowledge of the serious danger to others involved.” (Marron v. Superior Court (2003) 108 8 Cal.App.4th 1049, 1068, citing Delaney v. Baker (1999) 20 Cal.4th 23, 31-32.) Plaintiffs must 9 establish that Defendants knew or should have known of the risk of harm that their staffing levels 10 posed to Decedent and yet failed to take reasonable action to protect her from harm. Defendants 11 continue to deny liability. Thus, evidence of what Defendants knew pertaining to the care and 12 treatment provided to Decedent Loise Cates, the Facility’s staffing levels, the training of the staff at 13 the Facility, and the corresponding policies and procedures and funding is highly probative on the 14 issue of whether Defendants acted recklessly or with a “conscious disregard” of Decedent’s safety 15 for purposes of elder abuse/neglect and willful misconduct. There are also issues of alter ego/joint 16 venture/agency among the various entity defendants that must be determined as set forth in 17 Plaintiffs’ allegations in their Complaint. 18 Moreover, in establishing the Elder Abuse and Dependent Adult Civil Protection Act, under 19 which Plaintiffs bring their claim for elder abuse/neglect against Defendants, the State Legislature 20 expressly “recognize[d] that elders and dependent adults may be subjected to abuse, neglect, or 21 abandonment and that this state has a responsibility to protect these persons.” (Welf. & Inst. Code § 22 15600 (a).) The State Legislature expressly codified the significant and compelling state interest 23 “direct[ing] special attention” to protecting elders, like Decedent, because “they are more subject to 24 risks of abuse, neglect, and abandonment.” (Welf. & Inst. Code § 15600(b), emphasis added). The 25 State further codified that “[i]t is the further intent of the Legislature in adding Article 8.5 26 (commencing with Section 15657) to this chapter to enable interested persons to engage attorneys to 27 -6- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL ATTENDANCE AT DEPOSITIONS; REQUEST FOR SANCTIONS 1 take up the cause of abused elderly persons and dependent adults,” such as the present lawsuit 2 brought by Plaintiffs. (Welf. & Inst. Code § 15600(j)). 3 As discussed herein, Defendants’ continued refusal to produce the witnesses noticed for 4 deposition is without merit and without substantial justification. These witnesses must be provided 5 so that Plaintiffs can adequately prepare for preferential trial set for January 8, 2024. 6 A. The Noticed Depositions of Facility Staff are Directly Relevant to Plaintiffs’ 7 Claims, as These Witnesses Have Firsthand Knowledge of the Care and 8 Treatment Provided to Decedent at the Facility. “Relevant to the subject matter” is broader than relevancy to the issues which determines 9 admissibility of evidence at trial. (Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial 10 (TRG 2010) ¶8:66, citing Bridgestone-Firestone Inc. v. Sup. Ct. (1992) 7 Cal.App.4th 1384, 1392.) 11 The depositions requested will lead to testimony that is directly relevant to the allegations in 12 Plaintiffs’ Complaint, in which Plaintiffs allege that Defendants failed to provide an adequate 13 number of sufficiently trained staff to provide care to their residents, causing injury to the 89-year- 14 old Decedent. Again, the crux of this case is Plaintiffs’ claim that Defendants’ reckless neglect 15 caused Decedent to suffer serious physical abuse, on multiple occasions, at the hands of another 16 resident living at the Facility with resulting injuries, including several serious bruises on her face, 17 breasts, and chest as well as multiple open wounds on both of her forearms. According to 18 Defendants’ own documentation, Rickay Hidalgo, Edie Cano, Heidi Shafer, Samantha Davidson, 19 Minerva Guzman, Mikayla Arellano, Redonna Massey and Sandra Cupa were all directly involved 20 in the care and treatment provided to Decedent while she was a resident at the Facility. According to 21 documents produced by Defendants, Rickay Hidalgo, Edie Cano, Heidi Shafer, Samantha Davidson, 22 Minerva Guzman, Mikayla Arellano, Redonna Massey and Sandra Cupa are nurses, medication 23 technicians, caregivers, and administrators who created documentation, including incident reports 24 and/or narrative charting, regarding the abuse of Decedent during her admission to the Facility. 25 Plaintiffs are informed and believe that Samantha Davidson is and was Defendants’ Executive 26 Director during Decedent’s admission to the Facility. Plaintiffs are informed and believe that Edie 27 -7- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL ATTENDANCE AT DEPOSITIONS; REQUEST FOR SANCTIONS 1 Cano was Defendants’ Health Services Director during Decedent’s admission to the Facility. 2 Plaintiff is further informed and believes that Mikayla Arellano is Defendants’ Memory Care 3 Director. 4 Plaintiffs are entitled to take depositions of persons most knowledgeable and corporate 5 managing agents regarding staffing. As the court held in Fenimore v. Regents of University of 6 California (2016) 245 Cal.App.4th 1339, 1349-50, a facility's decision to understaff is evidence of 7 reckless neglect under EADACPA. Plaintiffs have also alleged that Defendants entirely control the 8 financial operations at the Facility, and that in that connection, they entirely strip the Facility of 9 assets and thereby are a direct cause of the Facility's egregious care. Indeed, Plaintiffs allege that 10 Defendants control the operations at the Facility in fundamental ways and thus are directly liable for 11 the reckless neglect that Decedent suffered. Plaintiffs believe that the requested depositions will 12 show that Defendants set the budget and control the finances of the Facility, among other things, 13 and that the failure to adequately budget for sufficient staff in numbers and training was a 14 substantial contributing factor to Defendants’ reckless neglect of Decedent. As the above makes 15 clear, evidence of the Facility’s staffing levels and the training of the staff is squarely relevant to 16 Plaintiffs’ theory of liability against Defendants. 17 To date, Defendants have not produced any the deponents noticed for deposition by 18 Plaintiffs other than Rickay Hidalgo. (Guadagni Decl., ¶18.) Defendants’ continued refusal to 19 provide these deponents for testimony on topics that are relevant and discoverable is meritless and 20 without substantial justification. 21 Plaintiffs are informed and believe that all of these Facility staff and managing agent 22 witnesses have firsthand knowledge of the assaults on Decedent and her related injuries and death. 23 These noticed deponents are key witnesses regarding the allegations in Plaintiffs’ Complaint. 24 Therefore, Plaintiffs respectfully request this Court grant this motion and require Defendants to 25 produce the requested deponents for deposition within seven days and provide a date certain within 26 three days of the hearing on this motion. 27 -8- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL ATTENDANCE AT DEPOSITIONS; REQUEST FOR SANCTIONS B. The Depositions of the Defendants’ Supervisors, Directors and Persons Most 1 Knowledgeable are Directly Relevant to Notice and Ratification by a Managing 2 Agent – a Necessary Element of Plaintiffs’ Case. Plaintiffs are informed and believe that the Executive Director, Memory Care Director, 3 supervisor of Rickay Hidalgo, the Regional Nurse assigned to the Facility during the time period of 4 May 1, 2019, to and including January 1, 2022, the Vice President of Regulatory Compliance (or 5 equivalent) assigned to the Facility during the time period of May 1, 2019, to and including January 6 1, 2022, and the Health Services Director (or equivalent) assigned to the Facility during the time 7 period of May 1, 2019, to and including January 1, 2022 and the requested persons most 8 knowledgeable will provide critical testimony with respect to the Facility’s systemic staffing and 9 training failures and/or Decedent’s injuries, testimony which is directly relevant and essential to 10 Plaintiffs’ case, including testimony regarding the assailant Kelland “Keck” Lancaster, the care and 11 treatment at the Facility, and staffing and training at the Facility, as well as money syphoned out of 12 the Facility to related parties instead of providing adequate staffing at the Facility. 13 These deponents are officers and managing agents of the Facility and are legally responsible 14 for the management and operation of the Facility, including their responsibility to ensure the Facility 15 has enough staff to meet the needs of its residents, including Decedent. Given Plaintiffs’ allegations 16 of insufficient staffing as a direct cause of Decedent’s injuries at the Facility, questions about the 17 Facility’s expenses and related party transactions are directly relevant to this case, because money 18 that is syphoned out of the Facility to related parties means less money for adequate staffing to 19 provide sufficient monitoring and care to the residents, including Decedent. 20 Inherent in Plaintiffs’ claims of recklessness, oppression, fraud or malice, is the fact that a 21 managing agent, officer, or director knew of or ratified wrongful conduct. (See e.g., CACI 3102B, a 22 jury instruction for enhanced remedies under EADACPA). Additionally, in any negligence or elder 23 abuse case, the issue of notice – or whether defendants had advance knowledge of a substandard 24 condition – is a key element. Plaintiffs must be allowed to depose witnesses regarding the 25 management and ownership structure of the Facility and its corporate owners and related parties and 26 also about what Defendants’ managing agents knew about the conditions at the Facility, and 27 -9- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL ATTENDANCE AT DEPOSITIONS; REQUEST FOR SANCTIONS 1 Defendants’ investigation and response to Decedent’s injuries and other issues regarding resident 2 care at the Facility. 3 As Defendants are aware, the Facility is required by California law to comply with certain 4 minimum staffing and training requirements to meet the needs of the residents. (See, e.g., 22 C.C.R. 5 § 87411(a) [“Facility personnel shall at all times be sufficient in numbers, and competent to provide 6 the services necessary to meet resident needs”].) And as a result of the inadequate staffing, Decedent 7 was injured and died. Thus, the depositions of the requested deponents, including Defendants’ 8 managing agents, are essential to Plaintiffs’ case. 9 This information is also relevant as much of the deponents’ anticipated testimony seeks to 10 identify the duties that the various entities and individuals are responsible for carrying out and the 11 relationship between all of the actors responsible for providing care to residents, including 12 Decedent. Further, this testimony is directly relevant to Plaintiffs’ claim of elder neglect, as it goes 13 to several matters including, but not limited to, the managing agents’ knowledge of their failure to 14 adequately ensure the safety of the residents, adequately supervise residents, and/or adequately staff 15 the Facility and train that staff. As Defendants know, wrongful conduct by a managing agent, 16 including recklessness and/or ratification, is one of the elements Plaintiffs must satisfy to seek 17 heightened remedies under EADACPA. This information is typically sought and provided in these 18 cases. 19 Additionally, because Plaintiffs have alleged that Defendants control the operations at the 20 Facility in fundamental ways and thus are directly liable for the injuries that Decedent suffered, 21 these depositions are also necessary for discovery on issues of each Defendant’s liability, as well as 22 to Plaintiffs’ allegations of Defendants’ agency, joint venture, and alter ego. 23 C. Any Possible “Apex” Objection is Misplaced. 24 Although Defendants did not raise an “apex” objection in their served objections, Plaintiffs 25 anticipate that Defendants will argue in their opposition to this motion that the depositions of the 26 Health Services Director, the Regional Nurse assigned to the Village at Seven Oaks Assisted Living 27 and Memory Care, the Supervisor of the Regional Director of Operations, the Vice President of -10- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL ATTENDANCE AT DEPOSITIONS; REQUEST FOR SANCTIONS 1 Regulatory Compliance, and the Regional Director of Operations, as managing agents, are 2 categorically protected by the “apex” doctrine. As the word “apex” implies, the doctrine only 3 protects officials at the “highest” level of the corporation. Mere executive titles and simple 4 assertions that the potential deponent is a “senior corporate officer” is not enough to satisfy this 5 burden. Protecting executive officers who are part of the governing body of the skilled nursing 6 facility at issue would render the “apex” doctrine moot. The doctrine actually requires these 7 managing agents to be deposed before “apex” witnesses. Permitting these managing agents to 8 qualify under the doctrine would erase any distinction between the “apex” and governing board 9 officers and thus undermine the essence of the doctrine. The doctrine was not meant to be a tool for 10 evading relevant and permissible discovery. 11 Moreover, the Health Services Director, the Regional Nurse assigned to the Facility, the 12 Supervisor of the Regional Director of Operations, the Vice President of Regulatory Compliance, 13 and the Regional Director of Operations are direct witnesses to Plaintiffs’ claims in this case. The 14 "apex” doctrine plainly does not apply to fact witnesses with direct knowledge of the issues in the 15 lawsuit. (Liberty Mut. Ins. Co. v. Superior Court, 10 Cal. App. 4th 1282, 1289) [holding that the 16 opposing party is entitled to depose a high-level corporate official as long as "the plaintiff has 17 shown good cause that the official has unique or superior personal knowledge of discoverable 18 information"].) In Liberty Mutual, the plaintiff sought to take the deposition of the CEO of a 19 workers compensation insurance company when the company denied coverage to an injured worker. 20 The Court found that the only link to the handling of worker’s insurance claim “was counsel's act of 21 copying him, by title only, on two letters which would have been automatically rerouted to a lower 22 level employee.” (Id. at 1286.) Here, however, The Health Services Director, the Regional Nurse 23 assigned to the Village at Seven Oaks Assisted Living and Memory Care, the Supervisor of the 24 Regional Director of Operations’, the Vice President of Regulatory Compliance, and the Regional 25 Director of Operations are corporate managing agents who are closely involved in making decisions 26 regarding the finances, staffing and training at Defendants’ facilities, including The Village At 27 Seven Oaks Assisted Living And Memory Care. -11- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL ATTENDANCE AT DEPOSITIONS; REQUEST FOR SANCTIONS 1 As discussed above, any potential “apex” objections by Defendants are meritless, as these 2 depositions are necessary for discovery on issues of each Defendants’ liability, as well as to 3 Plaintiffs’ allegations of Defendants’ agency, joint venture, and alter ego. In an elder abuse cause of 4 action that seeks enhanced remedies, as exists in this case, Plaintiffs must prove recklessness, 5 oppression, fraud or malice. Inherent in recklessness, oppression, fraud or malice, is the fact that a 6 managing agent, officer, or director knew of or ratified wrongful conduct. (See, e.g., CACI 3102B, a 7 jury instruction for enhanced remedies under EADACPA). Additionally, in any negligence or elder 8 abuse case, the issue of notice – or whether defendants had advance knowledge of a substandard 9 condition – is a key element. Plaintiffs must be allowed to depose witnesses regarding the corporate 10 structure of The Village at Seven Oaks AL MC, LLC dba The Village at Seven Oaks Assisted 11 Living and Memory Care, Seven Oaks AL & MC, Frontier Management LLC, Frontier Senior 12 Living, LLC, and also about what the managing agents of each corporate entity knew about the 13 conditions at the Facility, and Defendants’ investigation and response to Decedent’s injuries and 14 death and other issues regarding resident care. And while it is true that these deponents may not 15 have met, contacted, or physically cared for Decedent, as the corporate managing agents they likely 16 knew of or ratified wrongful conduct that caused injuries to Decedent, including inadequate staffing 17 of the Facility, insufficient training, etc. The only way that Plaintiffs can explore these deponents’ 18 knowledge as to these issues is by taking their depositions. 19 As described herein, testimony of corporate managing agents such as the Health Services 20 Director, the Regional Nurse assigned to the Village at Seven Oaks Assisted Living and Memory 21 Care, the Supervisor of the Regional Director of Operations’, the Vice President of Regulatory 22 Compliance, and the Regional Director of Operations and others with respect to the Facility’s 23 systemic staffing and training failures, corporate structure, and/or Decedent’s injuries is directly 24 relevant and essential to Plaintiffs’ case. Plaintiff has a right to depose corporate managing agents 25 regarding their involvement in decisions relevant to, inter alia, the Facility’s staffing, training and 26 policies and procedures, the relationship between the corporate entities, the care and treatment of 27 residents, and compliance with regulations. Therefore, Plaintiffs respectfully request this Court -12- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL ATTENDANCE AT DEPOSITIONS; REQUEST FOR SANCTIONS 1 grant this motion and require Defendants to provide dates certain within three days of the hearing on 2 this motion and to produce the requested deponents for deposition within seven (7) days and/or 3 provide last known contact information within three calendar days of this motion for any witness 4 they are unable to contact, produce and/or represent. 5 IV. MONETARY SANCTIONS ARE APPROPRIATE 6 Monetary sanctions against Defendants are appropriate here. (See C.C.P. §2025.450.) 7 Pursuant to C.C.P. § 2023.010, misuses of the discovery process include “(d) failing to respond or to 8 submit to an authorized method of discovery.” (Id.) 9 Here, despite efforts by Plaintiffs to meet and confer regarding ongoing discovery issues, 10 Defendants have chosen to fail to comply with the discovery process despite Plaintiffs’ clear right to 11 these depositions, and despite a rapidly nearing preferential trial date. Defendants’ delaying tactics 12 constitute bad faith actions which should be sanctioned under the Code. Defendants’ prompt and 13 proper responses to Plaintiffs’ requests and deposition notices would have prevented the need to file 14 this motion. However, despite every attempt by Plaintiffs to meet and confer, Defendants have not 15 complied and have skirted clear requests and simple calendaring. Plaintiffs should be awarded 16 monetary sanctions as compensation for time and expenses. Plaintiffs have incurred costs of $60.00 17 dollars for filing this motion, and attorneys’ fees of $5,500.00. (See Guadagni Decl., ¶18.) Sanctions 18 in the amount of $5,560.00 should be imposed against Defendants. 19 Additionally, Plaintiffs request pursuant to C.C.P. § 2023.030 that the Court in its discretion 20 impose issue or evidence sanctions due to Defendants’ misuse of the discovery process as described 21 herein. 22 V. CONCLUSION 23 Plaintiffs’ Deposition Notices seek discoverable and highly relevant information. Defendants 24 have failed to produce witnesses for deposition as discussed herein. Plaintiffs respectfully request 25 this Court to order Defendants to provide dates certain for each of the witnesses listed in Plaintiffs’ 26 Deposition Notices within three (3) calendar days of this motion for depositions and to produce the 27 requested deponents for deposition within seven (7) days and/or provide last known contact -13- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL ATTENDANCE AT DEPOSITIONS; REQUEST FOR SANCTIONS 1 information within three (3) calendar days of this motion for any witness they are unable to contact, 2 produce and/or represent; to pay sanctions in the amount of $5,560.00 for the misuse of the 3 discovery process and prejudice to Plaintiffs, and for such other sanctions the Court in its discretion 4 deems appropriate due to Defendants’ misuse of the discovery process. 5 Dated: November 27, 2023 STEBNER GERTLER GUADAGNI & KAWAMOTO 6 7 By: _________________________________________ 8 Kathryn Stebner Karman Guadagni 9 Deena Zacharin Kelsey Craven 10 Attorneys For Plaintiffs 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 -14- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL ATTENDANCE AT DEPOSITIONS; REQUEST FOR SANCTIONS Billy Cates, et al. v. The Village at Seven Oaks AL MC, LLC, dba, et al. 1 Kern County Superior Court, Case No. BCV-22-102864 2 PROOF OF SERVICE 3 I, the undersigned, declare: 4 I am a citizen of the United States of America, am over the age of eighteen (18) years, and not a party to the within action. I am an employee of Stebner Gertler Guadagni & Kawamoto, and my 5 business address is 870 Market Street, Suite 1285, San Francisco, California 94102. On the date below, I caused to be served the following documents: 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ 7 MOTION TO COMPEL ATTENDANCE AT DEPOSITIONS; REQUEST FOR SANCTIONS 8 on the parties involved, addressed as follows: Kirsten Fish William C. Wilson 9 NEEDHAM, KEPNER & FISH LLP Nicholas Prukop 1960 The Alameda, Suite 210 WILSON GETTY LLP 10 San Jose, CA 95126 12555 High Bluff Drive, Suite 270 Phone: (408) 261-4226 San Diego, California 92130 11 Fax: (408) 244-7815 Telephone: 858.847.3237; Facsimile: 858.847.3365 E-mail: kfish@nkf-law.com Email: bwilson@wilsongetty.com 12 Email: nprukop@wilsongetty.com Co-Counsel for Plaintiffs Email: jwillard@wilsongetty.com 13 Email: jmartinez@wilongetty.com 14 Attorneys For Defendants THE VILLAGE AT SEVEN OAKS AL MC, LLC Dba THE VILLAGE AT 15 SEVEN OAKS ASSISTED LIVING AND MEMORY CARE; SEVEN OAK ASSISTED LIVING AND 16 MEMORY CARE LLC (Erroneously Sued And Served As SEVEN OAKS AL & MC); FRONTIER 17 MANAGEMENT LLC, FRONTIER SENIOR LIVING, LLC And SAMANTHA DAVIDSON 18 X BY ELECTRONIC SERVICE: I electronically filed the document(s) listed above with the 19 Clerk of the Court by using the Court’s approved E-filing provider, One Legal, and caused a copy of said document(s) to be E-Served through One Legal to the persons at the e-mail 20 address(es) listed above on this date. No electronic message or other indication that the transmission was unsuccessful was received within a reasonable time after the transmission. 21 BY EMAIL/ELECTRONIC SUBMISSION: Only by e-mailing the document(s) listed 22 above to the persons at the e-mail address(es) listed on this date pursuant to Code of Civil Procedure § 1010.6 and California Rules of Court Rule 2.251. No electronic message or 23 other indication that the transmission was unsuccessful was received within a reasonable time after the submission. 24 25 I declare under penalty of perjury under the laws of the State of California that the foregoing is 26 true and correct. Executed at San Francisco, California on November 27, 2023. 27 28 Ann Williams 1 PROOF OF SERVICE