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LEWIS BRISBOIS BISGAARD & SMITH LLP F Superior Court of California F
RIMA M. BADAWIYA, SB#204174 County of Butte
E-Mail: Rima.Badawiya@ lewisbrisbois.com |
JENNIFER G. SO, SB#243158 6/10/2020 L
E-Mail: Jennifer.So@ lewisbrisbois.com
IAN M. MACKINS, SB#315216
E-Mail: Ian.Mackins@ lewisbrisbois.com Kimberly fener, Clerk D
650 East Hospitality Lane, Suite 600 By —L Deputy
San Bernardino, Califomia 92408 & lectronically FILED
Telephone: 909.387.1130
Facsimile: 909.387.1138
Attorneys for Defendants, WINDSOR CHICO
CARE ENTER, LLC; LEE SAMSON;
LAWRENCE FEIGEN; DONNY FELDMAN;
and CHICO TERRACE HEALTHCARE &
WELLNESS CENTRE, LP
10
11
SUPERIOR COURT OF THE STATE OF CALIFORNIA
12
COUNTY OF BUTTE
13
14
HELEN RICE, by and through her successor CASE NO. 17CV01914
15 in interest, ARLENE PHALEN BEIMER, [Assigned for All Purposes to:
THOMAS PHALEN and ARLENE PHALEN The Hon. Tamara L. Mosbarger, Dept. 1]
16 BEIMER individually,
DEFENDANTS’ REPLY TO PLAINTIFFS’
17 Plaintiffs, OPPOSITION TO DEFENDANTS’
NOTICE OF MOTION AND MOTION
18 vs. FOR RECONSIDERATION; AND THE
DECLARATION OF IAN M. MACKINS
19 WINDSOR CHICO CARE CENTER, LLC; IN SUPPORT THEREOF
LEE SAMSON; LAWRENCE FEIGEN;
20 DONNY FELDMAN; CHICO TERRACE Date: June 17, 2020
HEALTHCARE & WELLNESS CENTRE, Time: 9:00 a.m.
21 LP and DOES 1 through 50, inclusive, Dept.: 1
22 Defendants. Action Filed: 10/13/17
Trial Date: 02/08/21 04/20/20 03/2549
23
24 Defendants hereby submit this Reply to Plaintiffs’ Opposition to Defendants’ Motion for
25 Reconsideration regarding Plaintiff Thomas Phalen’s Request for Production of Documents
26 number 56 (Activities of Daily Living) and Request for Production of Documents number 66
27 (Resource Utilization Group (“RUG” scores), as well as the Declaration of Cameron Easterling in
28 support.
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1||I1 BEFORE CONSIDERING THE NEW AND DIFFERENT FACTS AND
CIRCUMSTANCES THAT SERVE AS THE BASIS OF DEFENDANTS’ MOTION
FOR RECONSIDERATION, THIS COURT SHOULD EXAMINE THE
DISCOVERY SOUGHT BY PLAINTIFFS AND THE DOCUMENTS NOW IN
PLAINTIFFS’ POSSESSION
On June 5, 2020, Defendant Windsor Chico Care Center (hereinafter “Windsor Chico”)
served its response to Plaintiff's Request for Production of Documents, Set Four. Request for
Production of Documents, Set Four, Number 88 sought the following:
“All DOCUMENTS and ESI which reflect staffing levels at the FACILITY
during the period March 1, 2016 to August 31, 2016, inclusive. This request
includes, but is not limited to, DOCUMENTS regarding planned, budgeted,
and/or projected staffing patterns for nursing personnel at the FACILITY.”
10 Defendant provided the following response to the request:
11 “Objection —this request is overbroad as to scope. Objection —this request is vague
12 and ambiguous as to the term “staffing levels” despite the fact that the
propounding party provides an example of documents reflecting/consisting of
13 staffing levels.
14 Subject to and without waiving the foregoing objections, Defendant responds as
follows: after a diligent search and reasonable inquiry, Defendant will comply
15 with this request in part and produce some, but not all, of the requested documents
16 as some of the documents are no longer in Defendant’s possession, custody, or
control. Defendant will produce documents responsive as Exhibits “7” and “8”
17 attached hereto.
18 Discovery and investigation are continuing and ongoing and Defendant reserves
the right to amend and/or supplement its responses.”
19
20 (See the Declaration of Ian M. Mackins (hereinafter “Mackins Decl.”) § 2,
Exhibit 1.)
21
Defendant produced Certification and Survey Provider Enhanced Reporting (CASPER)
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reports generated by the Centers for Medicare and Medicaid Services (“CMS”) for the months July
23
2016 and August 2016. (Id., Exhibit 7 to Exhibit 1.) The CASPER reports are generated by CMS
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in response to a skilled nursing facility’s (like Windsor Chico Care Center) submission of Payroll
25
Based Journal, which is a system developed by CMS for skilled nursing facility’s to submit
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staffing data regarding the facility. The reports reveal that for the month of July 2016, Windsor
27
Chico had six (6) registered nurses employed for the month, and the total hours worked by those
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nurses collectively amounted to 748.25 hours. (Id.) Since Windsor Chico is a facility licensed for
60 to 99 beds, per California Code of Regulations section 72329, the facility must have at least one
registered nurse or licensed vocational nurse, awake on duty, in the facility at all times, day and
night, in addition to the director of nursing services, and the director of nursing services must not
have charge nurse responsibilities. (See Cal. Code of Regs. (“C.C.R.”) § 72329.) Thus, based on
this staffing requirement, Windsor Chico was required to have 248 hours worked by registered
nurses for the month of July 2016. Since it had 748.25 hours, Windsor Chico had over three times
the required staffing for registered nurses for the month of July 2016. For August 2016, the report
shows that Windsor Chico had six (6) registered nurses employed for the month, for a total of
10 743.72 hours worked. (Id.) The facility was required to have 248 hours worked by registered
11 nurses for the month. Thus, the facility again had nearly three times the required staffing for
12 registered nurses for the month of August 2016.
13 Defendant Windsor Chico also submitted its census data, which includes nursing hours per
14 patient day (‘NHPPD”) to Plaintiff during discovery. (See Mackins Decl. § 3.) This staffing data
15 was mandated by California Health and Safety Code section 1276.5, and required that skilled
16 nursing facility’s have 3.2 NHPPD. (Id.) This data, which is contained in CMS 612 forms, was
17 reported by Windsor Chico to CMS and consistently showed above the 3.2 NHPPD requirements
18 for the time period of April 2016 to August 2016. (Id.) The truth is that Windsor Chico had
19 exceptional staffing numbers from April 2016 to August 2016, which is the time period of staffing
20 data sought by Plaintiffs. (Id.) This is further supported by the Five Star rating that CMS has
21 awarded Windsor Chico year after year, including the year 2016. (Id.)
22 Based on the foregoing, the discovery already submitted to Plaintiffs should be sufficient
23 to show that there was no understaffing at Windsor Chico. The importance of the discovery still
24 sought by Plaintiffs is minimal given that they already possess sufficient staffing data. Thus, the
25 new and different facts and circumstances that serve as the basis of Defendants’ Motion not only
26 include the devastating effect of the COVID-19 pandemic that has restricted access of non-
27 essential persons to skilled nursing facilities, and has placed significant burdens on skilled nursing
28 facility staff, it is also furthered by Defendants production of additional staffing data that
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conclusively shows that Windsor Chico was beyond sufficiently staffed to meet the requirements
of applicable regulations and the needs of its residents.
II. PLAINTIFFS’ CONTENTION THAT THE COVID-19 IS OF LITTLE IMPACT TO
THE PRODUCTIONS AT ISSUE IS TROUBLING
Plaintiffs admit the broader impact of COVID-19, however, Plaintiffs somehow fail to
admit that COVID-19 has had devastating effects on the Califomia skilled nursing facility
community. The impact of the COVID-19 pandemic was set forth in Defendants’ Motion, which
establishes new and different facts and circumstances that further establish the burdensomeness of
Plaintiffs’ requests. However, since filing the Motion on March 23, 2020, the impact has become
even more severe as the COVID-19 pandemic, which translates to additional and significant
10
burdens and concerns as to the production of documents in response to Plaintiffs’ requests. The
11
impact on Califomia skilled nursing facilities has been even greater than the impact on the general
12
population.
13
The Centers of Disease Control and Prevention (CDC) has reported that older adults and
14
people who have severe underlying medical conditions like heart or lung disease or diabetes seem
15
to be at higher risk for developing more serious complications from COVID-19 illness. (See
16
Mackins Decl. § 4, Exhibit 2, (How COVID-19 Spreads, Centers of Disease Control and
17
Prevention, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-
18
spreads.html, (last visited June 9, 2020).) Furthermore, and as of the date of this Motion,
19
according to the CDC the United States has over 1,956,421 confirmed and reported cases of
20
Coronavirus and over 110,925 deaths from Coronavirus. (See Mackins Decl. § 5, Exhibit 3 (Cases
21
in U.S., Centers of Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-
22
ncov/cases-updates/cases-in-us.html, (last visited June 9, 2020).) Moreover, the California
23
Department of Public Health (DPH) has confirmed that as of June 8, 2020, the total number of
24
Coronavirus cases was 133,489, and 4,697 deaths. (See Mackins Decl. § 6, Exhibit 4 (COVID-19
25
by the Numbers, California Department of Public Health,
26
https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/Immunization/ncov2019.aspx, (last visited
27
June 9, 2020).) As previously set forth in Defendants’ Motion, as of March 21, 2020, the Butte
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County Department of Public Health (“BCPHD”) reported that Butte County had two (2) positive
tests for COVID-19. Now, Butte County has had 71 confirmed total cases and 1 reported death.
Despite the still significant threat of COVID-19 in Butte County, Plaintiffs cannot escape
the reality that there is still a government mandatory directive in place limiting all visitor’s
and non-essential health care staff at healthcare facilities such as Windsor Chico.
Specifically, the CDC has announced that all facilities should adhere to current CDC infection
prevention and control recommendations, including universal source control measures; visitor
restrictions; screening of residents and healthcare providers; and promptly notifying the health
department about residents or healthcare providers with suspected or confirmed COVID-19,
10 residents with severe respiratory infection resulting in hospitalization or death, or less than 3
11 residents or healthcare providers with new-onset respiratory symptoms within 72 hours of each
12 other. (See Mackins Decl. § 7, Exhibit 5 (Cases in U.S., Centers of Disease Control and
13 Prevention, https://www.cdc.gov/coronavirus/2019-ncov/hcp/nursing-homes-responding.html,
14 (last visited June 9, 2020.) Compliance with these procedures has surely placed significant and
15 additional burdens on Windsor Chico staff.
16 The burden on skilled nursing facilities like Windsor Chico is further aggravated by the
17 fact that not only non-essential health care staff are still not allowed in the facility, but also reports
18 from experts that the lift of the Governor’s Stay At Home Order and the reopening of businesses
19 has shown spikes in reported cases. For example, the BCPHD website, which is updated Monday
20 through Friday by 4 p.m., provides the following:
21 “Butte County COVID-19 case reporting will align with how the Califomia
Department of Public Health is reporting cases. Now that community spread has
22 increased throughout the United States and is now the primary reason for new
cases, including California, breaking down the case count into separate categories
23
is no longer recommended. The number of reported cases are only the confirmed
24 cases that are reported to Public Health from labs and healthcare providers.
Access to testing is limited. Because of this, we believe there are many more
25 people infected with COVID-19 in Butte County than we know of.”
26 (See Mackins Decl. § 8, Exhibit 6, (COVID-19 Updates,
http://www.buttecounty.net/publichealth/Home/fbclid/IwA R3f£SGcPIbTuP90MA LlinPe68ft2E_vsc
27
Qm2hD1GwwyilvdX og7KZwy 9vTw, (last visited June 9, 2020.)
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Thus, as the BCPHD is following the lead of the California DPH, and since there is still a
government mandatory directive in place limiting all visitor’s and non-essential health care staff at
healthcare facilities such as Windsor Chico, and given the significant burdens in place for
compliance with these procedures, Windsor Chico must still dedicate its essential resources to the
care and treatment of its residents, which includes protection against COVID-19, and not
gathering, redacting, and producing documents to comply with the Order.
Til. PLAINTIFFS’ ASSERTION THAT ANY IMPACT OF THE COVID-19 SHOULD
BE REMEDIED WITH A CONTINUANCE OF THE PRODUCTION, NOT AN
EXTINGUISHING OF PLAINTIFFS’ RIGHTS, IS BASED ON CONJECTURE
Although the Court has made its ruling as to the production of the facility Windsor Chico’s
10
activities of daily living sheets for all residents and the RUG scores for all the residents (which are
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both for the time period of April 17, 2016 to August 21, 2016), the burdensomeness of the
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requests has not been resolved, and is certainly even more frustrated by the COVID-19 pandemic.
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This was the exact basis for Defendants’ Motion as the measures put in place to counteract the
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COVID-19 qualify as new and different facts and circumstances. It simply cannot be ignored that
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the facility is tasked with making the decision between complying with the request over the
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Court’s ruling or saving the lives of its many elderly, infirm, and disease-vulnerable residents.
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Defendants are simply requesting that this Court reconsider its ruling given the COVID-19
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pandemic by performing the same balancing test that it did just before it issued its ruling on the
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subject.
20
In fact, Califomia Code of Civil Procedure section 2019.030 states:
21
“The court shall restrict the frequency or extent of use of a discovery method
22 provided in Section 2019.010 if it determines either of the following:
23 (1) The discovery sought is unreasonably cumulative or duplicative, or is
obtainable from some other source that is more convenient, less burdensome, or
24 less expensive.”
25
(C.C.P.§ 2019.030; see also, C.C.P. .§ 2019.010 which sets forth that inspections of
26 documents, things, and places are obtainable through discovery.)
27 Furthermore, per Califomia Code of Civil Procedure section 190.30 provides:
28 “The court is required to limit the scope of discovery if it determines that the
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burden, expense, or intrusiveness of that discovery clearly outweighs the
likelihood that the information sought will lead to the discovery of admissible
evidence.”
(C.C.P. § 190.30; see also, C.C.P. § 2017.020(a); see also, Calcor Space Facility, Inc. v.
Superior Court (1997) 53 Cal. App. 4th 216, 223.)
In Calcor Space Facilityv. Superior Court, the petitioner sought mandamus relief from an
order of the superior court, which compelled petitioner to produce documents in an action between
petitioner’s competitor and a corporation that had contracted with each other to provide gun
mounts according to contractual specifications. (Id. at 216.) The documents sought to be produced
were the subject of a subpoena served by the plaintiff pursuant to California Code of Civil
10 Procedure section 2020(d). (Id. at 219.) The subpoena included a 12-page demand which the
11 Court of Appeal stated could be condensed to a single sentence—and that is to “[p]roduce
12 everything in your possession which in any way relates to gun mounts”. (Id. at 222.) In response,
13 the petitioner filed a motion for protective order contending that the subpoena was unreasonably
14 burdensome and overly broad for service on a nonparty, sought confidential and proprietary
15 information and was not limited to materials relevant to the subject matter of the suit between the
16 competitor and corporation. (Id. at 220.) In reviewing the petition, the Court of Appeal stated that
17 the petitioner 3G
Ss contentions that the requirement it produce the materials is unduly burdensome
18 and that the bulk of the materials requested lack relevancy (even under the expansive discovery
19 test) are well taken”. (Id. at 221.) The Court of appeal also considered the importance of the
20 discovery sought and the burden of the responding party. (Id. at 222.) The Court of Appeal also
21 asserted that “[a]lthough appellate courts have frequently stated [‘]fishing expeditions[‘] are
22 permissible in discovery, there is a limit.” (See Id. at 224, citing Gonzalez v. Superior Court
23 (1995) 33 Cal. App. 4% 1539.)] The Court even referenced the seminal case in California civil
24 discovery, Greyhound. (Id. at 225.) It stated that had the Greyhound court been able to anticipate
25 the tremendous burdens promiscuous discovery has placed on litigants, it might well have taken a
26 stronger stand against fishing expeditions when it stated that the then new discovery system would
27 be simple, convenient, inexpensive, and would expedite litigation. (Id, citing Greyhound Corp. v.
28 Superior Court (1961) 56 Cal. 2d 355, 384-385.) The Court of Appeal stated that Greyhound’s
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optimism has certainly proven off the mark. (Id.)
The foregoing authority shows that a mere continuance is not the proper mechanism to
resolve the dispute. Instead, the Code empowers this Court to limit the scope of discovery in
consideration that the burden, expense, or intrusiveness of that discovery clearly outweighs the
likelihood that the information sought will lead to the discovery of admissible evidence. As
previously set forth in the declaration of Windsor Chico’s facility administrator, John Crowley,
which was submitted in support of Defendants’ Opposition to Plaintiffs’ Motion to Compel
Further Responses to Plaintiff's Request for Production of Documents, Sets One and Two,
numbers 56 and 66, the production of certified nursing assistant (CNA)/activities of daily living
10 (ADL) tracking sheets for all residents and the RUG scores for all the residents for the time period
11 of April 17, 2016 to August 21, 2016 would be extremely burdensome to the facility. (See
12 Mackins Decl. § 9, Exhibit 7, the Declaration of John Crowley (hereinafter “Crowley Decl.”) i 3-
13 12 in support of Defendants’ Opposition to Plaintiffs’ Motion to Compel Further Responses to
14 Request for Production of Documents, Sets One and Two.) Specifically, Mr. Crowley declared
15 that significant time and expense would be incurred because in order to comply with Plaintiff's
16 request since Windsor Chico staff would need to print approximately 12,100 pages of documents
17 which all require review and redaction. (Id. at § 10.) Moreover, this estimation was based on the
18 previous relevant CNA/ADL tracking sheets for Decedent Helen Rice, which totaled 132 pages in
19 length. (Id. at 9.) It should be noted that the declaration of Mr. Crowley was made prior to the
20 COVID-19 pandemic, and thus, now there would be an even greater burdens in producing the
21 ordered documents. Furthermore, the task would also require the redaction of private/confidential
22 information, including Health Insurance Portability and Accountability Act (HIPAA) protected
23 information of each resident. (Id. at § 9.) Given that Windsor Chico had close to 76 residents at its
24 facility around the time of production, and the fact that some residents were discharged from the
25 facility and some were admitted/readmitted to the facility over the nearly five month period the
26 order requires for production of documents, the number of residents would certainly increase.
27 Moreover, the production of the documents is not as easy as Plaintiffs’ counsel has claimed, and
28 even though the information is stored electronically, the information would have to be gathered for
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each individual resident residing at that facility for the ordered time period. Then, the information
subject to privilege would need to be redacted manually since. Last, the facility’s server may be
compromised from the scanning and sending of such a large amount of documents, or the
documents would need to be printed and shipped to Defendants’ counsel’s office.
Similarly, as to the RUG scores, the same burdensomeness was set forth in Mr. Crowley’s
declaration. (Id. at 111 & 12.) For example, Mr. Crowley declared that significant time and
expense would be incurred because in order to comply with Plaintiff's request as Windsor Chico
staff would need to make necessary redactions of all confidential information for every resident
for a one year period. (Id. at 12.) And even though this time period has since changed by the
10 Court’s ruling limiting the time period to April 17, 2016 to August 21, 2016, the task is still
11 burdensome and would cause significant resources to be diverted to performing such tasks. Thus,
12 the burdensomeness of the request is still apparent.
13 The likelihood that the CNA/ADL tracking sheets for each resident of the facility and the
14 RUG scores for each resident of the facility will lead to the discovery of admissible evidence is
15 severely outweighed by the burden to Defendant Windsor Chico. First, how could statistics
16 regarding the care and treatment of other residents of Windsor Chico possibly be relevant to the
17 determination of the core issue in this case, which is the care and treatment provided to Helen Rice
18 (“Decedent”)? In theory, Windsor Chico staff could have performed excellent care and treatment
19 to all of its residents, excluding Decedent. The opposite can also be true. Windsor Chico staff
20 could have performed excellent care and treatment to Decedent, excluding all other residents.
21 Furthermore, this Court should not be convinced by the anticipated arguments by Plaintiffs in
22 response to this logical assertion. Surely, Plaintiffs will plead to this Court that they must
23 establish a pattern of withholding of care and treatment. However, this pattern of withholding of
24 care and treatment is only relevant as it pertains to Decedent. The knowledge of any understaffing
25 by the facility is only relevant if Plaintiffs can show a pattern of withholding of care and treatment
26 to Decedent, which has not been shown based on the documents which were provided as it
27 pertains to Decedent. This tactic of trying to put the cart before the horse should not be
28 appreciated by this Court. Neither has the claim of understaffing been shown despite Defendants’
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production of the Califommia DPH mandated CMS 612 forms that show nursing hours per patient
day in an effort to comply with Health and Safety Code section 1276.5. Plaintiffs cannot show
this, so they seek to fish for any information they can regarding the facility’s staffing. Based on
the foregoing, it is apparent that the importance of the information requested by Plaintiffs is
clearly outweighed by the burdensomeness of the requests.
Even given the foregoing, Plaintiffs cannot escape the reality that the government’s
mandatory directive limiting all visitor’s and non-essential health care staff at healthcare facilities
such as Windsor Chico, along with the devastation of the COVID-19 pandemic and possibility of
“second wave” or spike in COVID-19 cases, leave much uncertainty as to when the required
10 tasks needed to comply with Plaintiff's requests can be performed. (See Exhibit “7” to
11 Defendants’ Motion.) Certainly, these circumstances should cause concer of the Court. Thus,
12 the argument by Plaintiffs that the impact of the COVID-19 should be remedied by a continuance
13 is based on pure conjecture.
14 Iv. CONCLUSION
15 Based on the foregoing arguments and authority, Defendants respectfully request that this
16 Court grant Defendants’ Motion for Reconsideration of their Opposition to Plaintiffs’ Motion to
17 Compel Further Responses to Request for Production of Documents, Sets One and Two, Numbers
18 56 and 66. Upon reconsideration, Defendants believe that Plaintiffs’ Motion to Compel should be
19 denied as Defendants have clearly established new and different facts and circumstances not
20 before the Court at the time of its ruling on same. Namely, the continuing and devastating effects
21 of COVID-19 present new facts and circumstances that even further frustrate and/or exacerbate
22 the already unduly burdensomeness in complying with the Court’s order regarding same.
23 III
24 III
25 III
26 III
27 III
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1|/ DATED: June 10, 2020 LEWIS BRISBOIS BISGAARD & SMITH LLP
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wy. 2MO
RIMA M. BADAWIYA
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JENNIFER G. SO
5 IAN M. MACKINS
Attomeys for Defendants, WINDSOR CHICO
CARE CENTER, LLC; LEE SAMSON;
LAWRENCE FEIGEN; DONNY FELDMAN;
and CHICO TERRACE HEALTHCARE &
WELLNESS CENTRE, LP
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DECLARATION OF IAN M. MACKINS
I, Ian M. Mackins, declare as follows:
1 I am an attorney duly admitted to practice in all of the courts of the State of
California and I am an associate with Lewis Brisbois Bisgaard & Smith LLP, attomeys of record
for Defendants, WINDSOR CHICO CARE CENTER, LLC; LEE SAMSON; LAWRENCE
FEIGEN; DONNY FELDMAN; and CHICO TERRACE HEALTHCARE & WELLNESS
CENTRE, LP (collectively referred to as “Defendants”), herein. The facts set forth herein are of
my own personal knowledge, and if sworn I could and would competently testify thereto.
2 Defendant Windsor Chico Care Center served its response to Plaintiffs Request for
10 Production of Documents, Set Four. Attached herewith and marked as Exhibit “1” is a true and
11 correct copy of Defendant Windsor Chico Care Center’s responses to Plaintiff's Request for
12 Production of Documents, Set Four, including Exhibit 7 in response to Request for Production of
13 Documents Number 88.
14 3 Defendant Windsor Chico also submitted its census data, which includes nursing
15 hours per patient day (“NHPPD”) to Plaintiff during discovery. This staffing data was mandated
16 by California Health and Safety Code section 1276.5, and required that skilled nursing facility’s
17 have 3.2 NHPPD. This data, which is contained in CMS 612 forms, was reported by Windsor
18 Chico to CMS and consistently showed above the 3.2 NHPPD requirement for the time period of
19 April 2016 to August 2016. The truth is that Windsor Chico had exceptional staffing numbers
20 from April 2016 to August 2016, which is the time period of staffing data sought by Plaintiffs.
21 4 Attached herewith and marked as Exhibit “2” is a true and correct copy of How
22 COVID-19 Spreads, Centers of Disease Control and Prevention,
23 https://www.cdc.gov/coronavirus/2019-ncov/prevent- getting-sick/how-covid-spreads.html, (last
24 visited June 9, 2020.
25 5. As of the date of this Motion, according to the CDC the United States has over
26 1,956,421 confirmed and reported cases of Coronavirus and over 110,925 deaths from
27 Coronavirus. A ttached herewith and marked as Exhibit “3” is a true and correct copy of Cases in
28
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U.S., Centers of Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-
ncov/cases-updates/cases-in-us.html, (last visited June 9, 2020.)
6 Attached herewith and marked as Exhibit “4” is a true and correct copy of
COVID-19 by the Numbers, California Department of Public Health,
https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/Immunization/ncov2019.aspx, (last visited
June 9, 2020).
7 Attached herewith and marked as Exhibit “5” is a true and correct copy of Cases in
U.S., Centers of Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-
ncov/hcp/nursing-homes-responding.html, (last visited June 9, 2020.)
10 8 Attached herewith and marked as Exhibit “6” is a true and correct copy of
11 COVID-19 Updates,
12 http://www. buttecounty.net/publichealth/Home/fbclid/IwA R3fSGcPIbTuP90MA LIinPe68ft2E vs
13 cQm2hD1GwwyilvdX og7KZwY 9vTw, (last visited June 9, 2020.
14 9 Attached herewith and marked as Exhibit “7” is a true and correct copy of, the
15 Declaration of John Crowley in support of Defendants’ Opposition to Plaintiffs’ Motion to
16 Compel Further Responses to Request for Production of Documents, Sets One and Two, Numbers
17 66.
18
19 I declare under penalty of perjury under the laws of the State of California that the
20 foregoing is true and correct and that this declaration was executed on June 10, 2020, at San
21 Bemardino, California.
22
23 [s/ IAN M. MACKINS
Tan M. Mackins
24
25
26
27
28
LEWIS 4811-8554-6687.1
BRISBOIS
BISGAARD DEFENDANTS’ REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ NOTICE OF MOTION AND
& SMITH LP MOTION FOR RECONSIDERATION
ATORNES AT LAW
EXHIBIT 1
LEWIS BRISBOIS BISGAARD & SMITH LLP
RIMA M. BADAWIYA, SB#204174
E-Mail: Rima.Badawiya@ lewisbrisbois.com
JENNIFER G. SO, SB#243158
E-Mail: Jennifer.So@ lewisbrisbois.com
IAN M. MACKINS, SB#315216
E-Mail: Ian.Mackins@ lewisbrisbois.com
650 East Hospitality Lane, Suite 600
San Bernardino, Califomia 92408
Telephone: 909.387.1130
Facsimile: 909.387.1138
Attorneys for Defendants, WINDSOR CHICO
CARE ENTER, LLC; LEE SAMSON;
LAWRENCE FEIGEN; DONNY FELDMAN;
and CHICO TERRACE HEALTHCARE &
WELLNESS CENTRE, LP
10
11
SUPERIOR COURT OF THE STATE OF CALIFORNIA
12
COUNTY OF BUTTE
13
14
HELEN RICE, by and through her successor CASE NO. 17CV01914
15 in interest, ARLENE PHALEN BEIMER, [Assigned for All Purposes to:
THOMAS PHALEN and ARLENE PHALEN The Hon. Tamara L. Mosbarger, Dept. 1]
16 BEIMER individually,
DEFENDANT WINDSOR CHICO CARE
17 Plaintiffs, CENTER, LLC’S RESPONSES TO
PLAINTIFF’S REQUEST FOR
18 vs. PRODUCTION OF DOCUMENTS,
SET FOUR
19 WINDSOR CHICO CARE CENTER, LLC;
LEE SAMSON; LAWRENCE FEIGEN;
20 DONNY FELDMAN; CHICO TERRACE Action Filed: 10/13/17
HEALTHCARE & WELLNESS CENTRE, Trial Date: 02/08/21 04/20/20 03/2549
21 LP and DOES 1 through 50, inclusive,
22 Defendants.
23
PROPOUNDING PARTY: Plaintiff, THOMAS PHALEN
24
RESPONDING PARTY: Defendant, WINDSOR CHICO CARE CENTER, LLC
25
SET NO.: FOUR (4)
26
Pursuant to Califomia Code of Civil Procedure section 2031.210 et seq., Defendant
27
WINDSOR CHICO CARE CENTER, LLC (“Defendant”) hereby provides the following
28
LEWIS 4818-1322-0287.1
BRISBOIS
BISGAARD DEFENDANT WINDSOR CHICO CARE CENTER, LLC’S RESPONSES
& SMITH LLP TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS, SET FOUR
ATIORNEYS AT LAW
responses to Plaintiff THOMAS PHALEN’s (hereinafter “Plaintiff’) Request for Production of
Documents, Set Four.
PRELIMINARY STATEMENT
It should be noted that Defendant has not completed its investigation of the facts relating to
these cases, has not fully completed its discovery in these actions, and has not completed its
preparation for trial. All Respondents of the answers contained herein are based only upon such
information and documents which are presently available and specifically known to Defendant and
disclose only those contentions which presently occur to Defendant. It is anticipated that further
discovery, independent investigation, legal research, and analysis will supply additional facts, add
10 meaning to the known facts, as well as establish entirely new factual conclusions and legal
11 contentions, all of which may lead to substantial additions to, changes in and variations from the
12 contentions and responses set forth herein.
13 The following responses are given without prejudice to Defendant’s right to produce
14 evidence of any subsequently discovered fact or facts which Defendant may later recall.
15 Defendant accordingly reserves the right to change any and all answers herein as additional facts
16 are ascertained, analyses are made, legal research is completed, and contentions are made. The
17 answers contained herein are made in a good faith effort to supply as much factual information as
18 specifically as is presently known, but should in no way be to the prejudice of Defendant in
19 relation to discovery, research, or analysis.
20 GENERAL OBJECTIONS AND RESERVATIONS
21 As to each and every Request in Plaintiff's Request for Production of Documents,
22 Set Four, Defendant states the following:
23 A Defendant has not yet completed its discovery and investigation of the facts giving
24 rise to this action, but has made a diligent, good faith effort to obtain all information responsive to
25 these Requests within Defendant’s possession, custody, or control. Accordingly, these responses
26 are made without prejudice to Defendant’s right to introduce prior to or at the time of trial or
27 otherwise use any additional information it may obtain as a result of Defendant’s continuing
28 discovery and investigation, but Defendant assumes no obligation, beyond that imposed by
LEWIS 4818-1322-0287.1
BRISBOIS
BISGAARD DEFENDANT WINDSOR CHICO CARE CENTER, LLC’S RESPONSES
& SMITH LP TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS, SET FOUR
TORNEWS AT LAW
California Code of Civil Procedure § 2030.210 et seq. to supplement and amend thes
Preview
LEWIS BRISBOIS BISGAARD & SMITH LLP F Superior Court of California F RIMA M. BADAWIYA, SB#204174 County of Butte E-Mail: Rima.Badawiya@ lewisbrisbois.com | JENNIFER G. SO, SB#243158 6/10/2020 L E-Mail: Jennifer.So@ lewisbrisbois.com IAN M. MACKINS, SB#315216 E-Mail: Ian.Mackins@ lewisbrisbois.com Kimberly fener, Clerk D 650 East Hospitality Lane, Suite 600 By —L Deputy San Bernardino, Califomia 92408 & lectronically FILED Telephone: 909.387.1130 Facsimile: 909.387.1138 Attorneys for Defendants, WINDSOR CHICO CARE ENTER, LLC; LEE SAMSON; LAWRENCE FEIGEN; DONNY FELDMAN; and CHICO TERRACE HEALTHCARE & WELLNESS CENTRE, LP 10 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF BUTTE 13 14 HELEN RICE, by and through her successor CASE NO. 17CV01914 15 in interest, ARLENE PHALEN BEIMER, [Assigned for All Purposes to: THOMAS PHALEN and ARLENE PHALEN The Hon. Tamara L. Mosbarger, Dept. 1] 16 BEIMER individually, DEFENDANTS’ REPLY TO PLAINTIFFS’ 17 Plaintiffs, OPPOSITION TO DEFENDANTS’ NOTICE OF MOTION AND MOTION 18 vs. FOR RECONSIDERATION; AND THE DECLARATION OF IAN M. MACKINS 19 WINDSOR CHICO CARE CENTER, LLC; IN SUPPORT THEREOF LEE SAMSON; LAWRENCE FEIGEN; 20 DONNY FELDMAN; CHICO TERRACE Date: June 17, 2020 HEALTHCARE & WELLNESS CENTRE, Time: 9:00 a.m. 21 LP and DOES 1 through 50, inclusive, Dept.: 1 22 Defendants. Action Filed: 10/13/17 Trial Date: 02/08/21 04/20/20 03/2549 23 24 Defendants hereby submit this Reply to Plaintiffs’ Opposition to Defendants’ Motion for 25 Reconsideration regarding Plaintiff Thomas Phalen’s Request for Production of Documents 26 number 56 (Activities of Daily Living) and Request for Production of Documents number 66 27 (Resource Utilization Group (“RUG” scores), as well as the Declaration of Cameron Easterling in 28 support. LEWIS 4811-8554-6687.1 BRISBOIS BISGAARD DEFENDANTS’ REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ NOTICE OF MOTION AND & SMITH LP MOTION FOR RECONSIDERATION ATORNES AT LAW 1||I1 BEFORE CONSIDERING THE NEW AND DIFFERENT FACTS AND CIRCUMSTANCES THAT SERVE AS THE BASIS OF DEFENDANTS’ MOTION FOR RECONSIDERATION, THIS COURT SHOULD EXAMINE THE DISCOVERY SOUGHT BY PLAINTIFFS AND THE DOCUMENTS NOW IN PLAINTIFFS’ POSSESSION On June 5, 2020, Defendant Windsor Chico Care Center (hereinafter “Windsor Chico”) served its response to Plaintiff's Request for Production of Documents, Set Four. Request for Production of Documents, Set Four, Number 88 sought the following: “All DOCUMENTS and ESI which reflect staffing levels at the FACILITY during the period March 1, 2016 to August 31, 2016, inclusive. This request includes, but is not limited to, DOCUMENTS regarding planned, budgeted, and/or projected staffing patterns for nursing personnel at the FACILITY.” 10 Defendant provided the following response to the request: 11 “Objection —this request is overbroad as to scope. Objection —this request is vague 12 and ambiguous as to the term “staffing levels” despite the fact that the propounding party provides an example of documents reflecting/consisting of 13 staffing levels. 14 Subject to and without waiving the foregoing objections, Defendant responds as follows: after a diligent search and reasonable inquiry, Defendant will comply 15 with this request in part and produce some, but not all, of the requested documents 16 as some of the documents are no longer in Defendant’s possession, custody, or control. Defendant will produce documents responsive as Exhibits “7” and “8” 17 attached hereto. 18 Discovery and investigation are continuing and ongoing and Defendant reserves the right to amend and/or supplement its responses.” 19 20 (See the Declaration of Ian M. Mackins (hereinafter “Mackins Decl.”) § 2, Exhibit 1.) 21 Defendant produced Certification and Survey Provider Enhanced Reporting (CASPER) 22 reports generated by the Centers for Medicare and Medicaid Services (“CMS”) for the months July 23 2016 and August 2016. (Id., Exhibit 7 to Exhibit 1.) The CASPER reports are generated by CMS 24 in response to a skilled nursing facility’s (like Windsor Chico Care Center) submission of Payroll 25 Based Journal, which is a system developed by CMS for skilled nursing facility’s to submit 26 staffing data regarding the facility. The reports reveal that for the month of July 2016, Windsor 27 Chico had six (6) registered nurses employed for the month, and the total hours worked by those 28 LEWIS 4811-8554-6687.1 BRISBOIS BISGAARD DEFENDANTS’ REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ NOTICE OF MOTION AND & SMITH LP MOTION FOR RECONSIDERATION ATORNES AT LAW nurses collectively amounted to 748.25 hours. (Id.) Since Windsor Chico is a facility licensed for 60 to 99 beds, per California Code of Regulations section 72329, the facility must have at least one registered nurse or licensed vocational nurse, awake on duty, in the facility at all times, day and night, in addition to the director of nursing services, and the director of nursing services must not have charge nurse responsibilities. (See Cal. Code of Regs. (“C.C.R.”) § 72329.) Thus, based on this staffing requirement, Windsor Chico was required to have 248 hours worked by registered nurses for the month of July 2016. Since it had 748.25 hours, Windsor Chico had over three times the required staffing for registered nurses for the month of July 2016. For August 2016, the report shows that Windsor Chico had six (6) registered nurses employed for the month, for a total of 10 743.72 hours worked. (Id.) The facility was required to have 248 hours worked by registered 11 nurses for the month. Thus, the facility again had nearly three times the required staffing for 12 registered nurses for the month of August 2016. 13 Defendant Windsor Chico also submitted its census data, which includes nursing hours per 14 patient day (‘NHPPD”) to Plaintiff during discovery. (See Mackins Decl. § 3.) This staffing data 15 was mandated by California Health and Safety Code section 1276.5, and required that skilled 16 nursing facility’s have 3.2 NHPPD. (Id.) This data, which is contained in CMS 612 forms, was 17 reported by Windsor Chico to CMS and consistently showed above the 3.2 NHPPD requirements 18 for the time period of April 2016 to August 2016. (Id.) The truth is that Windsor Chico had 19 exceptional staffing numbers from April 2016 to August 2016, which is the time period of staffing 20 data sought by Plaintiffs. (Id.) This is further supported by the Five Star rating that CMS has 21 awarded Windsor Chico year after year, including the year 2016. (Id.) 22 Based on the foregoing, the discovery already submitted to Plaintiffs should be sufficient 23 to show that there was no understaffing at Windsor Chico. The importance of the discovery still 24 sought by Plaintiffs is minimal given that they already possess sufficient staffing data. Thus, the 25 new and different facts and circumstances that serve as the basis of Defendants’ Motion not only 26 include the devastating effect of the COVID-19 pandemic that has restricted access of non- 27 essential persons to skilled nursing facilities, and has placed significant burdens on skilled nursing 28 facility staff, it is also furthered by Defendants production of additional staffing data that LEWIS 4811-8554-6687.1 BRISBOIS BISGAARD DEFENDANTS’ REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ NOTICE OF MOTION AND & SMITH LP MOTION FOR RECONSIDERATION ATORNES AT LAW conclusively shows that Windsor Chico was beyond sufficiently staffed to meet the requirements of applicable regulations and the needs of its residents. II. PLAINTIFFS’ CONTENTION THAT THE COVID-19 IS OF LITTLE IMPACT TO THE PRODUCTIONS AT ISSUE IS TROUBLING Plaintiffs admit the broader impact of COVID-19, however, Plaintiffs somehow fail to admit that COVID-19 has had devastating effects on the Califomia skilled nursing facility community. The impact of the COVID-19 pandemic was set forth in Defendants’ Motion, which establishes new and different facts and circumstances that further establish the burdensomeness of Plaintiffs’ requests. However, since filing the Motion on March 23, 2020, the impact has become even more severe as the COVID-19 pandemic, which translates to additional and significant 10 burdens and concerns as to the production of documents in response to Plaintiffs’ requests. The 11 impact on Califomia skilled nursing facilities has been even greater than the impact on the general 12 population. 13 The Centers of Disease Control and Prevention (CDC) has reported that older adults and 14 people who have severe underlying medical conditions like heart or lung disease or diabetes seem 15 to be at higher risk for developing more serious complications from COVID-19 illness. (See 16 Mackins Decl. § 4, Exhibit 2, (How COVID-19 Spreads, Centers of Disease Control and 17 Prevention, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid- 18 spreads.html, (last visited June 9, 2020).) Furthermore, and as of the date of this Motion, 19 according to the CDC the United States has over 1,956,421 confirmed and reported cases of 20 Coronavirus and over 110,925 deaths from Coronavirus. (See Mackins Decl. § 5, Exhibit 3 (Cases 21 in U.S., Centers of Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019- 22 ncov/cases-updates/cases-in-us.html, (last visited June 9, 2020).) Moreover, the California 23 Department of Public Health (DPH) has confirmed that as of June 8, 2020, the total number of 24 Coronavirus cases was 133,489, and 4,697 deaths. (See Mackins Decl. § 6, Exhibit 4 (COVID-19 25 by the Numbers, California Department of Public Health, 26 https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/Immunization/ncov2019.aspx, (last visited 27 June 9, 2020).) As previously set forth in Defendants’ Motion, as of March 21, 2020, the Butte 28 LEWIS 4811-8554-6687.1 BRISBOIS BISGAARD DEFENDANTS’ REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ NOTICE OF MOTION AND & SMITH LP MOTION FOR RECONSIDERATION ATORNES AT LAW County Department of Public Health (“BCPHD”) reported that Butte County had two (2) positive tests for COVID-19. Now, Butte County has had 71 confirmed total cases and 1 reported death. Despite the still significant threat of COVID-19 in Butte County, Plaintiffs cannot escape the reality that there is still a government mandatory directive in place limiting all visitor’s and non-essential health care staff at healthcare facilities such as Windsor Chico. Specifically, the CDC has announced that all facilities should adhere to current CDC infection prevention and control recommendations, including universal source control measures; visitor restrictions; screening of residents and healthcare providers; and promptly notifying the health department about residents or healthcare providers with suspected or confirmed COVID-19, 10 residents with severe respiratory infection resulting in hospitalization or death, or less than 3 11 residents or healthcare providers with new-onset respiratory symptoms within 72 hours of each 12 other. (See Mackins Decl. § 7, Exhibit 5 (Cases in U.S., Centers of Disease Control and 13 Prevention, https://www.cdc.gov/coronavirus/2019-ncov/hcp/nursing-homes-responding.html, 14 (last visited June 9, 2020.) Compliance with these procedures has surely placed significant and 15 additional burdens on Windsor Chico staff. 16 The burden on skilled nursing facilities like Windsor Chico is further aggravated by the 17 fact that not only non-essential health care staff are still not allowed in the facility, but also reports 18 from experts that the lift of the Governor’s Stay At Home Order and the reopening of businesses 19 has shown spikes in reported cases. For example, the BCPHD website, which is updated Monday 20 through Friday by 4 p.m., provides the following: 21 “Butte County COVID-19 case reporting will align with how the Califomia Department of Public Health is reporting cases. Now that community spread has 22 increased throughout the United States and is now the primary reason for new cases, including California, breaking down the case count into separate categories 23 is no longer recommended. The number of reported cases are only the confirmed 24 cases that are reported to Public Health from labs and healthcare providers. Access to testing is limited. Because of this, we believe there are many more 25 people infected with COVID-19 in Butte County than we know of.” 26 (See Mackins Decl. § 8, Exhibit 6, (COVID-19 Updates, http://www.buttecounty.net/publichealth/Home/fbclid/IwA R3f£SGcPIbTuP90MA LlinPe68ft2E_vsc 27 Qm2hD1GwwyilvdX og7KZwy 9vTw, (last visited June 9, 2020.) 28 LEWIS 4811-8554-6687.1 BRISBOIS BISGAARD DEFENDANTS’ REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ NOTICE OF MOTION AND & SMITH LP MOTION FOR RECONSIDERATION ATORNES AT LAW Thus, as the BCPHD is following the lead of the California DPH, and since there is still a government mandatory directive in place limiting all visitor’s and non-essential health care staff at healthcare facilities such as Windsor Chico, and given the significant burdens in place for compliance with these procedures, Windsor Chico must still dedicate its essential resources to the care and treatment of its residents, which includes protection against COVID-19, and not gathering, redacting, and producing documents to comply with the Order. Til. PLAINTIFFS’ ASSERTION THAT ANY IMPACT OF THE COVID-19 SHOULD BE REMEDIED WITH A CONTINUANCE OF THE PRODUCTION, NOT AN EXTINGUISHING OF PLAINTIFFS’ RIGHTS, IS BASED ON CONJECTURE Although the Court has made its ruling as to the production of the facility Windsor Chico’s 10 activities of daily living sheets for all residents and the RUG scores for all the residents (which are 11 both for the time period of April 17, 2016 to August 21, 2016), the burdensomeness of the 12 requests has not been resolved, and is certainly even more frustrated by the COVID-19 pandemic. 13 This was the exact basis for Defendants’ Motion as the measures put in place to counteract the 14 COVID-19 qualify as new and different facts and circumstances. It simply cannot be ignored that 15 the facility is tasked with making the decision between complying with the request over the 16 Court’s ruling or saving the lives of its many elderly, infirm, and disease-vulnerable residents. 17 Defendants are simply requesting that this Court reconsider its ruling given the COVID-19 18 pandemic by performing the same balancing test that it did just before it issued its ruling on the 19 subject. 20 In fact, Califomia Code of Civil Procedure section 2019.030 states: 21 “The court shall restrict the frequency or extent of use of a discovery method 22 provided in Section 2019.010 if it determines either of the following: 23 (1) The discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or 24 less expensive.” 25 (C.C.P.§ 2019.030; see also, C.C.P. .§ 2019.010 which sets forth that inspections of 26 documents, things, and places are obtainable through discovery.) 27 Furthermore, per Califomia Code of Civil Procedure section 190.30 provides: 28 “The court is required to limit the scope of discovery if it determines that the LEWIS 4811-8554-6687.1 BRISBOIS BISGAARD DEFENDANTS’ REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ NOTICE OF MOTION AND & SMITH LP MOTION FOR RECONSIDERATION ATORNES AT LAW burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” (C.C.P. § 190.30; see also, C.C.P. § 2017.020(a); see also, Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal. App. 4th 216, 223.) In Calcor Space Facilityv. Superior Court, the petitioner sought mandamus relief from an order of the superior court, which compelled petitioner to produce documents in an action between petitioner’s competitor and a corporation that had contracted with each other to provide gun mounts according to contractual specifications. (Id. at 216.) The documents sought to be produced were the subject of a subpoena served by the plaintiff pursuant to California Code of Civil 10 Procedure section 2020(d). (Id. at 219.) The subpoena included a 12-page demand which the 11 Court of Appeal stated could be condensed to a single sentence—and that is to “[p]roduce 12 everything in your possession which in any way relates to gun mounts”. (Id. at 222.) In response, 13 the petitioner filed a motion for protective order contending that the subpoena was unreasonably 14 burdensome and overly broad for service on a nonparty, sought confidential and proprietary 15 information and was not limited to materials relevant to the subject matter of the suit between the 16 competitor and corporation. (Id. at 220.) In reviewing the petition, the Court of Appeal stated that 17 the petitioner 3G Ss contentions that the requirement it produce the materials is unduly burdensome 18 and that the bulk of the materials requested lack relevancy (even under the expansive discovery 19 test) are well taken”. (Id. at 221.) The Court of appeal also considered the importance of the 20 discovery sought and the burden of the responding party. (Id. at 222.) The Court of Appeal also 21 asserted that “[a]lthough appellate courts have frequently stated [‘]fishing expeditions[‘] are 22 permissible in discovery, there is a limit.” (See Id. at 224, citing Gonzalez v. Superior Court 23 (1995) 33 Cal. App. 4% 1539.)] The Court even referenced the seminal case in California civil 24 discovery, Greyhound. (Id. at 225.) It stated that had the Greyhound court been able to anticipate 25 the tremendous burdens promiscuous discovery has placed on litigants, it might well have taken a 26 stronger stand against fishing expeditions when it stated that the then new discovery system would 27 be simple, convenient, inexpensive, and would expedite litigation. (Id, citing Greyhound Corp. v. 28 Superior Court (1961) 56 Cal. 2d 355, 384-385.) The Court of Appeal stated that Greyhound’s LEWIS 4811-8554-6687.1 BRISBOIS BISGAARD DEFENDANTS’ REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ NOTICE OF MOTION AND & SMITH LP MOTION FOR RECONSIDERATION ATORNES AT LAW optimism has certainly proven off the mark. (Id.) The foregoing authority shows that a mere continuance is not the proper mechanism to resolve the dispute. Instead, the Code empowers this Court to limit the scope of discovery in consideration that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. As previously set forth in the declaration of Windsor Chico’s facility administrator, John Crowley, which was submitted in support of Defendants’ Opposition to Plaintiffs’ Motion to Compel Further Responses to Plaintiff's Request for Production of Documents, Sets One and Two, numbers 56 and 66, the production of certified nursing assistant (CNA)/activities of daily living 10 (ADL) tracking sheets for all residents and the RUG scores for all the residents for the time period 11 of April 17, 2016 to August 21, 2016 would be extremely burdensome to the facility. (See 12 Mackins Decl. § 9, Exhibit 7, the Declaration of John Crowley (hereinafter “Crowley Decl.”) i 3- 13 12 in support of Defendants’ Opposition to Plaintiffs’ Motion to Compel Further Responses to 14 Request for Production of Documents, Sets One and Two.) Specifically, Mr. Crowley declared 15 that significant time and expense would be incurred because in order to comply with Plaintiff's 16 request since Windsor Chico staff would need to print approximately 12,100 pages of documents 17 which all require review and redaction. (Id. at § 10.) Moreover, this estimation was based on the 18 previous relevant CNA/ADL tracking sheets for Decedent Helen Rice, which totaled 132 pages in 19 length. (Id. at 9.) It should be noted that the declaration of Mr. Crowley was made prior to the 20 COVID-19 pandemic, and thus, now there would be an even greater burdens in producing the 21 ordered documents. Furthermore, the task would also require the redaction of private/confidential 22 information, including Health Insurance Portability and Accountability Act (HIPAA) protected 23 information of each resident. (Id. at § 9.) Given that Windsor Chico had close to 76 residents at its 24 facility around the time of production, and the fact that some residents were discharged from the 25 facility and some were admitted/readmitted to the facility over the nearly five month period the 26 order requires for production of documents, the number of residents would certainly increase. 27 Moreover, the production of the documents is not as easy as Plaintiffs’ counsel has claimed, and 28 even though the information is stored electronically, the information would have to be gathered for LEWIS 4811-8554-6687.1 BRISBOIS BISGAARD DEFENDANTS’ REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ NOTICE OF MOTION AND & SMITH LP MOTION FOR RECONSIDERATION ATORNES AT LAW each individual resident residing at that facility for the ordered time period. Then, the information subject to privilege would need to be redacted manually since. Last, the facility’s server may be compromised from the scanning and sending of such a large amount of documents, or the documents would need to be printed and shipped to Defendants’ counsel’s office. Similarly, as to the RUG scores, the same burdensomeness was set forth in Mr. Crowley’s declaration. (Id. at 111 & 12.) For example, Mr. Crowley declared that significant time and expense would be incurred because in order to comply with Plaintiff's request as Windsor Chico staff would need to make necessary redactions of all confidential information for every resident for a one year period. (Id. at 12.) And even though this time period has since changed by the 10 Court’s ruling limiting the time period to April 17, 2016 to August 21, 2016, the task is still 11 burdensome and would cause significant resources to be diverted to performing such tasks. Thus, 12 the burdensomeness of the request is still apparent. 13 The likelihood that the CNA/ADL tracking sheets for each resident of the facility and the 14 RUG scores for each resident of the facility will lead to the discovery of admissible evidence is 15 severely outweighed by the burden to Defendant Windsor Chico. First, how could statistics 16 regarding the care and treatment of other residents of Windsor Chico possibly be relevant to the 17 determination of the core issue in this case, which is the care and treatment provided to Helen Rice 18 (“Decedent”)? In theory, Windsor Chico staff could have performed excellent care and treatment 19 to all of its residents, excluding Decedent. The opposite can also be true. Windsor Chico staff 20 could have performed excellent care and treatment to Decedent, excluding all other residents. 21 Furthermore, this Court should not be convinced by the anticipated arguments by Plaintiffs in 22 response to this logical assertion. Surely, Plaintiffs will plead to this Court that they must 23 establish a pattern of withholding of care and treatment. However, this pattern of withholding of 24 care and treatment is only relevant as it pertains to Decedent. The knowledge of any understaffing 25 by the facility is only relevant if Plaintiffs can show a pattern of withholding of care and treatment 26 to Decedent, which has not been shown based on the documents which were provided as it 27 pertains to Decedent. This tactic of trying to put the cart before the horse should not be 28 appreciated by this Court. Neither has the claim of understaffing been shown despite Defendants’ LEWIS 4811-8554-6687.1 BRISBOIS BISGAARD DEFENDANTS’ REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ NOTICE OF MOTION AND & SMITH LP MOTION FOR RECONSIDERATION ATORNES AT LAW production of the Califommia DPH mandated CMS 612 forms that show nursing hours per patient day in an effort to comply with Health and Safety Code section 1276.5. Plaintiffs cannot show this, so they seek to fish for any information they can regarding the facility’s staffing. Based on the foregoing, it is apparent that the importance of the information requested by Plaintiffs is clearly outweighed by the burdensomeness of the requests. Even given the foregoing, Plaintiffs cannot escape the reality that the government’s mandatory directive limiting all visitor’s and non-essential health care staff at healthcare facilities such as Windsor Chico, along with the devastation of the COVID-19 pandemic and possibility of “second wave” or spike in COVID-19 cases, leave much uncertainty as to when the required 10 tasks needed to comply with Plaintiff's requests can be performed. (See Exhibit “7” to 11 Defendants’ Motion.) Certainly, these circumstances should cause concer of the Court. Thus, 12 the argument by Plaintiffs that the impact of the COVID-19 should be remedied by a continuance 13 is based on pure conjecture. 14 Iv. CONCLUSION 15 Based on the foregoing arguments and authority, Defendants respectfully request that this 16 Court grant Defendants’ Motion for Reconsideration of their Opposition to Plaintiffs’ Motion to 17 Compel Further Responses to Request for Production of Documents, Sets One and Two, Numbers 18 56 and 66. Upon reconsideration, Defendants believe that Plaintiffs’ Motion to Compel should be 19 denied as Defendants have clearly established new and different facts and circumstances not 20 before the Court at the time of its ruling on same. Namely, the continuing and devastating effects 21 of COVID-19 present new facts and circumstances that even further frustrate and/or exacerbate 22 the already unduly burdensomeness in complying with the Court’s order regarding same. 23 III 24 III 25 III 26 III 27 III LEWIS 28 III BRISBOIS 4811-8554-6687.1 BISGAARD DEFENDANTS’ REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ NOTICE OF MOTION AND & SMITH LP MOTION FOR RECONSIDERATION TORNEWS AT LAW 1|/ DATED: June 10, 2020 LEWIS BRISBOIS BISGAARD & SMITH LLP 2 3 wy. 2MO RIMA M. BADAWIYA 4 JENNIFER G. SO 5 IAN M. MACKINS Attomeys for Defendants, WINDSOR CHICO CARE CENTER, LLC; LEE SAMSON; LAWRENCE FEIGEN; DONNY FELDMAN; and CHICO TERRACE HEALTHCARE & WELLNESS CENTRE, LP 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LEWIS 4811-8554-6687.1 BRISBOIS BISGAARD DEFENDANTS’ REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ NOTICE OF MOTION AND & SMITH LP MOTION FOR RECONSIDERATION ATORNES AT LAW DECLARATION OF IAN M. MACKINS I, Ian M. Mackins, declare as follows: 1 I am an attorney duly admitted to practice in all of the courts of the State of California and I am an associate with Lewis Brisbois Bisgaard & Smith LLP, attomeys of record for Defendants, WINDSOR CHICO CARE CENTER, LLC; LEE SAMSON; LAWRENCE FEIGEN; DONNY FELDMAN; and CHICO TERRACE HEALTHCARE & WELLNESS CENTRE, LP (collectively referred to as “Defendants”), herein. The facts set forth herein are of my own personal knowledge, and if sworn I could and would competently testify thereto. 2 Defendant Windsor Chico Care Center served its response to Plaintiffs Request for 10 Production of Documents, Set Four. Attached herewith and marked as Exhibit “1” is a true and 11 correct copy of Defendant Windsor Chico Care Center’s responses to Plaintiff's Request for 12 Production of Documents, Set Four, including Exhibit 7 in response to Request for Production of 13 Documents Number 88. 14 3 Defendant Windsor Chico also submitted its census data, which includes nursing 15 hours per patient day (“NHPPD”) to Plaintiff during discovery. This staffing data was mandated 16 by California Health and Safety Code section 1276.5, and required that skilled nursing facility’s 17 have 3.2 NHPPD. This data, which is contained in CMS 612 forms, was reported by Windsor 18 Chico to CMS and consistently showed above the 3.2 NHPPD requirement for the time period of 19 April 2016 to August 2016. The truth is that Windsor Chico had exceptional staffing numbers 20 from April 2016 to August 2016, which is the time period of staffing data sought by Plaintiffs. 21 4 Attached herewith and marked as Exhibit “2” is a true and correct copy of How 22 COVID-19 Spreads, Centers of Disease Control and Prevention, 23 https://www.cdc.gov/coronavirus/2019-ncov/prevent- getting-sick/how-covid-spreads.html, (last 24 visited June 9, 2020. 25 5. As of the date of this Motion, according to the CDC the United States has over 26 1,956,421 confirmed and reported cases of Coronavirus and over 110,925 deaths from 27 Coronavirus. A ttached herewith and marked as Exhibit “3” is a true and correct copy of Cases in 28 LEWIS 4811-8554-6687.1 BRISBOIS BISGAARD DEFENDANTS’ REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ NOTICE OF MOTION AND & SMITH LP MOTION FOR RECONSIDERATION ATORNES AT LAW U.S., Centers of Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019- ncov/cases-updates/cases-in-us.html, (last visited June 9, 2020.) 6 Attached herewith and marked as Exhibit “4” is a true and correct copy of COVID-19 by the Numbers, California Department of Public Health, https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/Immunization/ncov2019.aspx, (last visited June 9, 2020). 7 Attached herewith and marked as Exhibit “5” is a true and correct copy of Cases in U.S., Centers of Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019- ncov/hcp/nursing-homes-responding.html, (last visited June 9, 2020.) 10 8 Attached herewith and marked as Exhibit “6” is a true and correct copy of 11 COVID-19 Updates, 12 http://www. buttecounty.net/publichealth/Home/fbclid/IwA R3fSGcPIbTuP90MA LIinPe68ft2E vs 13 cQm2hD1GwwyilvdX og7KZwY 9vTw, (last visited June 9, 2020. 14 9 Attached herewith and marked as Exhibit “7” is a true and correct copy of, the 15 Declaration of John Crowley in support of Defendants’ Opposition to Plaintiffs’ Motion to 16 Compel Further Responses to Request for Production of Documents, Sets One and Two, Numbers 17 66. 18 19 I declare under penalty of perjury under the laws of the State of California that the 20 foregoing is true and correct and that this declaration was executed on June 10, 2020, at San 21 Bemardino, California. 22 23 [s/ IAN M. MACKINS Tan M. Mackins 24 25 26 27 28 LEWIS 4811-8554-6687.1 BRISBOIS BISGAARD DEFENDANTS’ REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ NOTICE OF MOTION AND & SMITH LP MOTION FOR RECONSIDERATION ATORNES AT LAW EXHIBIT 1 LEWIS BRISBOIS BISGAARD & SMITH LLP RIMA M. BADAWIYA, SB#204174 E-Mail: Rima.Badawiya@ lewisbrisbois.com JENNIFER G. SO, SB#243158 E-Mail: Jennifer.So@ lewisbrisbois.com IAN M. MACKINS, SB#315216 E-Mail: Ian.Mackins@ lewisbrisbois.com 650 East Hospitality Lane, Suite 600 San Bernardino, Califomia 92408 Telephone: 909.387.1130 Facsimile: 909.387.1138 Attorneys for Defendants, WINDSOR CHICO CARE ENTER, LLC; LEE SAMSON; LAWRENCE FEIGEN; DONNY FELDMAN; and CHICO TERRACE HEALTHCARE & WELLNESS CENTRE, LP 10 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF BUTTE 13 14 HELEN RICE, by and through her successor CASE NO. 17CV01914 15 in interest, ARLENE PHALEN BEIMER, [Assigned for All Purposes to: THOMAS PHALEN and ARLENE PHALEN The Hon. Tamara L. Mosbarger, Dept. 1] 16 BEIMER individually, DEFENDANT WINDSOR CHICO CARE 17 Plaintiffs, CENTER, LLC’S RESPONSES TO PLAINTIFF’S REQUEST FOR 18 vs. PRODUCTION OF DOCUMENTS, SET FOUR 19 WINDSOR CHICO CARE CENTER, LLC; LEE SAMSON; LAWRENCE FEIGEN; 20 DONNY FELDMAN; CHICO TERRACE Action Filed: 10/13/17 HEALTHCARE & WELLNESS CENTRE, Trial Date: 02/08/21 04/20/20 03/2549 21 LP and DOES 1 through 50, inclusive, 22 Defendants. 23 PROPOUNDING PARTY: Plaintiff, THOMAS PHALEN 24 RESPONDING PARTY: Defendant, WINDSOR CHICO CARE CENTER, LLC 25 SET NO.: FOUR (4) 26 Pursuant to Califomia Code of Civil Procedure section 2031.210 et seq., Defendant 27 WINDSOR CHICO CARE CENTER, LLC (“Defendant”) hereby provides the following 28 LEWIS 4818-1322-0287.1 BRISBOIS BISGAARD DEFENDANT WINDSOR CHICO CARE CENTER, LLC’S RESPONSES & SMITH LLP TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS, SET FOUR ATIORNEYS AT LAW responses to Plaintiff THOMAS PHALEN’s (hereinafter “Plaintiff’) Request for Production of Documents, Set Four. PRELIMINARY STATEMENT It should be noted that Defendant has not completed its investigation of the facts relating to these cases, has not fully completed its discovery in these actions, and has not completed its preparation for trial. All Respondents of the answers contained herein are based only upon such information and documents which are presently available and specifically known to Defendant and disclose only those contentions which presently occur to Defendant. It is anticipated that further discovery, independent investigation, legal research, and analysis will supply additional facts, add 10 meaning to the known facts, as well as establish entirely new factual conclusions and legal 11 contentions, all of which may lead to substantial additions to, changes in and variations from the 12 contentions and responses set forth herein. 13 The following responses are given without prejudice to Defendant’s right to produce 14 evidence of any subsequently discovered fact or facts which Defendant may later recall. 15 Defendant accordingly reserves the right to change any and all answers herein as additional facts 16 are ascertained, analyses are made, legal research is completed, and contentions are made. The 17 answers contained herein are made in a good faith effort to supply as much factual information as 18 specifically as is presently known, but should in no way be to the prejudice of Defendant in 19 relation to discovery, research, or analysis. 20 GENERAL OBJECTIONS AND RESERVATIONS 21 As to each and every Request in Plaintiff's Request for Production of Documents, 22 Set Four, Defendant states the following: 23 A Defendant has not yet completed its discovery and investigation of the facts giving 24 rise to this action, but has made a diligent, good faith effort to obtain all information responsive to 25 these Requests within Defendant’s possession, custody, or control. Accordingly, these responses 26 are made without prejudice to Defendant’s right to introduce prior to or at the time of trial or 27 otherwise use any additional information it may obtain as a result of Defendant’s continuing 28 discovery and investigation, but Defendant assumes no obligation, beyond that imposed by LEWIS 4818-1322-0287.1 BRISBOIS BISGAARD DEFENDANT WINDSOR CHICO CARE CENTER, LLC’S RESPONSES & SMITH LP TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS, SET FOUR TORNEWS AT LAW California Code of Civil Procedure § 2030.210 et seq. to supplement and amend thes