Opposition

Cal. Super. - 4th Dist.May 29, 2015

10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ARNOLDO CASILLAS, ESQ., SBN 158519 DENISSE O. GASTELUM, ESQ., SBN 282771 CASILLAS & ASSOCIATES 3500 W. Beverly Blvd. Montebello, CA 90640 Telephone: (323) 725-0917 Facsimile: (323) 725-0350 Attorneys for Plaintiff, EDGAR VELASQUEZ, an incompetent adult, by and through his Guardian Ad Litem, FRANCISCO VELASQUEZ ELECTRONICALLY FILED Superior Court of California, County of Orange 03/29/2016 at 04:07:00 Pi Clerk of the Superior Court By & Clerk, Deputy Clerk SUPERIOR COURT OF HE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE EDGAR VELASQUEZ, an incompetent ) adult, by and through his co- : conservators, MARISOL VELASQUEZ and) FRANCISCO VELASQUEZ, Plaintiff, VS. ANAHEIM ADULT DAY CARE CENTER, EVA ARVISO, CHRISTIAN CARREON, MARCOS SORIA, AMANDA CARRILLO, MELANIE SANCHEZ, VERONICA CASTELLANOS, DOES 1 through 25, inclusive, Defendants. N r ’ N r N e N e N e N e N e N e N e N e N e N e N e N e N e N e N a Case Number: CV09-893 VBF (FFMXx) PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL COMPLIANCE TO DEPOSITION SUBPOENA FOR RECORDS ISSUED TO REGIONAL CENTER OF ORANGE COUNTY AND REQUEST FOR SANCTIONS Date: April 12, 2016 Time: 1:30 p.m. Dept.: C19 Reservation No.: 72325831 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD HEREIN: COMES NOW Plaintiff Edgar Velasquez, an incompetent adult, by and through his Guardian Ad Litem, Francisco Velasquez (hereinafter “Plaintiff””) and files the instant Opposition to Defendants Anaheim Adult Day Care Center, Eva Arviso, Christian Carreon, Marcos Soria, i OPPOSITION TO MOTION TO COMPEL COMPLIANCE TO DEPOSITION SUBPOENA FOR RECORDS ISSUED TO REGIONAL CENTER 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Amanda Carrillo, and Melanie Sanchez’s (hereinafter “Defendants”) Motion to Compel Compliance to Deposition Subpoena for Records Issued to Regional Center of Orange County. Defendants” Motion to Compel is an absolute abuse of the discovery process and a waste of judicial economy and resources. Contrary to Defendant’s position that they are “entitled” to the entire confidential file of Edgar Velasquez, a dependent adult, these documents are confidential pursuant to California Welfare& Institutions Code § 4514. Notwithstanding, on March 3, 2016, Plaintiffs, in good faith, served hundreds of responsive documents from the Regional Center of Orange County (hereinafter also “Regional Center”). This production contained all responsive documents that are relevant to not only the services provided to Edgar Velasquez within the five-year period prior to the September 16, 2014 incident, but also includes all responsive documents specifically related to the September 16, 2014 incident wherein Edgar Velasquez’s suffered a fractured femur while in the care and custody of Defendants. There is nothing to compel as Plaintiffs have complied with Defendants’ request. See Cal. Code Civ. Proc. § 2017.010; see also Bridgestone/ Firestone, Inc. v. Superior Court (1992) 7 Cal. App.4" 1384; Gonzalez v. Superior Court (1995) 33 Cal. App.4th 1539. This Opposition is based upon this Notice, the attached Memorandum of Points and Authorities, the complete files and records of this case, the Court’s file and records in this matter, and upon such oral argument presented at the hearing of this Motion. Dated: March 29, 2016 CASILLAS & ASSOCIATES oF By DENISSE O. GASTELUM ARNOLDO CASILLAS Attorneys for Plaintiff, EDGAR VELASQUEZ, an incompetent adult, by and through his Guardian ad Litem, FRANCISCO VELASQUEZ i1 OPPOSITION TO MOTION TO COMPEL COMPLIANCE TO DEPOSITION SUBPOENA FOR RECORDS ISSUED TO REGIONAL CENTER 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Defendants take the position that they are “entitled” to the entire confidential file of Edgar Velasquez, a dependent adult; however, as Defendants have conceded in their Motion to Compel, these documents are confidential pursuant to California Welfare & Institutions Code § 4514. See Mtn. to Compel, pg. 4, lines 27-27. And so, there lies no entitlement to these documents, but rather protections under California law. The instant Motion is brought by Defendants to harass and burden Plaintiffs.! Plaintiffs have already produced hundreds of Regional Center documents which are relevant to the subject matter and reasonably calculated to lead to discovery to admissible evidence. See Cal. Code Civ. Proc. § 2017.010; see also Bridgestone/ Firestone, Inc. v. Superior Court (1992) 7 Cal. App.4th 1384; Gonzalez v. Superior Court (1995) 33 Cal. App.4th 1539. More specifically, on March 3, 2016, Plaintiffs produced 249 documents-this production contains all responsive documents that are relevant to not only the services provided to Edgar Velasquez within the five-year period prior to the September 16, 2014 incident, but also includes all responsive documents specifically related to the September 16, 2014 incident wherein Edgar Velasquez’s suffered a fractured femur while in the care and custody of Defendants. See Declaration of Gastélum, Ex. “1.” This production was served within two days of receipt of the documents from the Reginal Center. Id. at Ex. “2.” This is contrary to Defendants’ misguided representation to the Court that it can “only be presumed that once Plaintiff’s counsel obtained the records themselves, they determined that they were not favorable to their case” and promptly revoked the authorization. See Mtn. to Compel, pg. 5, fn. 1. Defendants also appear to take the position that Plaintiffs are withholding documents because documents pertaining to the Regional Center’s “finding” that Edgar Velasquez’s injuries were not the ! Notably, Defendants wrongfully attempted to obtain these documents by using an authorization signed by our clients prior to the incident. Regional Center informed Plaintiffs of this improper discovery practice. = OPPOSITION TO MOTION TO COMPEL COMPLIANCE TO DEPOSITION SUBPOENA FOR RECORDS ISSUED TO REGIONAL CENTER; DECL OF GASTELUM 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 result of “physical abuse” were not included in the production served on March 3, 2016. See Decl. of Gastélum, Ex. “3.” Nevertheless, this document was indeed produced along with the other Regional Center production. Plaintiffs informed Defendants of this very fact and even referenced the bates number pertaining to the document in question. See Declaration of Gastélum, Ex. “4.” Still, Defendants refused to take the instant Motion off calendar. Id. at Ex. “5.” As will be shown, the discovery at issue in this Motion is burdensome, harassing, and well beyond the scope of the discovery rules. Plaintiff respectfully requests that this Court deny Defendants’ Motion to Compel and grant Plaintiff’s request for sanctions. IL. ARGUMENT A. THE DOCUMENTS SOUGHT BY DEFENDANTS ARE CONFIDENTIAL. The documents contained in the file of Edgar Velasquez are deemed confidential information pursuant to the Lanterman Developmental Disabilities Services Act as codified under California Welfare & Institutions Code § 4400, ef seq., as well as California Welfare & Institutions Code §§ 4514, 4515 and 4518. Defendants too concede the sensitive and confidential nature of these documents. See Mtn. to Compel, pg. 4, lines 27-27. The Regional Center’s steadfast objection to Defendants’ request further evidences just how sensitive these documents are. See Declaration of Gastélum, Ex. “6.” B. PLAINTIFFS HAVE, IN GOOD FAITH PRODUCED RESPONSIVE REGIONAL CENTER DOCUMENTS, AND THUS HAVE COMPLIED WITH THE DISCOVERY ACT. The standard for determining the scope of discovery is set forth in the statute: “Unless otherwise limited by order of the court in accordance with this article, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence...” (Emphasis added.) Cal. Code. Civ. Proc. § 2017(a). For discovery purposes, information is relevant if it “might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement.” (Emphasis added.) See Lipton v. Shr OPPOSITION TO MOTION TO COMPEL COMPLIANCE TO DEPOSITION SUBPOENA FOR RECORDS ISSUED TO REGIONAL CENTER; DECL OF GASTELUM 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Superior Court (1996) 48 Cal. App.4th 1599. Unless privileged, information is discoverable if it might reasonably lead to admissible evidence. See Davies v. Superior Court (1984) 36 Cal.3d 291, 301. The phrase “reasonably calculated to lead to the discovery of admissible evidence” makes it clear that the scope of discovery extends to any information that reasonably might lead to other evidence that would be admissible at trial. In short, discovery is proper where it inquires into circumstances and facts out of which a cause of action arises (see Pacific Tel. & Tel. v. Superior Court (1970) 2 Cal.3d 161, 172; see also Darbee v. Superior Court (1962), 208 Cal. App.2d 680, 688); where it will promote settlement (see Pettie v. Superior Court (1960) 178 Cal.App.2d 680, 688); and where it will assist trial preparation (see Davies v. Superior Court (1984), 36 Cal.3d 291, 301). A party’s entitlement to permissible discovery is thus limited to discovery that “relate to the claim or defense of the party seeking discovery. See Cal. Code. Civ. Proc. § 2017.010. The instant motion is moot as Plaintiffs have complied with Defendants’ request and have served responsive documents in adherence with the Discovery Act. On March 3, 2016, Plaintiffs, in good faith, served hundreds of Regional Center documents. See Declaration of Gastélum, Ex. “1.” This production contains all responsive documents that are relevant to not only the services provided to Edgar Velasquez within the five-year period prior to the September 16, 2014 incident, but also includes all responsive documents specifically related to the September 16, 2014 incident wherein Edgar Velasquez’s suffered a fractured femur while in the care and custody of Defendants. As has been indicated to Defendants, a privilege log is not necessary under the circumstances as the documents themselves are deemed confidential information pursuant to the Lanterman Developmental Disabilities Services Act as codified under California Welfare & Institutions Code § 4400, et seq., as well as California Welfare & Institutions Code §§ 4514, 4515 and 4518. See Cal. Civ. Proc. Code §§ 2031.240(c)(1), 2031.240(c)(2)(if a party objects to document production based on a claim of privilege, the “response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log”)(emphasis added); see also Best =G= OPPOSITION TO MOTION TO COMPEL COMPLIANCE TO DEPOSITION SUBPOENA FOR RECORDS ISSUED TO REGIONAL CENTER; DECL OF GASTELUM 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Products,. v. Superior Court, 119 Cal. App.4th 1181 (2004). Thus, the instant Motion is moot as Plaintiffs have complied. C. MONETARY SANCTIONS SHOULD BE AWARDED California Code Civil Procedure § 2023(a) and (b) states in pertinent: (a) “Misuse of the discovery process include, but are not limited to, the following: 2) Using a discovery method in a manner that does not comply with its specified procedures. 3) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. 5) Making, without substantial justification, an unmeritorious objection to discovery. (b)(1) The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” Recovery of monetary sanctions is permitted, unless the non-moving party’s conduct is “substantially justified” or the award would be “unjust.” Cal. Code Civ. Proc. § 2023.030(a). Here, monetary sanctions against Defendants are warranted. Among other things, Plaintiffs have time and time again reassured Defendants that all responsive Regional Center documents have been produced. See] Declaration of Gastélum, Ex. “4,” Ex. “7.” Defendants have shown a pattern of employing discovery, tactics for the mere purpose of harassing Plaintiffs. See Declaration of Gastélum, Ex. “3,” “5,” “8,” “9.” Accordingly, this Court should sanction Defendants in the amount of $2,750.00 in attorneys’ fees and costs for Plaintiff’s reasonable fees and expenses incurred in preparing, filing and arguing this Motion. See Declaration of Gastélum, Parag. 11. IIL. CONCLUSION For the reasons stated herein, Plaintiff respectfully requests that this Court deny Defendants’ Motion to Compel in its entirety and to grant Plaintiff's Request for Sanctions. Dated: March 29, 2016 CASILLAS & ASSOCIATES oF By ) DENISSE O- GASTELUM OPPOSITION TO MOTION TO COMPEL COMPLIANCE TO DEPOSITION SUBPOENA FOR RECORDS ISSUED TO REGIONAL CENTER; DECL OF GASTELUM 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ARNOLDO CASILLAS Attorneys for Plaintiff, EDGAR VELASQUEZ, an incompetent adult, by and through his Guardian ad Litem, FRANCISCO VELASQUEZ a OPPOSITION TO MOTION TO COMPEL COMPLIANCE TO DEPOSITION SUBPOENA FOR RECORDS ISSUED TO REGIONAL CENTER; DECL OF GASTELUM 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE (CCP §§ 1013(a) and 2015.5; FRCP 5) State of California, ) ) ss. County of Los Angeles ) I am employed in the County of Los Angeles. Iam over the age of 18 and not a party to the within action. My business address is 3500 W. Beverly Blvd., Montebello, CA 90640. On this date, March 29, 2016 I served the foregoing document described as PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL COMPLIANCE TO DEPOSITION SUBPOENA FOR RECORDS ISSUED TO REGIONAL CENTER OF ORANGE COUNTY AND REQUEST FOR SANCTIONS on the interested parties in this action by placing same in a sealed envelope, addressed as follows: Eugene J. Egan, Esq. Attorneys for Defendants Michael H. Cooper, Esq. ANAHEIM ADULT DAY CARE, EVA ARISO, MANNING & KASS CHRISTIAN CARREON, MARCOS SORIA, ELROD, RAMIREZ, TRESTER LLP AMANDA CARRILLO AND MELANIE SANCHEZ 801 S. Figueroa St., 15" Floor PH: 213-624-6900 Los Angeles, CA 90017-3012 FX: 213-624-6999 eje@manningllp.com pxh@manningllp.com XI BY MAIL) - I caused such envelope(s) with postage thereon fully prepaid to be placed in the United States mail in Montebello, California to be served on the parties as indicated on the attached service list. I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Montebello, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. [1] BY CERTIFIED MAIL) I caused such envelope(s) with postage thereon fully prepaid via Certified Mail Return Receipt Requested to be placed in the United States Mail in Montebello, California. [] BY ELECTRONIC FILING AND/OR SERVICE) -I served a true copy, with all exhibits, electronically on designated recipients listed on the attached Service List (Date) at (Time) on: [1] FEDERAL EXPRESS - I caused the envelope to be delivered to an authorized courier or driver authorized to receive documents with delivery fees provided for. [] (BY FACSIMILE) - I caused the above-described document(s) to be transmitted to the offices of the interested parties at the facsimile number(s) indicated on the attached Service List and the activity report(s) generated by facsimile number (323)725-0350 indicated all pages were transmitted. XI (STATE) - I declare under penalty of perjury under the laws of the State of California that the above is true and correct. ynisae OH itil. DENISSE O. GASTELUM -8- OPPOSITION TO MOTION TO COMPEL COMPLIANCE TO DEPOSITION SUBPOENA FOR RECORDS ISSUED TO REGIONAL CENTER; DECL OF GASTELUM