Motion_to_compel_further_pmk_deposition_of_fountain_valley_MotionCal. Super. - 4th Dist.April 2, 2019G A R C I A & A R T I G L I E R E O N E W O R L D T R A D E C E N T E R , S U I T E 19 50 L O N G B E A C H , C A L I F O R N I A 80 83 1 T E L E P H O N E (5 62 ) 21 6- 52 70 + FA CS IM IL E (5 62 ) 21 6- 52 71 eo 0 NN A N E W N N O N ee e d pe d p k p k ed —- oe No 0 NN a NN E W N = 22 23 24 25 26 27 28 GARCIA & ARTIGLIERE Stephen M. Garcia, State Bar No. 123338 edocs@lawgarcia.com One World Trade Center, Suite 1950 Long Beach, California 90831 Telephone: (562) 216-5270 Facsimile: (562) 216-5271 Attorneys for Plaintiff SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER ANA MARIA ZAYAS, by and through her Personal Representative, Yvette Zayas; YVETTE ZAYAS; MILDRED ZAYAS; and VICTOR M. ZAYAS, Plaintiffs, Vs. HCR MANOR CARE SERVICES, LLC, MANOR CARE OF FOUNTAIN VALLEY CA, LLC; HEARTLAND EMPLOYMENT SERVICES, LLC; TRIET KIEU; and DOES 1 through 250, inclusive, Defendants. CASE NO. 30-2019-01061318-CU-MC-CJC ASSIGNED FOR ALL PURPOSES TO: WALTER SCHWARM DEPARTMENT C-19 PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL ACTUAL PRODUCTION OF DOCUMENTS AND THE FURTHER DEPOSITION OF THE PERSON MOST KNOWLEDGEABLE OF MANOR CARE OF FOUNTAIN VALLEY CA, LLC; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION IN SUPPORT THEREOF; REQUEST FOR MONETARY SANCTIONS AGAINST DEFENDANT MANOR CARE OF FOUNTAIN VALLEY CA, LLC AND ITS ATTORNEYS OF RECORD BUCHANAN INGERSOLL & ROONEY, LLP Reservation No. 73193108 Date: March 10, 2020 Time: 1:30 PM Dept.: C-19 Action Filed: April 2, 2019 Trial Date: Avril 3.2020 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on March 10, 2020, at 1:30 p.m. in Department C-19 of the above referenced court, located at 700 Civic Center Drive West, Santa Ana, California 92702, PLAINTIFF'S NOTICE OF MOTION AND MTC ACTUAL PRODUCTION OF DOCUMENTS AND FURTHER DEPOSITION OF THE PMK OF MANOR CARE OF FOUNTAIN VALLEY CA, LLC MA\7avac Anal 1Q.0NENPleadinoc\MT(C Further PMK Nena Fanntain Vallev (CA TTC dacy G A R C I A & A R T I G L I E R E O N E W O R L D T R A D E C E N T E R , SU IT E 19 50 L O N G B E A C H , C A L I F O R N I A 90 83 1 T E L E P H O N E (5 62 ) 21 6- 52 70 + FA CS IM IL E (5 62 ) 21 6- 52 71 eo 0 NN SA n n A W N N O N N N N N O N O N O N em em em ed md ed p d ed p d pe d W@W 0 && Un E W N E S O 0 O N ER W N m o e Plaintiff, Ana Maria Zayas, by and through her Persona Representative, Yvette Zayas, will move, and does hereby move, for an order compelling the further deposition of the Person Most Knowledgeable of Defendant Manor Care of Fountain Valley CA LLC as to Topics of Inquiry Nos. 3 and 4, and to produce documents responsive to Request for Production Nos. 17, 26, and 30, to take place within 10 days of this hearing and on a date selected by Garcia & Artigliere. Plaintiff also seeks the imposition of sanctions in the amount of $5,210.00 as against the defendant Manor Care of Fountain Valley CA, LLC. and its attorneys of record, Buchanan Ingersoll & Rooney, LLP, jointly and severally and payable to Garcia & Artigliere within ten days of the hearing on this motion. This Motion is made pursuant to Code of Civil Procedure §§2023.010, 2023.030, 2025.250, 2025.410, 2025.420, 2025.450 and 2025.480, and is based on the Defendant’s failure to produce a deponent as to Topics of Inquiry nos. 3, 4 and failure to produce documents in response to Requests for Production nos. 17, 26, and 30, as requested at their legally noticed deposition as provided in the Plaintiff's lawful notice of deposition, as well as defense counsel’s failure to collaboratively schedule the further deposition of the Person Most Knowledgeable of Manor Care of Fountain Valley CA, LLC. This Motion shall be based on this Notice of Motion and Motion, the Declaration of Matthew J. Gustin, the Memorandum of Points and Authorities and Exhibits filed herewith, concurrently filed Separate Statement and all oral and documentary evidence as may be presented at the time of the hearing. DATED: December 24, 2019 GARCIA & ARTIGLIERE By: Stephen M. Garg Attorneys for Pladtiff 2 PLAINTIFF'S NOTICE OF MOTION AND MTC ACTUAL PRODUCTION OF DOCUMENTS AND FURTHER DEPOSITION OF THE PMK OF MANOR CARE OF FOUNTAIN VALLEY CA, LLC MAZavae Ana (10-07AWPleadinodMT(C Further PMK Nena Fanntain Vallev CA TTC dary G A R C I A & A R T I G L I E R E O N E W O R L D T R A D E C E N T E R , S U I T E 19 50 L O N G B E A C H , C A L I F O R N I A 90 83 1 T E L E P H O N E (5 62 ) 21 6- 52 70 + FA CS IM IL E (5 62 ) 21 6- 52 71 eo 0 a A Nn AEA W N NN O N N N DN N N NN NB N N O e m oe m mm j m em p m j m em p m @ ~~ A Nh AEA W N =m S Y ug S N M R A W N e m MEMORANDUM OF POINTS AND AUTHORITIES L PROCEDURAL HISTORY The fact of the matter is that Plaintiff's counsel has attempted to collaboratively schedule the deposition of Defendant Facility, Manor Care of Fountain Valley CA, LLC (“Manor Care”) since April 1, 2019 or eight months ago. Please see Exhibit “1”, without enclosures. Despite multiple meet and confer letters and the fact that Plaintiffs counsel sent a draft of the notice in anticipation of Defendant’s delay to find the proper deponent(s), on July 10, 2019, following proper service of the first amended complaint, plaintiff’s counsel served the Notice of Deposition of the Person Most Knowledgeable of Manor Care of Fountain Valley. Please see Declaration of Matthew J. Gustin §7 and Exhibit “2”. Concurrently therewith, Plaintiff sent a meet and confer letter to defense counsel again requesting the collaborative scheduling of the deposition particularly in light of the fact that defense counsel had over three months to determine who would be produced and to gather the requested documents to produce at the deposition. Please see Exhibit “3”. Rather than spending the minutes to acquire alternative dates for the deposition, the defense spent likely hours preparing objections to Plaintiff's Notice of Deposition of Person Most Knowledgeable. No alternative dates were provided. Please see Exhibit “4”. On July 30, 2019, Plaintiff's counsel sent a comprehensive Meet and Confer letter addressing the lack of legal merit and factual accuracy of Defendant’s objections to Plaintiffs notice of deposition. Please see Exhibit “5”. Additionally, Plaintiffs counsel invited, once again, collaborative scheduling of the deposition and offered for Defense counsel to participate in a telephonic met and confer and offered seven (7) alternative dates for the deposition. Unfortunately, defense counsel did not respond within the time frame reasonably offered and accordingly Plaintiff filed her motion to compel on August 2, 2019. Please see Declaration of Matthew J. Gustin Y8. On November 13, 2019, defense counsel finally provided dates sought since April 1, 2019. Please see Exhibit “6”. Plaintiff's counsel responded that due to defense counsel’s conduct in this matter to date, there is no confidence that Defendant will in fact produce a fully capable deponent and all responsive documents therefore, Plaintiff’s Motion to Compel will stay on calendar. Please 1 PLAINTIFF'S NOTICE OF MOTION AND MTC ACTUAL PRODUCTION OF DOCUMENTS AND FURTHER DEPOSITION OF THE PMK OF MANOR CARE OF FOUNTAIN VALLEY CA, LLC MA\Zavac Ana (19-026WPleadinac\M TC Further PMK Denn Fanntain Valley CA TTC daey G A R C I A & A R T I G L I E R E O N E W O R L D T R A D E C E N T E R , S U I T E 19 50 L O N G B E A C H , C A L I F O R N I A 90 83 1 T E L E P H O N E (5 62 ) 21 6- 52 70 + F A C S I M I L E (5 62 ) 21 6- 52 71 eo 0 9 AN nN A W N BN N N N N N N N N e k m m e m md p m md j m p d p m GC 2 A Un A W N = D VO 0 a S N h a w N e see Exhibit “7”. Plaintiff counsel provided a summary of the meet and confer efforts and justified reasons for filing Plaintiff’s Motion to Compel. /d. Coincidentally, after the filing of Plaintiff’s Motion to Compel, the first time defense counsel finally provided dates sought since April of 2019, was the day Defendant’s opposition to the motion was due. 1d. On November 19, 2019, during the hearing on Plaintiff's Motion to Quash Defendant’s Subpoenas, the Court requested for Plaintiff's counsel to choose one of the dates defense counsel provided and the parties stipulated for the deposition to occur on December 10, 2019 and Plaintiff withdrew the Motion to Compel on calendar. Please see Declaration of Matthew J. Gustin § 9 and Exhibit “8”. On November 21, 2019, defense counsel confirmed the deposition would go forward on December 10, 2019 but did not confirm that a fully capable witness and all responsive documents would be produced. Please see Exhibit “9”. As predicted, the incomplete deposition of Defendant, Manor Care, occurred on December 10, 2019. Please see Exhibit “10”. Defendant failed to produce a fully responsive witness as to Topics of Inquiry Nos. 3 and 4, and failed to produce all documents responsive to Requests for Production Nos. 17, 26, and 30." Id. Plaintiff’s counsel requested for defense counsel to provide two alternative dates in which the deposition can be reconvened in the next 21 days such that a witness responsive to all remaining categories of inquiry and all remaining documents are produced in accordance with the notice of deposition by the close of business on Friday, December 13, 2019. Id. Defendant failed to provide alternative dates and failed to produce the remaining documents as requested. /d. Plaintiff is left with no choice but to once again seek the assistance of the Court. Plaintiff's fall and resulting hematoma to her head is alleged to have been caused by the wrongful withholding of required care to Plaintiff by the Defendants and would not have occurred but for the knowing understaffing, lack of training, failure to allot sufficient economic resources, ! In fact, Defendant failed to produce documents at this deposition as to many of the requests for production. However, in an effort to conserve judicial resources and as many of these requests overlap those which are already the subject of a different Motion to Compel regarding Plaintiff's Requests for Production, Set One, Plaintiff herein only sets forth those requests which are non- duplicative. 2 PLAINTIFF'S NOTICE OF MOTION AND MTC ACTUAL PRODUCTION OF DOCUMENTS AND FURTHER DEPOSITION OF THE PMK OF MANOR CARE OF FOUNTAIN VALLEY CA, LLC MA7avac Ana (10.076\Pleadinoc\M TC Further PMK Nenn Fanntain Valley CA TTC daev G A R C I A & A R T I G L I E R E O N E W O R L D T R A D E C E N T E R , SU IT E 19 50 L O N G B E A C H , C A L I F O R N I A 90 83 1 + F A C S I M I L E (5 62 ) 21 6- 52 71 T E L E P H O N E (5 62 ) 21 6- 52 70 oo 0 NO AN nN A W N N N N N N N N N N O N ke o m pm hm je m j m h m p m p m j e CC N A A AR W N E S O 0 N S N Es R N m e e unfitness of staff in capacity and competency, by the Defendants. Here, in their refusal to produce the requested information and a deponent to testify regarding same, the Defendant essentially ignores the clear cause of action and prima facie element of proof of the Complaint’s First and Second Causes of Action, Elder Abuse and Negligent Hiring and Supervision. It is quite obvious defense counsel knows full well the importance of the deposition sought here as to prima facie elements of the cause of action alleged and hope through obstructionism, the Plaintiff will be precluded from acquiring this very important information. Given defense counsel’s lack of diligent effort, Plaintiff is left with no choice but to seek the assistance of the Court. For all the reasons set forth below and in the currently filed Separate Statement, the Court should grant Plaintiff's motion and order that this deposition proceed at the office of Plaintiff’s counsel within ten days of the Court’s order. IL. THE DEFENDANT HAS NO LEGITIMATE GROUNDS FOR ITS FAILURE TO PRODUCE A DEPONENT AND DOCUMENTS FOR ITS PROPERLY NOTICED DEPOSITION As set forth in the procedural history, Plaintiff has made a reasonable effort to collaboratively schedule this further deposition. Each request contained within the notice is related to very specific allegations of the Complaint, the injuries suffered by the Plaintiff, the applicable rules, laws and regulations, and the issue of ratification pursuant to Civil Code §3294(b) as required pursuant to Welfare & Institutions Code §15757(c) and 15657.5(b)(1). Plaintiff's counsel firmly believes the deposition process of a corporate representative as contemplated by Code of Civil Procedure §2025.230 to be the most cost effective and minimally intrusive mechanism of timely acquisition of the evidence necessary to meet our clients heightened level of proof in this Elder Abuse and Negligent Hiring and Supervision case. The Defendant has no justification for refusing to produce a deponent as to Topics of Inquiry Nos. 3 and 4, and responsive documents to Request for Production Nos. 17, 26, and 30, requested at the properly noticed deposition. Defendants refusal to produce a deponent as to Topics of Inquiry Nos. 3 and 4, and the documents requested in response to Request for Production Nos. 17, 26, and 30, at its legally noticed deposition is nothing more than a delay tactic. Plaintiff has been more than 3 PLAINTIFF'S NOTICE OF MOTION AND MTC ACTUAL PRODUCTION OF DOCUMENTS AND FURTHER DEPOSITION OF THE PMK OF MANOR CARE OF FOUNTAIN VALLEY CA, LLC MA\7avac Ana (10.076WPleadinoc\MT( Further PMK Denn Fanntain Valley CA TT dney G A R C I A & A R T I G L I E R E O N E W O R L D T R A D E C E N T E R , SU IT E 19 50 L O N G B E A C H , C A L I F O R N I A 90 83 1 TE LE PH ON E (5 62 ) 21 6- 52 70 * F A C S I M I L E (5 62 ) 21 6- 52 71 Lo QW 9 S N nN EA W N R N N N N N N N O N ee em em em pm pm em pm pm CC 93 A n n A W N = O O Y 0 d S N E W N O N m e reasonable in attempting to schedule the deposition of the Person Most Knowledgeable of Manor Care of Fountain Valley CA, LLC. Defendant’s refusal to produce a fully capable deponent as requested at deposition is not justified and as such the Defendant should be compelled to attend its deposition within ten days of this hearing, on a date selected by Garcia & Artigliere and at the offices of Garcia & Artigliere. III. THE BURDEN OF SUBSTANTIATING THE DEFENDANTS’ FAILURE TO PRODUCE A FULLY CAPABLE DEPONENT AT THEIR LAWFULLY NOTICED DEPOSITION IS ON DEFENDANT AND DEFENDANT CANNOT MEET THIS BURDEN A party who seeks to resist or limit a self-executing form of discovery has the burden of producing facts that establish, to the Court’s satisfaction, good cause for denying or limiting the discovery sought. Southern Californian Edison Co. v. Superior Court, (1972) 7 Cal.3d 832, 843. Depositions are self-executing. Accordingly, to justify its failure to produce a deponent responsive to Topics of Inquiry 3 and 4, as requested at deposition, Respondent needed to file a protective order or motion to quash the deposition notice. Code of Civil Procedure §§2025.420(a) and 2025.410. Here, the Defendant makes no effort to justify its refusal to produce a fully capable deponent as to topics of inquiry 3 and 4, and its failure to produce the documents in response to Request for Production Nos. 17, 26, and 30, as requested at their lawfully noticed deposition. IV. THE COURT HAS AUTHORITY TO COMPEL THE PERSON MOST KNOWLEDGEABLE OF THE DEFENDANT TO APPEAR FOR DEPOSITION Code of Civil Procedure §2025.450(a) provides in pertinent part: If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it..., the party giving the notice may move for an order compelling the deponent's attendance and testimony... Code of Civil Procedure §2025.450(a). Code of Civil Procedure §2025.270(d) further provides: “On motion or ex parte application of any party or deponent, for good cause shown, the court may shorten or extend the time for 4 PLAINTIFF'S NOTICE OF MOTION AND MTC ACTUAL PRODUCTION OF DOCUMENTS AND FURTHER DEPOSITION OF THE PMK OF MANOR CARE OF FOUNTAIN VALLEY CA, LLC MAZavac Ana (10.026WPleadinoc\MT( Further PMK Denn Fountain Valley CA TTC daey G A R C I A & A R T I G L I E R E O N E W O R L D T R A D E C E N T E R , SU IT E 19 50 L O N G B E A C H , C A L I F O R N I A 90 83 1 « F A C S I M I L E (5 62 ) 21 6- 52 71 T E L E P H O N E (5 62 ) 21 6- 52 70 oo 0 0 9 A n l A W N BN N N N N N N N N e e em em p m p m m d mm mk md je @® 9 A Nn A W N = S C N S N N T E W N E e scheduling a deposition, or may stay its taking until the determination of a motion for a protective order under Section 2025.420.” Code of Civil Procedure §2025.480(a) provides in pertinent part: If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production. Code of Civil Procedure §2025.480(a). Here, Plaintiff noticed this deposition pursuant to the appropriate provisions of the California Code of Civil Procedure. The Defendant failed to produce a fully capable deponent as requested on Plaintiff’s lawful notice of deposition. The Defendant did not file the required motions to quash. Accordingly, the Court has authority to compel the Defendant to produce a deponent as requested at deposition. V. THE IMPOSITION OF SANCTIONS IS WARRANTED AND REQUIRED Code of Civil Procedure §2023.010 provides that sanctions may be imposed against a party for failing to respond to discovery, as follows: Misuses of the discovery process include... (d) Failing to respond or to submit to an authorized method of discovery. (h) Making, or opposing, unsuccessfully and without substantial Justification, a motion to compel or to limit discovery. (1) Failing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery, if the section governing a particular discovery motion requires the filing of a declaration stating facts showing that such an attempt has been made. Notwithstanding the outcome of the particular discovery motion, the court shall impose a monetary sanction ordering that any party or attorney who fails to confer as required pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct. Code of Civil Procedure §2023.010. Code of Civil Procedure §2023.030 further provides: To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity 5 PLAINTIFF’S NOTICE OF MOTION AND MTC ACTUAL PRODUCTION OF DOCUMENTS AND FURTHER DEPOSITION OF THE PMK OF MANOR CARE OF FOUNTAIN VALLEY CA, LLC MA\Z7avac Ana (19.076WPleadinec\MT(™ Further PMK Denn Fanntain Valley CA TTC dney G A R C I A & A R T I G L I E R E O N E W O R L D T R A D E C E N T E R , SU IT E 19 50 L O N G B E A C H , C A L I F O R N I A 90 83 1 + FA CS IM IL E (5 62 ) 21 6- 52 71 T E L E P H O N E (5 62 ) 21 6- 52 70 No 0 9 S N WN AE W N N N N N N N N N O N e e em e m em p m p m e k e k p m 0 N A N N A W N =H S Y ® O S N A W N O N m o e for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process: (a) 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. Code of Civil Procedure §2023.030. As it relates to depositions, Code of Civil Procedure §2025.480(j) further provides: The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. Code of Civil Procedure §2025.480(). Here, the Defendant and its attorneys are subject to monetary sanctions because they had no good faith basis for failing to produce a deponent as requested at this deposition and are only attempting to delay Plaintiff's discovery. The Defendant served no motions to quash and is now delaying the process by refusing to provide a single date to depose. Such actions warrant the imposition of sanctions. VI. CONCLUSION Based on the foregoing, Plaintiff respectfully requests that the Court grant Plaintiff's Motion to Compel and issue an Order compelling the further deposition of the Person Most Knowledgeable of Manor Care of Fountain Valley CA, LLC, to take place within 10 days of this hearing, on a date and location selected by Garcia & Artigliere. Plaintiff also seeks the imposition of sanctions in the amount of $5,210.00 as against the defendant Manor Care of Fountain Valley CA, LLC and its attorneys of record Buchanan Ingersoll & Rooney, LLP, jointly and severally and payable to Garcia & Artigliere within ten days of the hearing on this motion. GARCIA & ARTIGLIERE JV ns By: 7 “Stephen M. Gardly/ Attorneys for Claimant DATED: December 24, 2019 6 PLAINTIFF'S NOTICE OF MOTION AND MTC ACTUAL PRODUCTION OF DOCUMENTS AND FURTHER DEPOSITION OF THE PMK OF MANOR CARE OF FOUNTAIN VALLEY CA, LLC MA7avac Ana (10.07AWPleadined\ MTC Further PMK Denn Fanntain Vallev CA TTC dacy G A R C I A & A R T I G L I E R E O N E W O R L D T R A D E C E N T E R , S U I T E 18 50 L O N G B E A C H , C A L I F O R N I A 90 83 1 T E L E P H O N E (5 62 ) 21 6- 52 70 + F A C S I M I L E (5 62 ) 21 6- 52 71 oo 0 NN S N nN A W N BN O N N N N N N N N Ee e m em p m j m mk p m p m p m je @ 1 AN nN A W N E O S CO a S WN E W N m e DECLARATION OF MATTHEW J. GUSTIN I, Matthew J. Gustin, declare as follows: 1. I am an attorney duly admitted to practice before this Court. I am an attorney with Garcia & Artigliere, attorneys of record for Ashraf Aziz. I have personal knowledge of the facts set forth herein, except as to those stated on information and belief and, as to those, I am informed and believe them to be true. If called as a witness, I could and would competently testify to the matters stated herein. 2. On information and belief our firm has served as lead counsel in over 2500 elder and/or dependent adult abuse cases. a On information and belief our firm has served as counsel in over 15 elder abuse trials. 4. Attached hereto as exhibits are true and correct copies of that more fully described in the body of the pleading. 5. That Stephen M. Garcia of our office prepared the notice of deposition at issue with an eye on the prima facie elements of proof in an EADACPA action and what discovery is required to address said elements as well as historical practices of defense counsel here. 6. It is the custom and practice of this office to send a letter with any deposition notice inviting collaborative, yet timely, rescheduling of depositions should the date noticed for the deposition be unavailable for the adverse party. We followed that course here as more fully set forth in the Separate Statement. 1: Despite multiple meet and confer letters and the fact that Plaintiff's counsel sent a draft of the notice in anticipation of Defendant’s delay to find the proper deponent(s), on July 10, 2019, following proper service of the first amended complaint, plaintiff's counsel served the Notice of Deposition of the Person Most Knowledgeable of Manor Care of Fountain Valley. Please see Exhibit “2”. 8. Unfortunately, defense counsel did not respond within the time frame reasonably offered and accordingly Plaintiff filed her motion to compel on August 2, 2019. 9. On November 19, 2019, during the hearing on Plaintiff's Motion to Quash Defendant’s Subpoenas, the Court requested for Plaintiff's counsel to choose one of the dates 1 PLAINTIFF'S NOTICE OF MOTION AND MTC ACTUAL PRODUCTION OF DOCUMENTS AND FURTHER DEPOSITION OF THE PMK OF MANOR CARE OF FOUNTAIN VALLEY CA, LLC MZ avac Anal 19-0NANPleadinocd\ MTC Further PMK Nena Fanntain Valley CA 11 daey G A R C I A & A R T I G L I E R E O N E W O R L D T R A D E C E N T E R , SU IT E 19 50 L O N G B E A C H , C A L I F O R N I A 90 83 1 TE LE PH ON E (5 62 ) 21 6- 52 70 + FA CS IM IL E (5 62 ) 21 6- 52 71 oe 00 NO S N nt A W N N N N N N N N O N O N E E em em p m mk mt p t p t p d pe WW 9 AN N T AER W N = SS YO 0 g S N A W N = e defense counsel provided and the parties stipulated for the deposition to occur on December 10, 2019 and Plaintiff withdrew the Motion to Compel on calendar. 10. Thave personal knowledge of the reasonable billing rate for an Associate in this field. Approximately 2 hours of Associate time has been expended in the preparation of a draft of this motion, separate statements and supporting declarations at a customary and reasonable billing rate in matters in which we represent Plaintiffs on a contingency basis of $325.00 per hour. Additionally, Stephen M. Garcia has spent 1 hour preparing and finalizing these papers and will spend another 4 hours considering the opposition, preparing a reply and attending the hearing of this motion at a reasonable billing rate in matters in which we represent Plaintiff’s on a contingency basis of $900.00 per hour. Finally, $60.00 has been spent in the filing of this motion for a total of $5,210.00. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed December 24%, 2019 at Long Beach, California. MAb pan Matthe® J. Gusgfy/ 2 PLAINTIFF'S NOTICE OF MOTION AND MTC ACTUAL PRODUCTION OF DOCUMENTS AND FURTHER DEPOSITION OF THE PMK OF MANOR CARE OF FOUNTAIN VALLEY CA, LLC MA\7avac Ana (10.0AWPleadinotMT(™ Further PMK Denn Eanntain Vallev 0A 11 C daey Exhibit “1” 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE ANA MARIA ZAYAS, by and ) through her Personal ) Representative, Yvette Zayas;) et al., ) Plaintiffs, ) VS. JNo. 30-2019-01061318 MANOR CARE OF FOUNTAIN VALLEY) CU-MC-CJgcC CA, LLC; et al., ) Defendants. ) ) Person Most Knowledgeable of MANOR CARE OF FOUTAIN VALLEY CA, LLC Long Beach, California Tuesday, December 10, 2019 Volume I Reported by: LORRAINE CHAMPAGNE CSR No. 6452 Job No. 3786763 PAGES 1 - 76 Page 1 Veritext Legal Solutions 866 299-5127 10 11 a3 14 15 le 17 18 19 20 21 22 23 24 25 BY MR. ARTIGLIERE: Q But in terms of the lunch, the best way to look to see whether someone was on the floor working for lunch would be the timecards, correct? MR. KARMAND: Objection. Vague and ambiguous. THE WITNESS: Yes. BY MR. ARTIGLIERE: Q Request for Production of Documents No. 17 asks for blank incident or unusual occurrence report. I know -- or I saw that there was an incident report that was done -- produced previously in discovery. Did you happen to bring a blank one with you? A I didn't bring a blank one with me. Q Request for Production of Documents No. 18 asks for policies and procedures. Let me ask, going back to the incident report, did you review the incident report in this case, the one that you read -- you know about? A I read it. And do you know who wrote that? Yes. Who was it? Brenda Wright is an R.N.? Q A Q A It was Brenda Wright. Q A L.V.N. Q L.V.N. She still employed? Page 39 Veritext Legal Solutions 866 299-5127 10 an 13 17 18 19 20 2 22 23 24 25 A Yes. Q But a year's too long? A That is too long. Q Okay. Now, Request for Production of Documents No. 25 asks for these quality measures-type documents. Did you produce any of those? A No. Q Okay. Request for Production of Documents No. 6 -- 26, I'm sorry, asks for resident council meeting minutes. Do you guys do those? A Yes. Q And why do you do resident council meetings? A It is part. of our quality dssurance, it is -- our residents, if they have any concerns or needs or requests, they go over it, and they want to go on outings, different activities and stuff like that, so that's where everything is discussed. Q Well, the residents aren't actually members of the quality assurance committee, are they? MR. KARMAND: Objection. Do you understand the question? THE WITNESS: Yeah, well, we get their input. BY MR. ARTIGLIERE: Q Right, so these resident council meetings put you on notice of potential problems areas in the facility Page 62 Veritext Legal Solutions 866 299-5127 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 which need to be addressed to improve the facility, or maybe it puts you on notice of things that you're doing well, right? MR. KARMAND: Objection. Vague and ambiguous. THE WITNESS: Yes. BY MR. ARTIGLIERE: Q Did you bring any of the documents that we asked for in Request for Production of Documents No. 26 for those resident council meeting minutes? A No. Q Okay. Does the facility utilize family council? A No. Q Does the facility utilize in-service education? A Yes. Q I noted that as part of the production, that you did provide in-services documents in response to request number 27. And you try to have qualified staff at the facility, right? A Yes. Q You don't just throw 'em out on the floor and say, Best of luck, we don't care what happens, right? MR. KARMAND: Objection. THE WITNESS: We don't. BY MR. ARTIGLIERE: Page 63 Veritext Legal Solutions 866 299-5127 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 evaluations, and disciplinary documents, correct? MR. KARMAND: Objection. Vague and ambiguous, mischaracterizes prior testimony. THE WITNESS: Yes. I don't know if that list is exhaustive. BY MR. ARTIGLIERE: Q Are there any others that I forgot? A Well, I can't recall right now, but -- Q I've done this a few times. That's a pretty good A That's a pretty good list, yes. Q Did you happen to bring any documents that we requested in Request for Production of Documents No. 28, 29 that asks for those fitness or qualification documents for you, the administrator, and -- sorry, it's only request number 28, anybody involved in providing nursing services, is there any of that? A No. Q Okay. Request for Production of Documents No. 29 asks for the administrative support services agreements. I saw that in the production. Written organizational chart, I did not see that in the production. Do you guys have one of those? MR. KARMAND: Objection. Vague and ambiguous. THE WITNESS: Yes. Page 68 Veritext Legal Solutions 866 299-5127 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A No. Q Okay. Done pretty well so far, I'm just gonna go back through the categories and see if there's anything else I need to ask you, okay? A Thank you. MR. KARMAND: And I'll just -- while you're doing that, Counsel, I'll just note for the record there's a few categories we objected to, and then to the extent there's issues, we'll handle those in a meet and confer. MR. ARTIGLIERE: Uh-huh. Q In regard to Ms. Zayas, do you know each date and time in which she suffered a fall at the facility? A I have to look at the incident report. Q Is that the only fall that she had? A To my knowledge, yes. Q But we've talked about all the individuals who may have witnessed or had any information about the fall, right? A Yes. MR. KARMAND: Objection. Vague and ambiguous. THE WITNESS: We did. BY MR. ARTIGLIERE: Q Do you know the identity of all persons who prepared, modified, updated, changed, or altered any facility care plan or plan of care for the plaintiff? Page 71 Veritext Legal Solutions 866 299-5127 10 11 18 19 20 21 22 23 54 25 MR. KARMAND: Objection. Vague and ambiguous. THE WITNESS: If I could see the record, then T would be able to identify them. BY MR. ARTIGLIERE: Q But as we sit here today, you can't tell me, correct? A No. No. Q Okay. How about the individuals who provided nursing services to the plaintiff, do you know the individuals! names? I know you gave me the list of everybody -- the list that you gave me, was that the people who rovided care to my client, or is that everybody in the building, do you know? MR. KARMAND: Objection. Vague and ambiguous. Do you know which list he's referring to? THE WITNESS: I'm not sure what list you're referring to. BY MR. ARTIGLIERE: Q Okay. Well, as you sit here today, can you identify all individuals who provided nursing services to the plaintiff at the facility? MR. KARMAND: Objection. Vague and ambiguous. THE WITNESS: If I see the record, I can do that. BY MR. ARTIGLIERE: Q But as you sit here today, you can't, right? Page 72 Veritext Legal Solutions 866 299-5127 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yeah. Q All right. Were there any unusual occurrence reports pertaining to Ms. Zayas, other than the incident report we talked about? MR. KARMAND: Objection. Vague and ambiguous. THE WITNESS: No. BY MR. ARTIGLIERE: Q Does the facility have any documents that memorializes the number of residents who suffer from falls, et cetera? MR. KARMAND: Objection. Vague and ambiguous. BY MR. ARTIGLIERE: Q Would that be the same CASPER report and -- Yeah. -- quality measures? >» 0 0» Yeah. MR. KARMAND: Belated objection. Compound. MR. ARTIGLIERE: I don't have any further questions for you today, but I'll suspend the deposition, because I think there's some document production requests and areas of inquiry that she didn't or couldn't speak to today, but we'll meet and confer about that. MR. KARMAND: We'll disagree, obviously, but we're happy to meet and confer. Page 73 Veritext Legal Solutions 866 299-5127 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I, DENISE LORENZO, do hereby declare under penalty of perjury that I have read the foregoing transcript; that I have made any corrections as appear noted, in ink, initialed by me, or attached hereto; that my testimony as contained herein, as corrected, is true and correct. EXECUTED this day of i 20 , at 7 (City) (State) DENISE LORENZO Volume I Page 75 Veritext Legal Solutions 866 299-5127 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I, the undersigned, a Certified Shorthand Reporter of the State of California, do hereby certify: That the foregoing proceedings were taken before me at the time and place herein set forth; that any witnesses in the foregoing proceedings, prior to testifying, were administered an oath; that a record of the proceedings was made by me using machine shorthand, which was thereafter transcribed under my direction; that the foregoing transcript is a true record of the testimony given. Further, that if the foregoing pertains to the original transcript of a deposition in a Federal Case, before completion of the proceedings, review of the transcript [ ] was [ ] was not requested. I further certify I am neither financially interested in the action nor a relative or employee of any attorney or any party to this action. IN WITNESS WHEREOF, I have this date subscribed my name. Dated: December 12, 2019 ( A i p= end A arr Cg YR Lorraine Champagne, CSR No. 6452 Page 76 Veritext Legal Solutions 866 299-5127 G A R C I A & A R T I G L I E R E O N E W O R L D T R A D E C E N T E R , S U I T E 19 50 L O N G B E A C H , C A L I F O R N I A 90 83 1 T E L E P H O N E (5 62 ) 21 6- 52 70 + F A C S I M I L E (5 62 ) 21 6- 52 71 No 0 9 S N N t A W N N N O N N N N N NN N N N O m m o m o m p m m m p m b m mk p m p d WW NN A n A W N = S Y 0 S N R A W N N m s PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Los Angeles, State of California. My business address is One World Trade Center, Suite 1950, Long Beach, CA 90831. On December 24, 2019, I served true copies of the following document(s) described as PLAINTIFFS NOTICE OF MOTION AND MOTION TO COMPEL ACTUAL PRODUCTION OF DOCUMENTS AND THE FURTHER DEPOSITION OF THE PERSON MOST KNOWLEDGEABLE OF MANOR CARE OF FOUNTAIN VALLEY CA, LLC; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION IN SUPPORT THEREOF; REQUEST FOR MONETARY SANCTIONS AGAINST DEFENDANT MANOR CARE OF FOUNTAIN VALLEY CA, LLC AND ITS ATTORNEYS OF RECORD BUCHANAN INGERSOLL & ROONEY, LLP on the interested parties in this action as follows: Neema Shojai, Esq. Attorneys for Defendants Kimberly Arouh, Esq. Buchanan Ingersoll & Rooney, LLP 600 West Broadway, Ste. 1100 San Diego. CA 92101 Telephone: (619) 239-8700 Facsimile: (619) 702-3898 BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the persons at the addresses listed in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. 1 am readily familiar with the practice of Garcia & Artigliere for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. [ declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on December 24, 2019, at Long Beach, California. Cuan mam Stephanie Barenos
