Preview
1 ROB BONTA
Attorney General of California
2 NIROMI WIJEWANTHA
Supervising Deputy Attorney General
3 Samona L. Taylor (SBN 295256)
KATHERINE J. GRAINGER (SBN 333901)
4 455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
5 Telephone: (415) 510-3870
Fax: (415) 703-5480 Exempt from Filing Fees—
6 E-mail: Katherine.Grainger@doj.ca.gov Gov. Code §. 6103
Attorneys for Defendant
7 California Department of Public Health
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN MATEO
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COUNTY OF SAN MATEO dba SAN Case No. 19-CIV-06040
13 MATEO MEDICAL CENTER D/P SNF,
OPPOSITION TO PLAINTIFF’S
14 Plaintiff, MOTION TO COMPEL AND MOTION
FOR SANCTIONS
15 v.
Date: August 17, 2022
16 Time: 2:00 p.m.
DEPARTMENT OF PUBLIC HEALTH OF Dept: 2
17 THE STATE OF CALIFORNIA, and Judge: The Honorable Marie S. Weiner
DOES 1 through 10, inclusive, Trial Date: January 27, 2022
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Defendant.
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20
INTRODUCTION
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Plaintiff’s motion to compel and for sanctions should be denied as moot since Dr. Steinberg
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was paid his fees on July 12, 2022. Additionally, the motion for sanctions should be denied
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because the delay between Dr. Steinberg’s deposition and when he received payment (albeit
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lengthy), was due to an administrative accounting error and was in no way intentional. Once
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counsel for Defendant became aware of the outstanding payment, they ensured that payment was
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promptly transmitted to Dr. Steinberg. As a result, Plaintiff’s motion should be denied.
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Opposition to Motion to Compel and Motion for Sanctions (19-CIV-06040)
1 FACTUAL BACKGROUND
2 The facts relevant to this case began on January 1, 2019, when Resident 1, a resident in
3 Plaintiff County of San Mateo’s long term care facility, choked on a medical latex glove during
4 mealtime. Resident 1 was subsequently transported to the hospital, where he died. His cause of
5 death was determined to be asphyxiation by foreign object. As the primary regulator of skilled
6 nursing facilities in California, CDPH commenced an investigation of the January 1, 2019
7 choking death of Resident 1, and ultimately concluded that the facility violated regulatory
8 provisions aimed at providing adequate supervision to prevent accidents and maintaining a safe
9 resident environment (42 C.F.R. § 483.25(d)(1), (2).) In September 2019, CDPH issued a Citation
10 at the Class “AA” level, with $100,000 in civil penalty. In October 2019, the facility filed suit in
11 this Court challenging that Citation.
12 From January 27, 2022 to February 10, 2022, this Court held a seven day trial in this case.
13 In preparation for trial, Plaintiff disclosed Dr. Karl Steinberg as their expert witness, and his
14 deposition was held on January 21, 2022. The deposition of Dr. Steinberg lasted three and a half
15 hours. On January 25, 2022, counsel for Defendant informed counsel for Plaintiff that Dr
16 Steinberg needed to provide his employer identification number and social security number in
17 order to be paid for his deposition. Dr. Steinberg provided his required financial information in
18 order for the department to pay him. On April 8, 2022, Dr. Steinberg was informed that his
19 invoice had been approved, and Department of Justice accounting would process his payment
20 within three to four weeks. However, due to an administrative accounting error, Dr. Steinberg’s
21 invoice was not paid until July 12, 2022.
22 ARGUMENT
23 I. PLAINTIFF’S MOTION IS MOOT, AS PLAINTIFF’S EXPERT HAS NOW BEEN PAID
24 As an initial matter, the court should deny Plaintiff’s motion to compel and motion for
25 sanctions as the issue is now moot. A motion is moot when, although there initially presented an
26 existing controversy, the acts of the parties or a court decision have deprived the controversy of
27 its life. (Barth-Wittmore Ins. v. H. R. Murphy Enterprises Inc. (1985) 169 Cal. App. 3d 124,
28 135.) As of July 12, 2022, Plaintiff’s expert Dr. Steinberg was paid for his outstanding deposition
2
Opposition to Motion to Compel and Motion for Sanctions (19-CIV-06040)
1 fee. (See Decl. of Katherine Grainger (Grainger Decl.), ¶ 13.). In fact, as soon as defense
2 counsel was informed that the deposition fee had not been paid, they immediately followed up
3 with their accounting department regarding the status of payment. (Grainger Decl, ¶ 4 12.) As a
4 result, Plaintiff’s pending motion is now irrelevant and therefore moot.
5 II. SANCTIONS AGAINST DEFENDANT ARE INAPPROPRIATE, AS THE DELAY IN
PAYMENT OF THE DEPOSITION FEE WAS DUE TO AN INADVERTENT
6 ADMINISTRATIVE ERROR
7 A. Counsel for Defendants Mistakenly Believed That the Department of
Justice Does Not Advance Deposition Fees Pursuant to the California
8 Constitution
9 Plaintiff relies on Code of Civil Procedure section 2034.430(b) and 2034.450, which
10 requires that an expert is paid for a deposition in advance of, or at a deposition. (See Motion, p. 2
11 – 3.) However, the California Constitution, article 16, section 6 prohibits state and local
12 governments from gifting public funds to private parties. This has been interpreted by the
13 Department of Justice Accounting Department (Accounting) to prohibit the advancement of most
14 fees to contracted parties. (Declaration of Patrick Owens (Owens Decl.), ¶ 6.) There are certain
15 limited exceptions to this rule, which includes opposing expert fees under the Code of Civil
16 Procedure section 2034.450. (Ibid.) However, based on this constitutional prohibition and
17 Accounting’s general practices, counsel for Defendant were unaware of this exception, and
18 mistakenly believed that deposition fees could not be advanced by their office. Although there
19 was significant delay following the completion of the deposition, counsel for defendants raise this
20 point to explain why Dr. Steinberg was not paid in advance of his deposition.
21 B. The Additional Delay in Payment Was Due to Administrative Missteps,
and Was Unintentional
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Further, the delay in Dr. Steinberg’s payment after his deposition was due to administrative
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missteps and was unintentional. Counsel for Defendant received the required information to
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transmit payment to Dr. Steinberg on January 25, 2022. (Declaration of Katherine Grainger
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(Grainger Decl.), ¶ 4.) On January 27, 2022, counsel for Defendant’s secretary began preparing
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the paperwork to send Dr. Steinberg’s invoice to accounting. (Ibid.) However, counsel’s
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secretary utilized the incorrect accounting form, and as a result the invoice request was not
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3
Opposition to Motion to Compel and Motion for Sanctions (19-CIV-06040)
1 forwarded to accounting at that time. (Ibid.) Further complicating matters, after trial and up to
2 the present, lead trial counsel Deputy Attorney General (DAG) Samona Taylor has been
3 intermittently out of the office on unplanned sick leave. (Id. ¶ 6.) On April 4, 2022, Plaintiff’s
4 counsel Sara Avakian emailed defense counsel, following up on post-trial housekeeping matters,
5 including Dr. Steinberg’s deposition payment. (Id. ¶ 7.) Upon receipt of DAG Taylor’s out of
6 office, Sara followed up with second chair counsel DAG Katherine Grainger directly, who
7 ensured that Dr. Steinberg’s invoice request was sent to accounting on April 8, 2022. (Ibid.)
8 That same day, Dr Steinberg was informed that he should expect payment within 3-4 weeks. (Id.
9 ¶ 8; Exh. A.)
10 After April 8, when Dr. Steinberg’s invoice was transmitted to accounting, and up until the
11 receipt of Plaintiff’s motions to compel and for sanctions, counsel for Defendants believed that
12 Dr. Steinberg’s deposition fee had been paid. (Id. ¶ 10.) Upon receipt of Plaintiff’s motion
13 however, counsel for Defendant contacted their accounting department regarding the missing
14 payment. (Id. ¶ 11 – 12.) Following an internal investigation, accounting informed defense
15 counsel that due to an administrative error in the Department of Justice accounting request
16 tracking system, Dr. Steinberg’s deposition fee was recorded as completed and processed in April
17 2022, even though the payment remained outstanding. (Owens Decl., ¶ 4.) On July 12, 2022, Dr.
18 Steinberg’s deposition fee was transmitted via overnight mail. (Owens Decl., ¶ 5, Grainger Decl.
19 ¶ 7.)
20 In this case, a variety of factors led to the delay in Dr. Steinberg’s payment. While counsel
21 for Defendants apologize for the delay, they were under the mistaken impression that Dr.
22 Steinberg had been paid in April, and Dr. Steinberg had been informed to that effect. Counsel for
23 Defendant were not acting in bad faith or with the intent to cause delay or refuse payment to Dr.
24 Steinberg. If counsel for Defendant had been informed of the issue, the error could have been
25 corrected without the time and expense of bringing this matter before the court and saving judicial
26 resources. However, given that counsel for Defendant were unaware that Dr. Steinberg had not
27 been paid, and Dr. Steinberg has now been paid for his deposition, counsel for Defendant oppose
28 the motion to compel and motion for sanctions.
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Opposition to Motion to Compel and Motion for Sanctions (19-CIV-06040)
1 CONCLUSION
2 For the foregoing reasons, the Court should deny Plaintiff’s motion to compel and motion
3 for sanctions.
4
Dated: July 20, 2022 Respectfully submitted,
5
ROB BONTA
6 Attorney General of California
NIROMI WIJEWANTHA
7 Supervising Deputy Attorney General
8
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10 KATHERINE J. GRAINGER
Deputy Attorney General
11 Attorneys for Defendant California
Department of Public Health
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SF2019300570
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Opposition to Motion to Compel and Motion for Sanctions (19-CIV-06040)
DECLARATION OF SERVICE BY E-MAIL and U.S. Mail
Case Name: San Mateo Medical Center D/P SNF v. CDPH
Case No.: 19-CIV-06040
I declare:
I am employed in the Office of the Attorney General, which is the office of a member of the
California State Bar, at which member's direction this service is made. I am 18 years of age or
older and not a party to this matter. I am familiar with the business practice at the Office of the
Attorney General for collection and processing of correspondence for mailing with the United
States Postal Service. In accordance with that practice, correspondence placed in the internal
mail collection system at the Office of the Attorney General is deposited with the United States
Postal Service with postage thereon fully prepaid that same day in the ordinary course of
business.
On July 21, 2022, I served the attached:
OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL AND MOTION FOR
SANCTIONS
DECLARATION OF KATHERINE GRAINGER IN SUPPORT OF OPPOSITION TO
PLAINTIFF’S MOTION TO COMPEL AND MOTION FOR SANCTIONS; AND IN
SUPPORT OF MOTION FOR RELIEF PURSUANT TO CCP 473
DECLARATION OF PATRICK OWENS IN SUPPORT OF OPPOSITION TO
PLAINTIFF’S MOTION TO COMPEL AND MOTION FOR SANCTIONS; AND IN
SUPPORT OF MOTION FOR RELIEF PURSUANT TO CCP 473
by transmitting a true copy via electronic mail. In addition, I placed a true copy thereof enclosed
in a sealed envelope, in the internal mail system of the Office of the Attorney General, addressed
as follows:
Jonathon E. Cohn, Esq.
Sara Avakian, Esq.
Polsinelli LLP - Los Angeles
2049 Century Park East, Suite 2900 Los
Angeles, CA 90067
E-mail Address: jcohn@polsinelli.com
savakian@polsinelli.com
I declare under penalty of perjury under the laws of the State of California and the United States
of America the foregoing is true and correct and that this declaration was executed on July 21,
2022, at San Francisco, California.
Eileen Santos
Declarant Signature
Preview
1 ROB BONTA Attorney General of California 2 NIROMI WIJEWANTHA Supervising Deputy Attorney General 3 Samona L. Taylor (SBN 295256) KATHERINE J. GRAINGER (SBN 333901) 4 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 5 Telephone: (415) 510-3870 Fax: (415) 703-5480 Exempt from Filing Fees— 6 E-mail: Katherine.Grainger@doj.ca.gov Gov. Code §. 6103 Attorneys for Defendant 7 California Department of Public Health 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN MATEO 10 11 12 COUNTY OF SAN MATEO dba SAN Case No. 19-CIV-06040 13 MATEO MEDICAL CENTER D/P SNF, OPPOSITION TO PLAINTIFF’S 14 Plaintiff, MOTION TO COMPEL AND MOTION FOR SANCTIONS 15 v. Date: August 17, 2022 16 Time: 2:00 p.m. DEPARTMENT OF PUBLIC HEALTH OF Dept: 2 17 THE STATE OF CALIFORNIA, and Judge: The Honorable Marie S. Weiner DOES 1 through 10, inclusive, Trial Date: January 27, 2022 18 Defendant. 19 20 INTRODUCTION 21 Plaintiff’s motion to compel and for sanctions should be denied as moot since Dr. Steinberg 22 was paid his fees on July 12, 2022. Additionally, the motion for sanctions should be denied 23 because the delay between Dr. Steinberg’s deposition and when he received payment (albeit 24 lengthy), was due to an administrative accounting error and was in no way intentional. Once 25 counsel for Defendant became aware of the outstanding payment, they ensured that payment was 26 promptly transmitted to Dr. Steinberg. As a result, Plaintiff’s motion should be denied. 27 28 1 Opposition to Motion to Compel and Motion for Sanctions (19-CIV-06040) 1 FACTUAL BACKGROUND 2 The facts relevant to this case began on January 1, 2019, when Resident 1, a resident in 3 Plaintiff County of San Mateo’s long term care facility, choked on a medical latex glove during 4 mealtime. Resident 1 was subsequently transported to the hospital, where he died. His cause of 5 death was determined to be asphyxiation by foreign object. As the primary regulator of skilled 6 nursing facilities in California, CDPH commenced an investigation of the January 1, 2019 7 choking death of Resident 1, and ultimately concluded that the facility violated regulatory 8 provisions aimed at providing adequate supervision to prevent accidents and maintaining a safe 9 resident environment (42 C.F.R. § 483.25(d)(1), (2).) In September 2019, CDPH issued a Citation 10 at the Class “AA” level, with $100,000 in civil penalty. In October 2019, the facility filed suit in 11 this Court challenging that Citation. 12 From January 27, 2022 to February 10, 2022, this Court held a seven day trial in this case. 13 In preparation for trial, Plaintiff disclosed Dr. Karl Steinberg as their expert witness, and his 14 deposition was held on January 21, 2022. The deposition of Dr. Steinberg lasted three and a half 15 hours. On January 25, 2022, counsel for Defendant informed counsel for Plaintiff that Dr 16 Steinberg needed to provide his employer identification number and social security number in 17 order to be paid for his deposition. Dr. Steinberg provided his required financial information in 18 order for the department to pay him. On April 8, 2022, Dr. Steinberg was informed that his 19 invoice had been approved, and Department of Justice accounting would process his payment 20 within three to four weeks. However, due to an administrative accounting error, Dr. Steinberg’s 21 invoice was not paid until July 12, 2022. 22 ARGUMENT 23 I. PLAINTIFF’S MOTION IS MOOT, AS PLAINTIFF’S EXPERT HAS NOW BEEN PAID 24 As an initial matter, the court should deny Plaintiff’s motion to compel and motion for 25 sanctions as the issue is now moot. A motion is moot when, although there initially presented an 26 existing controversy, the acts of the parties or a court decision have deprived the controversy of 27 its life. (Barth-Wittmore Ins. v. H. R. Murphy Enterprises Inc. (1985) 169 Cal. App. 3d 124, 28 135.) As of July 12, 2022, Plaintiff’s expert Dr. Steinberg was paid for his outstanding deposition 2 Opposition to Motion to Compel and Motion for Sanctions (19-CIV-06040) 1 fee. (See Decl. of Katherine Grainger (Grainger Decl.), ¶ 13.). In fact, as soon as defense 2 counsel was informed that the deposition fee had not been paid, they immediately followed up 3 with their accounting department regarding the status of payment. (Grainger Decl, ¶ 4 12.) As a 4 result, Plaintiff’s pending motion is now irrelevant and therefore moot. 5 II. SANCTIONS AGAINST DEFENDANT ARE INAPPROPRIATE, AS THE DELAY IN PAYMENT OF THE DEPOSITION FEE WAS DUE TO AN INADVERTENT 6 ADMINISTRATIVE ERROR 7 A. Counsel for Defendants Mistakenly Believed That the Department of Justice Does Not Advance Deposition Fees Pursuant to the California 8 Constitution 9 Plaintiff relies on Code of Civil Procedure section 2034.430(b) and 2034.450, which 10 requires that an expert is paid for a deposition in advance of, or at a deposition. (See Motion, p. 2 11 – 3.) However, the California Constitution, article 16, section 6 prohibits state and local 12 governments from gifting public funds to private parties. This has been interpreted by the 13 Department of Justice Accounting Department (Accounting) to prohibit the advancement of most 14 fees to contracted parties. (Declaration of Patrick Owens (Owens Decl.), ¶ 6.) There are certain 15 limited exceptions to this rule, which includes opposing expert fees under the Code of Civil 16 Procedure section 2034.450. (Ibid.) However, based on this constitutional prohibition and 17 Accounting’s general practices, counsel for Defendant were unaware of this exception, and 18 mistakenly believed that deposition fees could not be advanced by their office. Although there 19 was significant delay following the completion of the deposition, counsel for defendants raise this 20 point to explain why Dr. Steinberg was not paid in advance of his deposition. 21 B. The Additional Delay in Payment Was Due to Administrative Missteps, and Was Unintentional 22 Further, the delay in Dr. Steinberg’s payment after his deposition was due to administrative 23 missteps and was unintentional. Counsel for Defendant received the required information to 24 transmit payment to Dr. Steinberg on January 25, 2022. (Declaration of Katherine Grainger 25 (Grainger Decl.), ¶ 4.) On January 27, 2022, counsel for Defendant’s secretary began preparing 26 the paperwork to send Dr. Steinberg’s invoice to accounting. (Ibid.) However, counsel’s 27 secretary utilized the incorrect accounting form, and as a result the invoice request was not 28 3 Opposition to Motion to Compel and Motion for Sanctions (19-CIV-06040) 1 forwarded to accounting at that time. (Ibid.) Further complicating matters, after trial and up to 2 the present, lead trial counsel Deputy Attorney General (DAG) Samona Taylor has been 3 intermittently out of the office on unplanned sick leave. (Id. ¶ 6.) On April 4, 2022, Plaintiff’s 4 counsel Sara Avakian emailed defense counsel, following up on post-trial housekeeping matters, 5 including Dr. Steinberg’s deposition payment. (Id. ¶ 7.) Upon receipt of DAG Taylor’s out of 6 office, Sara followed up with second chair counsel DAG Katherine Grainger directly, who 7 ensured that Dr. Steinberg’s invoice request was sent to accounting on April 8, 2022. (Ibid.) 8 That same day, Dr Steinberg was informed that he should expect payment within 3-4 weeks. (Id. 9 ¶ 8; Exh. A.) 10 After April 8, when Dr. Steinberg’s invoice was transmitted to accounting, and up until the 11 receipt of Plaintiff’s motions to compel and for sanctions, counsel for Defendants believed that 12 Dr. Steinberg’s deposition fee had been paid. (Id. ¶ 10.) Upon receipt of Plaintiff’s motion 13 however, counsel for Defendant contacted their accounting department regarding the missing 14 payment. (Id. ¶ 11 – 12.) Following an internal investigation, accounting informed defense 15 counsel that due to an administrative error in the Department of Justice accounting request 16 tracking system, Dr. Steinberg’s deposition fee was recorded as completed and processed in April 17 2022, even though the payment remained outstanding. (Owens Decl., ¶ 4.) On July 12, 2022, Dr. 18 Steinberg’s deposition fee was transmitted via overnight mail. (Owens Decl., ¶ 5, Grainger Decl. 19 ¶ 7.) 20 In this case, a variety of factors led to the delay in Dr. Steinberg’s payment. While counsel 21 for Defendants apologize for the delay, they were under the mistaken impression that Dr. 22 Steinberg had been paid in April, and Dr. Steinberg had been informed to that effect. Counsel for 23 Defendant were not acting in bad faith or with the intent to cause delay or refuse payment to Dr. 24 Steinberg. If counsel for Defendant had been informed of the issue, the error could have been 25 corrected without the time and expense of bringing this matter before the court and saving judicial 26 resources. However, given that counsel for Defendant were unaware that Dr. Steinberg had not 27 been paid, and Dr. Steinberg has now been paid for his deposition, counsel for Defendant oppose 28 the motion to compel and motion for sanctions. 4 Opposition to Motion to Compel and Motion for Sanctions (19-CIV-06040) 1 CONCLUSION 2 For the foregoing reasons, the Court should deny Plaintiff’s motion to compel and motion 3 for sanctions. 4 Dated: July 20, 2022 Respectfully submitted, 5 ROB BONTA 6 Attorney General of California NIROMI WIJEWANTHA 7 Supervising Deputy Attorney General 8 9 10 KATHERINE J. GRAINGER Deputy Attorney General 11 Attorneys for Defendant California Department of Public Health 12 SF2019300570 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Opposition to Motion to Compel and Motion for Sanctions (19-CIV-06040) DECLARATION OF SERVICE BY E-MAIL and U.S. Mail Case Name: San Mateo Medical Center D/P SNF v. CDPH Case No.: 19-CIV-06040 I declare: I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On July 21, 2022, I served the attached: OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL AND MOTION FOR SANCTIONS DECLARATION OF KATHERINE GRAINGER IN SUPPORT OF OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL AND MOTION FOR SANCTIONS; AND IN SUPPORT OF MOTION FOR RELIEF PURSUANT TO CCP 473 DECLARATION OF PATRICK OWENS IN SUPPORT OF OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL AND MOTION FOR SANCTIONS; AND IN SUPPORT OF MOTION FOR RELIEF PURSUANT TO CCP 473 by transmitting a true copy via electronic mail. In addition, I placed a true copy thereof enclosed in a sealed envelope, in the internal mail system of the Office of the Attorney General, addressed as follows: Jonathon E. Cohn, Esq. Sara Avakian, Esq. Polsinelli LLP - Los Angeles 2049 Century Park East, Suite 2900 Los Angeles, CA 90067 E-mail Address: jcohn@polsinelli.com savakian@polsinelli.com I declare under penalty of perjury under the laws of the State of California and the United States of America the foregoing is true and correct and that this declaration was executed on July 21, 2022, at San Francisco, California. Eileen Santos Declarant Signature