Preview
1 KATHRYN A. STEBNER (SBN 121088)
KARMAN GUADAGNI (SBN 267631)
2 DEENA ZACHARIN (SBN 141249)
KELSEY CRAVEN (SBN 337179)
3 STEBNER GERTLER GUADAGNI & KAWAMOTO
A PROFESSIONAL LAW CORPORATION
4 870 Market Street, Suite 1285
San Francisco, CA 94102
5 Tel: (415) 362-9800
Fax: (415) 362-9801
6
KIRSTEN FISH (SBN 217940)
7 NEEDHAM KEPNER & FISH LLP
1960 The Alameda, Suite 210
8 San Jose, CA 95126
Tel: (408) 244-2166
9 Fax: (408) 244-7815
10 Attorneys for Plaintiffs
11
SUPERIOR COURT OF THE STATE OF CALIFORNIA
12
IN AND FOR THE COUNTY OF SONOMA
13
KELLIE TENNIER and RAYMOND CASE NO. SCV-268130
14 DONAHUE, Individually and as Successors-in-
Interest to the Estate of THERESA DONAHUE Assigned for All Purposes to:
15 Hon. Patrick M. Broderick, Dept. 16
Plaintiffs,
16 PLAINTIFFS’ OPPOSITION TO
vs. DEFENDANTS’ MOTION IN LIMINE TO
17 PRECLUDE FROM REFERENCING ANY
MBK SENIOR LIVING, LLC; MBK REAL
ESTATE, LLC; MUIRWOODS MSL LLC; INVESTIGATIONS, CONCLUSIONS,
18 DEFICIENCIES, CITATIONS OR
MSL COMMUNITY MANAGEMENT, LLC;
19 MUIRWOODS MEMORY CARE; and DOES PENALTIES (NEVARREZ)
1-75, Inclusive, [Motion in Limine No. 2 of 11]
20
Defendants. Date: July 14, 2023
21 Time: 8:30 a.m.
Dept. 16
22 Judge: Hon. Patrick M. Broderick
23 JURY TRIAL DEMANDED
24
25
26
27
1
28 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE FROM REFERENCING
ANY INVESTIGATIONS, CONCLUSIONS, DEFICIENCIES, CITATIONS OR PENALTIES (NEVARREZ)
[Motion in Limine No. 2 of 11]
1 TABLE OF CONTENTS
2 I. INTRODUCTION ...................................................................................................................... 7
3 II. EVIDENCE OF INVESTIGATIONS, CONCLUSIONS, DEFICIENCIES,
4 CITATIONS AND PENALTIES ISSUED BY DSS AGAINST DEFENDANTS
5 REGARDING OTHER RESIDENTS IS HIGHLY RELEVANT TO THE ISSUES
6 OF NOTICE, RECKLESSNESS AND RATIFICATION ......................................................... 7
7 III. DSS FINDINGS UNRELATED TO MS. DONAHUE ARE NOT UNDULY
8 PREJUDICIAL, WOULD NOT REQUIRE AN UNDUE CONSUMPTION OF
9 TIME, AND ARE NOT INADMISSIBLE CHARACTER EVIDENCE ................................ 13
10 IV. EVIDENCE OF DSS FINDINGS UNRELATED TO MS. DONAHUE DO NOT
11 CONSTITUTE INADMISSIBLE HEARSAY ......................................................................... 16
12
V. EVEN IF THE DSS FINDINGS UNRELATED TO MS. DONAHUE WERE
13 CONSIDERED HEARSAY, THEY FALL WITHIN THE OFFICIAL RECORDS
14 EXCEPTION ............................................................................................................................ 19
15
A. The DSS Annual Surveys, Citations and Deficiencies were Made by Public Employees
16
Acting Within the Scope of their Duty as DSS Investigators. ...................................... 19
17
B. The DSS Annual Surveys, Citations and Deficiencies were Made Contemporaneous to
18
Defendants’ Failures ..................................................................................................... 20
19
C. The DSS Annual Surveys. Citations and Deficiencies are Based on Information that
20
Establishes that the Records are Trustworthy ............................................................... 21
21
VI. Limited Lay Opinion Based on A Witness' Perceptions Is Permissible ................................... 22
22
23 VII. DEFENDANTS’ REQUEST TO EXCLUDE ALL INFORMATION
CONTAINED IN THE DSS DOCUMENTS REGARDING MS. DONAHUE IS
24
OVERBROAD.......................................................................................................................... 23
25
26 VIII. CONCLUSION ......................................................................................................................... 26
27
2
28 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE FROM REFERENCING
ANY INVESTIGATIONS, CONCLUSIONS, DEFICIENCIES, CITATIONS OR PENALTIES (NEVARREZ)
[Motion in Limine No. 2 of 11]
1 TABLE OF AUTHORITIES
2 Cases
3 Bihun v. AT&T Information Systems, Inc.
4 (1993) 13 Cal.App.4th 976 ........................................................................................................... 8, 16
5 Caro v. Smith
6 (1997) 59 Cal.App.4th 725 ............................................................................................................... 15
7 Carter v. Prime Healthcare Paradise Valley LLC
8 (2011) 198 Cal.App.4th 396 ............................................................................................................. 11
9 Coats v. Construction and General Laborers Local no. 185, et al.
10 (1971) Cal.App.3d 908 ............................................................................................................... 11, 17
Colarossi v. Coty US Inc.
11
(2002) 97 Cal.App.4th 1142 ............................................................................................................. 24
12
College Hospital v. Superior Court
13
(1994) 8 Cal.4th 704 ............................................................................................................. 10, 11, 12
14
Edmunds v. Atchison etc. Ry. Co.
15
(1917) 174 Cal. 246 .......................................................................................................................... 17
16
Elsworth v. Beech Aircraft Corp.
17
(1984) 37 Cal.3d 540 .......................................................................................................................... 8
18
Fennimore v. Regents of the University of California
19
(2016) 245 Cal.App.4th 1339 ........................................................................................................... 11
20 Firlotte v. Jessee
21 (1946) 76 Cal.App.2d 207 .................................................................................................................. 7
22 Fisk v. DMV
23 (1981) 127 Cal.App.3d 72 ................................................................................................................ 18
24 Haft v. Lone Palm Hotel
25 (1970) 3 Cal.3d 756 ........................................................................................................................ 8, 9
26 Hart v. National Mortgage & Land Co. (1987) Cal.App. 1420, 1432-33 ............................................ 11
27
3
28 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE FROM REFERENCING
ANY INVESTIGATIONS, CONCLUSIONS, DEFICIENCIES, CITATIONS OR PENALTIES (NEVARREZ)
[Motion in Limine No. 2 of 11]
1 Hartman v. Shell Oil Co.
2 (1997) 68 Cal.App.3d 240 ................................................................................................................ 11
3 Hasson v. Ford Motor Co.
4 (1982) 32 Cal.3d 388 .......................................................................................................................... 8
Hilliard v. A.H. Robins Co.
5
(1993) 148 Cal.App.3d 374 ...................................................................................................... 8, 9, 13
6
Hoch v. Allied Signal, Inc.
7
(1994) 24 Cal.App.4th 48 ................................................................................................................... 8
8
In re Romeo C.
9
(1995) 33 Cal.App.4th 1838 ............................................................................................................... 7
10
Isaacs v. Huntington Memorial Hosp.
11
(1985) 38 Cal.3d 112 .......................................................................................................................... 8
12
Jayayeri v. Mao
13
(2009) 174 Cal.App.4th 301 ....................................................................................................... 18, 19
14 Jordan v. Great Western Motorways
15 (1931) 213 Cal. 606 .......................................................................................................................... 22
16 Laird v. T.W. Mather, Inc.
17 (1958) 51 Cal.2d 210 .................................................................................................................... 8, 16
18 Levy-Zentner v. Southern Pac. Transp. Co.
19 (1977) 74 Cal.App.3d 762 ................................................................................................................ 23
20 Marron v. Superior Court
21 (2003) 108 Cal.App.4th 1049 ........................................................................................................... 11
22 Mulanda v. Dept. of Motor Vehicles
(2009) 172 Cal.App.4th 974 ............................................................................................................. 20
23
Nevarrez v. San Marino Skilled Nursing and Wellness Centre
24
(2013) 221 Cal.App.4th 102 ................................................................................................. 22, 23, 25
25
People v. Garceau
26
(1993) 6 Cal.4th 140 ........................................................................................................................... 7
27
4
28 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE FROM REFERENCING
ANY INVESTIGATIONS, CONCLUSIONS, DEFICIENCIES, CITATIONS OR PENALTIES (NEVARREZ)
[Motion in Limine No. 2 of 11]
1 People v. Garcia
2 (1972) 27 Cal.App.3d 639 ................................................................................................................ 22
3 People v. Gray
4 (2005) 37 Cal.4th 168 ....................................................................................................................... 14
People v. Gurule
5
(2002) 28 Cal.4th 557 ....................................................................................................................... 22
6
People v. Richards
7
(1976) 17 Cal.3d 614 ........................................................................................................................ 23
8
People v. Riel
9
(2000) 22 Cal.4th 1153 ..................................................................................................................... 23
10
People v. Roldan
11
(2005) 35 Cal.4th 646 ....................................................................................................................... 23
12
Pusateri v. E. F. Hutton & Co.
13
(1986) 180 Cal.App.3d 247 .............................................................................................................. 17
14 Taylor v. Centennial Bowl, Inc.
15 (1966) 65 Cal.2d 114 .................................................................................................................. 15, 16
16 Walter v. England
17 (1933) 133 Cal.App 676 ................................................................................................................... 22
18
Statutes
19 Civil Code § 3294(b) ........................................................................................................................ 8, 11
20 Evid. Code § 1222(b) ............................................................................................................................ 25
21 Evid. Code § 210....................................................................................................................... 1, 8, 9, 23
22 Evid. Code, § 1221................................................................................................................................ 24
23 Evid. Code, §§ 1220-1227 .................................................................................................................... 24
24 Evidence Code § 1101 .................................................................................................................... 15, 16
25 Evidence Code § 1101(b)................................................................................................................ 15, 16
26 Evidence Code § 1222 .......................................................................................................................... 25
27
5
28 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE FROM REFERENCING
ANY INVESTIGATIONS, CONCLUSIONS, DEFICIENCIES, CITATIONS OR PENALTIES (NEVARREZ)
[Motion in Limine No. 2 of 11]
1 Evidence Code § 1280 .................................................................................................................... 19, 21
2 Evidence Code § 352 ...................................................................................................................... 10, 14
3 H&S Code § 1569 ................................................................................................................................... 7
4 H&S Code § 1569.87 .............................................................................................................................. 7
Welf. & Inst. Code § 15657 ........................................................................................................ 8, 11, 12
5
Welf. & Inst. Code § 15657(c).......................................................................................................... 8, 11
6
Welf. & Inst. Code §15630(a)............................................................................................................... 20
7
8 Regulations
9 22 C.C.R. § 87411(a) ...................................................................................................................... 11, 15
Cal. Code of Regs. § 87100 .................................................................................................................... 7
10
Cal. Code of Regs. § 87730 .................................................................................................................... 7
11
12 Other Authorities
13 Wegner et al, Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2009) P 8:1049, p.
14 8D-B .................................................................................................................................................. 16
15
16
17
18
19
20
21
22
23
24
25
26
27
6
28 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE FROM REFERENCING
ANY INVESTIGATIONS, CONCLUSIONS, DEFICIENCIES, CITATIONS OR PENALTIES (NEVARREZ)
[Motion in Limine No. 2 of 11]
1 I. INTRODUCTION
2 Plaintiffs KELLIE TENNIER and RAYMOND DONAHUE, Individually and as Successors-
3 in-Interest to the Estate of THERESA DONAHUE (collectively “Plaintiffs”), respectfully submit the
4 following opposition to the motion in limine of defendants MBK SENIOR LIVING LLC, MBK
5 REAL ESTATE LLC, MUIRWOODS MSL LLC, MSL COMMUNITY MANAGEMENT LLC and
6 MUIRWOODS MEMORY CARE (collectively “Defendants”) to preclude Plaintiffs, their attorneys,
7 and their witnesses from referencing any Department of Social Services (DSS) investigation,
8 conclusion, deficiencies, citations, or penalties [Motion in Limine No. 2 of 11].
9 II. EVIDENCE OF INVESTIGATIONS, CONCLUSIONS, DEFICIENCIES, CITATIONS
AND PENALTIES ISSUED BY DSS AGAINST DEFENDANTS REGARDING OTHER
10 RESIDENTS IS HIGHLY RELEVANT TO THE ISSUES OF NOTICE,
RECKLESSNESS AND RATIFICATION
11
12 The DSS oversees the licensing and certification for Residential Care Facilities for the Elderly
13 (“RCFEs”) within California. Defendants must submit to annual and other inspections by the DSS
14 and operate in compliance with the governing federal and state regulations, primarily contained in §§
15 1569 through § 1569.87 of the Health & Safety Code and §§ 87100 through 87730 of Title 22 of the
16 California Code of Regulations, which set the standard of care for RCFEs. The DSS Surveyors
17 conduct annual inspections and perform “complaint investigations” when they receive complaints
18 about facility operations from consumers. If the DSS Surveyor finds that the facility has operated in
19 violation of a regulation, the surveyor issues a deficiency. Findings, including deficiencies identified,
20 are compiled on a form, entitled “Facility Evaluation Report,” which is submitted to the facility
21 administrator or other authorized managing agent. The DSS requires that the facility then correct its
22 deficient practices by submitting a “Plan of Correction” which identifies what steps the facility has
23 implemented or will implement to correct the regulatory violations. Also, the DSS issues “Citations”
24 during annual certification visits, complaint investigations, or special incident investigations for
25 violations of state or federal regulations. Citations vary in severity, carry fines ranging from $100 to
26 $100,000, and also require a Plan of Correction delineating how the facility is correcting the deficient
27
7
28 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE FROM REFERENCING
ANY INVESTIGATIONS, CONCLUSIONS, DEFICIENCIES, CITATIONS OR PENALTIES (NEVARREZ)
[Motion in Limine No. 2 of 11]
1 or unlawful practice.
2 All of these documents (annual surveys, facility evaluation reports, statements of deficiencies,
3 plans of correction, and citations) are public record, available for inspection at the DSS offices on
4 demand by anyone, and constitute a known “track record” of a facility’s violations of the regulations
5 administered and enforced by the DSS. These records are compiled in summary form and published
on the Internet by DSS for use in evaluating RCFEs, and are commonly used by experts in RCFE
6
administration to evaluate the management of RCFEs. As discussed below, these DSS records are
7
highly relevant and given great weight by the courts.
8
The definition of relevance under the Evidence Code is any evidence “having any tendency in
9
reason to prove or disprove any disputed fact that is of consequence to the determination of the
10
action.” (Evid. Code § 210; see also, e.g., People v. Garceau (1993) 6 Cal.4th 140, 177 [“the test of
11
relevance is whether the evidence tends ‘logically, naturally, and by reasonable inference’ to establish
12
material facts such as identity, intent, or motive”]; In re Romeo C. (1995) 33 Cal.App.4th 1838, 1843
13
[“evidence is relevant when no matter how weak it is it tends to prove a disputed issue”]; Firlotte v.
14
Jessee (1946) 76 Cal.App.2d 207, 210 [“evidence is relevant not only when it tends to prove or
15 disprove the precise fact in issue, but when it tends to establish a fact from which the existence or
16 nonexistence of the fact in issue can be directly inferred”].)
17 For an elder neglect cause of action such as the one brought by Plaintiffs here, Welfare &
18 Institutions Code § 15657 requires that Plaintiffs prove – by clear and convincing evidence – that
19 Defendants were guilty of “recklessness, oppression… or malice” in order to obtain the enhanced
20 remedies under the Elder Abuse Act (attorney’s fees and costs and non-MICRA capped general
21 damages). Moreover, Welfare and Institutions Code § 15657(c) requires Plaintiffs to meet the
22 requirements of Civil Code § 3294(b), which are set forth as follows:
23 An employer shall not be liable for damages pursuant to subdivision (a), based upon
acts of an employee of the employer, unless the employer had advance knowledge of
24 the unfitness of the employee and employed him or her with conscious disregard of the
rights or safety of others or authorized or ratified the wrongful conduct for which the
25 damages are awarded or was personally guilty of oppression, fraud or malice. With
respect to a corporate employer the advance knowledge and conscious disregard,
26 authorization, ratification or act of oppression, fraud or malice must be on the part of an
officer, director, or managing agent of the corporation. (Id., emphasis added.)
27
8
28 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE FROM REFERENCING
ANY INVESTIGATIONS, CONCLUSIONS, DEFICIENCIES, CITATIONS OR PENALTIES (NEVARREZ)
[Motion in Limine No. 2 of 11]
1
Thus, Plaintiffs must show that Defendants’ managing agents had advance knowledge and
2
consciously disregarded the risks associated with providing substandard care at MuirWoods. To
3
establish conscious disregard, a plaintiff must show that a defendant was aware of the probable
4
dangerous consequences of his conduct, and that he willfully failed to avoid those consequences.
5 (Hoch v. Allied Signal, Inc. (1994) 24 Cal.App.4th 48, 61.) Awareness of dangerous consequences or
6 that injury would likely result from conduct is essentially “knowledge.” Thus, evidence of
7 Defendants’ prior DSS citations, statement of deficiencies and plans of correction are evidence that
8 Defendants had knowledge of the dangerous conditions and potential consequences of their failure to
9 provide proper staffing or custodial care and knowledge of the severity of injury that would likely
10 result from failing to do so.
11 Numerous cases have permitted such prior act evidence to show knowledge and notice,
12 recklessness and ratification. (See, e.g., Isaacs v. Huntington Memorial Hosp. (1985) 38 Cal.3d
13 112,132 [allowing jury to hear of prior incidents of assault and theft in a hospital parking lot as
14 relevant to facility's liability for failing to secure the lot in the face of notice of a dangerous
condition]; Elsworth v. Beech Aircraft Corp. (1984) 37 Cal.3d 540 [allowing evidence of 20 other
15
accidents involving Beech aircraft to show notice]; Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388,
16
404 [evidence of other incidents of brake failures in products liability action properly admitted to
17
show Ford’s notice and knowledge]; Haft v. Lone Palm Hotel (1970) 3 Cal.3d 756, 778-80 [court’s
18
refusal to allow evidence of defendant's violation of rules uncovered in safety inspections to show
19
notice was error]; Laird v. T.W. Mather, Inc. (1958) 51 Cal.2d 210, 219 [evidence of a complaint that
20
someone had almost fallen down stairway in question relevant to establishing landlord’s notice of
21
dangerous condition]; Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 987-88
22
[evidence of a male employee’s past sexual harassment of other female employees relevant to show
23 the employer’s knowledge and failure to take corrective action and as to an award of punitive
24 damages]; Hilliard v. A.H. Robins Co. (1993) 148 Cal.App.3d 374, 399 [“evidence of death and
25 septic abortions caused to Dalkon Shield users is relevant because it has a tendency in reason to prove
26 that defendant was aware of the probable dangerous consequences of their plastic IUD”].)
27
9
28 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE FROM REFERENCING
ANY INVESTIGATIONS, CONCLUSIONS, DEFICIENCIES, CITATIONS OR PENALTIES (NEVARREZ)
[Motion in Limine No. 2 of 11]
1 In Hilliard, the plaintiff suffered injuries as a result of using defendant's Dalkon Shield IUD.
2 The Court of Appeal found that the trial court had erred in rejecting plaintiff's proffered evidence, on
3 the issue of punitive damages, of injuries to others caused by the Dalkon Shield, specifically, septic
4 abortions and death. "The excluded evidence was in each situation relevant evidence of death and
septic abortions caused to Dalkon Shield users is relevant because it had a tendency in reason to
5
prove that defendant was aware of the probable dangerous consequences of their plastic IUD." (Id. at
6
399.) The Appellate Court additionally ruled that it was prejudicial error and an abuse of discretion
7
for the trial court to exclude the evidence of injuries to others based upon Evidence Code § 352. (Id.
8
at 387-88, 397-401.) The Hilliard Court explained the relevance of defendant's conduct
9
both before and after the injury affecting plaintiff as follows:
10
In proving that defendant Robins acted in conscious disregard of the safety of others,
11 plaintiff Hilliard was not limited to Robins' conduct and activities that directly caused
her injuries. The conscious disregard concept of malice does not limit an inquiry into
12 the effect of the conduct and activities of the defendant on the plaintiff, the inquiry is
directed at and is concerned with defendant's conduct affecting the safety of others.
13 Any evidence that directly or indirectly shows or permits an inference that
defendant acted with conscious disregard of the safety or rights of others, that
14 defendant was aware of the probable dangerous consequence of defendant's
conduct and/or that defendant willfully and deliberately failed to avoid these
15 consequences is relevant evidence. (Id. at 401, emphasis added.)
16
The Haft case is also particularly instructive. (Haft, 3 Cal.3d at 778-80.) Haft involved the
17
drowning death of a father and five-year-old son. The California Supreme Court found that the trial
18
court had committed prejudicial error by refusing to admit prior county Health Department inspection
19
reports of defendants' swimming pool. The Court found that the inspection reports of other safety
20 violations were relevant for the purpose of showing “willful or wanton” conduct:
21
As plaintiffs suggest, the concept of “willful and wanton misconduct” often involves
22 an evaluation of the state of mind of the defendant; evidence that the defendant
actually knew that he was violating a safety regulation, or in this case numerous
23 safety regulations, is surely relevant, though not indispensable, to prove the gross
culpability of “willful and wanton” conduct. Moreover, evidence that such knowing
24 violation continued over a considerable period of time, without any excuse, would
also be relevant to establishing “willful and wanton misconduct.” … The evidence
25 should have been admitted. (Id. at 756, 778-779, emphasis added)
26 Again, as a precondition to recovery of enhanced remedies for Defendants’ actionable elder
27
10
28 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE FROM REFERENCING
ANY INVESTIGATIONS, CONCLUSIONS, DEFICIENCIES, CITATIONS OR PENALTIES (NEVARREZ)
[Motion in Limine No. 2 of 11]
1 neglect, Welfare & Institutions Code § 15657(c) requires Plaintiffs to meet the requirements of Civil
2 Code § 3294(b), i.e., ratification of the wrongful conduct by a managing agent. As the California
3 Supreme Court noted in College Hospital v. Superior Court (1994) 8 Cal.4th 704, 726, this issue
4 “commonly arises where the employer or its managing agent is charged with failing to intercede in a
known pattern of workplace abuse or failing to investigate or discipline the errant employee once
5
such misconduct became known.” That is exactly the situation here.
6
For example, prior to Ms. Donahue’s admission to the Facility, Defendants were cited multiple
7
times by DSS due to Defendants’ lack of adequate and trained staff at the Facility and Defendant’s
8
failure to maintain a safe and clean environment for residents at the MuirWoods. Specifically, on
9
December 3, 2018, Defendants were cited under 22 C.C.R. § 87411(a) regarding personnel
10
requirements after Facility staff were unable to perform a lift assist on a resident who suffered a fall.
11
At the time of the incident, there were only three staff on duty, and the staff had to call emergency
12
services to help them lift the resident off the floor. DSS found the Facility “failed to ensure that staff
13
was competent to provide services necessary to meet resident’s need.” Defendants have also been
14
previously cited for failure to ensure the Facility was clean, safe, and sanitary. For example, ,any
15
residents’ bathrooms were found to be dirty, and the DSS Licensing Program Analyst (LPA) observed
16
toilets that were not flushed and toilet seats with dry feces. These deficiencies were provided to and
17
reviewed by Defendants’ managing agents, including Executive Director Jamie Gruland, as well as
18
Regional Vice President Pamela Hardesty. Moreover, other RCFEs owned and operated by
19
Defendants, including MuirWoods, had a history of investigations, incident reports, and deficiencies
20
and/or citations issued to them by DSS involving inadequate supervision and assistance to residents,
21
resident falls, failure to maintain a clean and safe environment, inadequately trained staff, and
22
violations of residents’ rights prior to Ms. Donahue’s falls at Defendants’ Facility. Again, this shows
23
that Defendants and their managing agents knew of this pattern of poor care at their facilities,
24
including MuirWoods, and yet failed to make changes prior to Ms. Donahue’s admission and falls at
25
Defendants’ Facility.
26
27
11
28 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE FROM REFERENCING
ANY INVESTIGATIONS, CONCLUSIONS, DEFICIENCIES, CITATIONS OR PENALTIES (NEVARREZ)
[Motion in Limine No. 2 of 11]
1 Notably, reckless conduct under the Elder Abuse Act can be shown through evidence tending
2 to demonstrate that the defendant had notice of deficient practices and that they ratified these
3 deficiencies by allowing them to continue. (Welf. & Inst. Code § 15657; Carter v. Prime Healthcare
4 Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-07.) Since there will seldom be explicit
5 evidence of ratification, courts encourage plaintiffs to rely on circumstantial evidence. (Hartman v.
6 Shell Oil Co. (1997) 68 Cal.App.3d 240, 248-49.) Courts have specifically held, both inside and
7 outside of the elder/dependent adult abuse context, that notice and ratification can be shown through
8 evidence outside of the particular acts perpetrated against the plaintiff. (See, e.g., Marron v. Superior
9 Court (2003) 108 Cal.App.4th 1049, 1054; Coats v. Construction and General Laborers Local no.
10 185, et al. (1971) Cal.App.3d 908, 911.) Again, as the California Supreme Court noted in College
11 Hospital, 8 Cal.4th at 726, the issue of notice and ratification “commonly arises where the employer
12 or its managing agent is charged with failing to intercede in a known pattern of workplace abuse or
13 failing to investigate or discipline the errant employee once such misconduct became known.” (See
14 also Hart v. National Mortgage & Land Co. (1987) Cal.App. 1420, 1432-33.) In the elder abuse
15 context in particular, courts have found that recklessness based on notice and ratification can be found
16 where there is evidence that defendants engaged in a pattern and practice of violating regulations:
17 If a jury were to find the Hospital knew of the staffing regulations, violated them, and
had a significant pattern of doing so, it could infer recklessness, i.e., a ‘conscious
18 choice of a course of action…with knowledge of the serious danger to others involved
in it.’ (Delaney, supra, 20 Cal.4th at pp. 31-31, 82 Cal.Rptr.2d 610, 971 P.2d 986.) ….
19 A jury may see knowingly flouting staffing regulations as part of a pattern and
practice to cut costs, thereby endangering the facility’s elder and dependent patients,
20 as qualitatively different than simple negligence. (Fennimore v. Regents of the
University of California (2016) 245 Cal.App.4th 1339, 1350, emphasis added.)
21
Here, Plaintiffs seek to introduce evidence relating to the DSS complaints to establish that
22
Defendants had notice of these deficiencies within their Facility and ratified these deficiencies by
23
allowing them to continue. Fenimore makes it clear that this evidence is admissible for the
24
purposes of establishing that Defendants were “knowingly flouting” regulations “as part of a
25 pattern and practice to cut costs.” (Id. at 1350, emphasis added.) Thus, evidence that Defendants
26 and their managing agents were aware of prior findings of deficiency by the DSS, and yet failed to
27
12
28 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE FROM REFERENCING
ANY INVESTIGATIONS, CONCLUSIONS, DEFICIENCIES, CITATIONS OR PENALTIES (NEVARREZ)
[Motion in Limine No. 2 of 11]
1 heed or correct such problems, is relevant because it indicates Defendants’ deliberate disregard of the
2 high degree of probability that harm will result, i.e., that Defendants were reckless. DSS documents are
3 also highly relevant because they will tend to demonstrate that despite notice of the Facility's
4 deficiencies and despite Defendants’ plans of correction, Defendants and their managing agents ratified
the wrongdoing by allowing the problems to persist up to and including on August 31, 2021, when the
5
Facility was again cited for insufficient staffing. The documents will demonstrate Defendants’ ongoing
6
failures to take steps to prepare and keep residents safe, supervised and protected from avoidable
7
health and safety hazards at the Facility and, under the express language of College Hospital, they are
8
proper and admissible evidence of employer recklessness.
9
The DSS information is therefore admissible to demonstrate that Defendants were aware of the
10
problems within their Facility and consciously disregarded the known risks by allowing them to
11
persist, despite institution of plans of corrections to resolve state identified deficiencies. Moreover,
12
the fact that Defendants allowed such issues to continue throughout Plaintiff’s residency and
13
following her residency, as may be exemplified in subsequent annual surveys, will aid in proving
14
conscious disregard of the known risks and ratification. Prior incident evidence of the kind set forth
15
in DSS records is routinely admitted to demonstrate a defendant's knowledge, notice, recklessness and
16
ratification. This is especially the case where, as here, Plaintiffs bear the burden of showing that
17
Defendants exhibited a conscious disregard toward the safety of Ms. Donahue at the Facility.
18
Because the information that Defendants seek to exclude via their Motion in Limine No. 2 is
19
highly relevant to the issues in this case, Plaintiffs, their attorneys, and their witnesses should not be
20
precluded from referencing this information at trial.
21
III. DSS FINDINGS UNRELATED TO MS. DONAHUE ARE NOT UNDULY
22 PREJUDICIAL, WOULD NOT REQUIRE AN UNDUE CONSUMPTION OF TIME,
AND ARE NOT INADMISSIBLE CHARACTER EVIDENCE
23
24 As set forth herein, the DSS documents regarding the care and treatment of residents at
25 Defendants’ Facility before and after Ms. Donahue’s residency speak directly to disputed facts of
26 consequence in the determination of this action – whether Defendants were reckless and whether the
27
13
28 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE FROM REFERENCING
ANY INVESTIGATIONS, CONCLUSIONS, DEFICIENCIES, CITATIONS OR PENALTIES (NEVARREZ)
[Motion in Limine No. 2 of 11]
1 reckless conduct was committed by or ratified by Defendants’ managing agents. Therefore, the
2 probative value of the DSS records far outweighs any possible prejudicial effect. Evidence Code
3 §352 provides:
4 The Court in its discretion may exclude evidence if its probative value is substantially
outweighed by the probability that its admission will…(b) create substantial danger of
5 undue prejudice, or confusing the issues or of misleading the jury.
6 As noted above, Defendants’ history of repeated DSS violations at the Facility goes to the
7 very heart of this case. Any possible prejudice cannot possibly outweigh the probative value.
8 Moreover, the prejudice that Evidence Code § 352 is designed to avoid is not the prejudice or damage
9 to a party that naturally flows from relevant, highly probative evidence. Rather, the statute uses the
10 word in its etymological sense of “prejudging” a person or cause on the basis of extraneous factors.
11 Evidence should be excluded as unduly prejudicial only when it is of such a nature as to inflame the
12 emotions of the trier of fact, motivating them to use the information, not to logically evaluate the
13 point on which it is relevant, but to reward or punish one side because of the factfinder’s emotional
14 reaction.
15 Thus, the testimony at issue regarding repeated violations of the law may result in the type of
16 prejudice or damage to party that naturally flows from relevant, highly probative evidence. However,
17 that does not make the evidence unduly prejudicial under Evidence Code § 352. The bottom line is
18 that evidence of prior regulatory violations is routinely and properly admitted in litigation to prove
19 notice, recklessness and ratification where, as here, such showing is relevant to Plaintiffs’ burden of
20 proof. Indeed, such evidence is highly probative to show Defendants were aware of the systemic
21 problems that existed at their Facility and yet they failed to do anything to remedy those problems.
22 (See Hilliard, 148 Cal.App.3d at 387-38, 397-401 [where the Court ruled that it was prejudicial error
23 and an abuse of discretion for the trial court to exclude other incident evidence based upon Evidence
24 Code § 352].) Thus, Defendants’ Evidence Code § 352 arguments to preclude this evidence simply
25 fail.
26 Defendants also claim that they will need to unduly consume time to contest the validity of
27
14
28 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE FROM REFERENCING
ANY INVESTIGATIONS, CONCLUSIONS, DEFICIENCIES, CITATIONS OR PENALTIES (NEVARREZ)
[Motion in Limine No. 2 of 11]
1 their other violations because “defendants would have to try multiple cases within a case to address
2 the facts and circumstances in the other incidents involving other residents.” However, the
3 information is not being offered for the truth of the matter asserted. All of the DSS documents
4 discussed herein are being offered for the non-truth purpose of showing Defendants’ advance
5 knowledge of the regulatory violations they received (whether they contested them with the DSS or
6 not) and that they were on notice of statements being made in response by Defendants’ managing
7 agents. Thus, for example, when DSS cited Defendants in 2018 under 22 C.C.R. § 87411(a) after
8 Facility staff were unable to perform a lift assist on a resident who suffered a fall, this information
9 shows that Defendants were aware of this allegation and on notice that they needed to address the
10 issue of insufficient staffing – relating to falls in particular – at their Facility. Moreover, Defendants
11 have never produced any information that they contested any of these violations at any point in time
12 as part of discovery, and should be precluded from doing so now.
13 Lastly, contrary to Defendants’ assertions, the DSS evidence is also not “inadmissible
14 character evidence” pursuant to Evidence Code § 1101. While character evidence is inadmissible to
15 prove conformity with a character trait on a specific occasion, evidence that a person committed a
16 civil wrong is admissible when offered to prove some fact other than his or her disposition to commit
17 such acts. Evidence Code § 1101(b) provides:
18 Nothing in this section prohibits the admission of evidence that a person
committed a crime, civil wrong, or other act when relevant to prove some fact
19 (such as motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake or accident…. (Id., emphasis added.)
20
21 Thus, evidence of a prior wrongful act is admissible to prove knowledge or notice as an
22 element of a cause of action or an element of a crime. In fact, introduction of prior act evidence to
23 show notice and knowledge under Evidence Code § 1101(b) evidence is common place. It has been
24 sanctioned in scores of California cases, and often in serious criminal cases where, in contrast to the
parties here, the defendants faced long-term incarceration or even death. (See, e.g., People v. Gray
25
(2005) 37 Cal.4th 168, 202 [admitting Evidence Code §1101(b) evidence in death penalty case].
26
27
15
28 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE FROM REFERENCING
ANY INVESTIGATIONS, CONCLUSIONS, DEFICIENCIES, CITATIONS OR PENALTIES (NEVARREZ)
[Motion in Limine No. 2 of 11]
1 Again, in the present case, the DSS annual records, citations, statements of deficiencies, and
2 plans of correction demonstrate that Defendants consciously disregarded prior notice or knowledge of
3 issues in their Facility because the same problems contained therein continued to occur at
4 Defendants’ Facility and resulted in injury to Ms. Donahue. According to Evidence Code § 1101(b),
5 evidence of prior civil wrongs is in fact admissible to prove the fact of knowledge. The proffered
6 evidence here will establish just that – that Defendants had prior knowledge that injuries would result
7 from their substandard Facility conditions and reckless care and treatment of their residents. Thus,
8 evidence of the DSS information in this is not “inadmissible character evidence.”
9 IV. EVIDENCE OF DSS FINDINGS UNRELATED TO MS. DONAHUE DO NOT
CONSTITUTE INADMISSIBLE HEARSAY
10
11 Defendants also argue that evidence regarding DSS findings unrelated to Ms. Donahue
12 contain hearsay statements that are inadmissible is without merit. Such evidence is not hearsay, both
13 because it is not offered for the truth of the matter asserted and because it tends to establish an
14 “operative fact” – e.g., that Defendants were aware of serious health and safety problems at their
15 Facility but failed to act to address these serious concerns.
16 An out of court statement is not hearsay if offered to show the effect on the hearer, reader, or
17 viewer rather than to prove the truth of the content of the statement. (Wegner et al, Cal. Practice
18 Guide: Civil Trials and Evidence (The Rutter Group 2009) P 8:1049, p. 8D-B.) Such statements are
19 properly admitted for a relevant non-hearsay purpose if used to show warning, admonition, or notice.
(Caro v. Smith (1997) 59 Cal.App.4th 725, 733; see also Taylor v. Centennial Bowl, Inc. (1966) 65
20
Cal.2d 114, 125.)
21
All of the DSS documents discussed herein are admissible for the non-truth purpose of
22
showing Defendants’ advance knowledge of the regulatory violations occurring at their Facility, i.e.,
23
that Defendants were on notice of the violations and were on notice of statements being made in
24
response by Defendants’ managing agents. Therefore, evidence of the DSS citations and regulatory
25
violations is not hearsay both because it is not offered for the truth of the matter asserted and because
26
it tends to establish an "operative fact" - e.g., that Defendants were aware of the substandard care
27
16
28 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE FROM REFERENCING
ANY INVESTIGATIONS, CONCLUSIONS, DEFICIENCIES, CITATIONS OR PENALTIES (NEVARREZ)
[Motion in Limine No. 2 of 11]
1 being provided at Skyline, but failed to act. (See Bihun v. AT & T Information Systems, Inc. (1993) 13
2 Cal.App.4th 976, 988 [sexual harassment case disapproved on unrelated grounds, Lakin v. Watkins
3 Assoc. Industries (1993) 6 Cal.4th 644].)
4 As the Court explained in Bihun:
5 The challenged evidence was not admitted to prove the truth of the matters asserted,
e.g., that Fellows was maintaining a "love nest" with his executive assistant. The
6 jury was so instructed. Rather, the evidence was offered to show defendant had
knowledge of Fellow's reputation and the complaints about his conduct with female
7 employees but took no steps to investigate or discipline Fellows. As such, the
evidence was admissible as "operative facts" because it demonstrated an issue in
8 this case: defendant's knowledge of Fellow's behavior and complaints about that
behavior. As noted above, defendant itself made the question of knowledge an issue
9 on the question of liability. Furthermore, the issue of knowledge is relevant to the
award of punitive damages. (Id. at 988-89, emphasis added.)
10
11 As another example, in Taylor, the California Supreme Court held that evidence that the
12 defendant sought police assistance could be offered as evidence that disturbances had occurred and
13 that the defendant knew of them in order to show the defendant’s state of mind. (Taylor, 65 Cal.2d at
14 125.) The present case is analogous, as Plaintiffs intend to offer evidence of the DSS citations,
statements of deficiencies, and plans of correction (which again were signed and acknowledged as
15
being received by Defendants’ managing agents) as evidence that they were aware of the pattern of
16
neglect and failures in resident care at their Facility that resulted in the numerous violations issued to
17
them relating to resident safety. As stated above, a showing of Defendants’ knowledge of the
18
substandard conditions (and conscious disregard of the risks associated with such conditions) is
19
necessary to Plaintiffs’ claim for enhanced remedies under the Elder Abuse Act and for punitive
20
damages. Thus, the DSS documents are admissible to show that Defendants had knowledge of the
21
substandard treatment at their Facility and ratified the conduct by failing to remedy the deficiencies.
22
As another example, in Laird, 51 Cal.2d at 219-20, the California Supreme Court assessed a
23 former employee’s testimony that he had heard
Preview
1 KATHRYN A. STEBNER (SBN 121088) KARMAN GUADAGNI (SBN 267631) 2 DEENA ZACHARIN (SBN 141249) KELSEY CRAVEN (SBN 337179) 3 STEBNER GERTLER GUADAGNI & KAWAMOTO A PROFESSIONAL LAW CORPORATION 4 870 Market Street, Suite 1285 San Francisco, CA 94102 5 Tel: (415) 362-9800 Fax: (415) 362-9801 6 KIRSTEN FISH (SBN 217940) 7 NEEDHAM KEPNER & FISH LLP 1960 The Alameda, Suite 210 8 San Jose, CA 95126 Tel: (408) 244-2166 9 Fax: (408) 244-7815 10 Attorneys for Plaintiffs 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 IN AND FOR THE COUNTY OF SONOMA 13 KELLIE TENNIER and RAYMOND CASE NO. SCV-268130 14 DONAHUE, Individually and as Successors-in- Interest to the Estate of THERESA DONAHUE Assigned for All Purposes to: 15 Hon. Patrick M. Broderick, Dept. 16 Plaintiffs, 16 PLAINTIFFS’ OPPOSITION TO vs. DEFENDANTS’ MOTION IN LIMINE TO 17 PRECLUDE FROM REFERENCING ANY MBK SENIOR LIVING, LLC; MBK REAL ESTATE, LLC; MUIRWOODS MSL LLC; INVESTIGATIONS, CONCLUSIONS, 18 DEFICIENCIES, CITATIONS OR MSL COMMUNITY MANAGEMENT, LLC; 19 MUIRWOODS MEMORY CARE; and DOES PENALTIES (NEVARREZ) 1-75, Inclusive, [Motion in Limine No. 2 of 11] 20 Defendants. Date: July 14, 2023 21 Time: 8:30 a.m. Dept. 16 22 Judge: Hon. Patrick M. Broderick 23 JURY TRIAL DEMANDED 24 25 26 27 1 28 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE FROM REFERENCING ANY INVESTIGATIONS, CONCLUSIONS, DEFICIENCIES, CITATIONS OR PENALTIES (NEVARREZ) [Motion in Limine No. 2 of 11] 1 TABLE OF CONTENTS 2 I. INTRODUCTION ...................................................................................................................... 7 3 II. EVIDENCE OF INVESTIGATIONS, CONCLUSIONS, DEFICIENCIES, 4 CITATIONS AND PENALTIES ISSUED BY DSS AGAINST DEFENDANTS 5 REGARDING OTHER RESIDENTS IS HIGHLY RELEVANT TO THE ISSUES 6 OF NOTICE, RECKLESSNESS AND RATIFICATION ......................................................... 7 7 III. DSS FINDINGS UNRELATED TO MS. DONAHUE ARE NOT UNDULY 8 PREJUDICIAL, WOULD NOT REQUIRE AN UNDUE CONSUMPTION OF 9 TIME, AND ARE NOT INADMISSIBLE CHARACTER EVIDENCE ................................ 13 10 IV. EVIDENCE OF DSS FINDINGS UNRELATED TO MS. DONAHUE DO NOT 11 CONSTITUTE INADMISSIBLE HEARSAY ......................................................................... 16 12 V. EVEN IF THE DSS FINDINGS UNRELATED TO MS. DONAHUE WERE 13 CONSIDERED HEARSAY, THEY FALL WITHIN THE OFFICIAL RECORDS 14 EXCEPTION ............................................................................................................................ 19 15 A. The DSS Annual Surveys, Citations and Deficiencies were Made by Public Employees 16 Acting Within the Scope of their Duty as DSS Investigators. ...................................... 19 17 B. The DSS Annual Surveys, Citations and Deficiencies were Made Contemporaneous to 18 Defendants’ Failures ..................................................................................................... 20 19 C. The DSS Annual Surveys. Citations and Deficiencies are Based on Information that 20 Establishes that the Records are Trustworthy ............................................................... 21 21 VI. Limited Lay Opinion Based on A Witness' Perceptions Is Permissible ................................... 22 22 23 VII. DEFENDANTS’ REQUEST TO EXCLUDE ALL INFORMATION CONTAINED IN THE DSS DOCUMENTS REGARDING MS. DONAHUE IS 24 OVERBROAD.......................................................................................................................... 23 25 26 VIII. CONCLUSION ......................................................................................................................... 26 27 2 28 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE FROM REFERENCING ANY INVESTIGATIONS, CONCLUSIONS, DEFICIENCIES, CITATIONS OR PENALTIES (NEVARREZ) [Motion in Limine No. 2 of 11] 1 TABLE OF AUTHORITIES 2 Cases 3 Bihun v. AT&T Information Systems, Inc. 4 (1993) 13 Cal.App.4th 976 ........................................................................................................... 8, 16 5 Caro v. Smith 6 (1997) 59 Cal.App.4th 725 ............................................................................................................... 15 7 Carter v. Prime Healthcare Paradise Valley LLC 8 (2011) 198 Cal.App.4th 396 ............................................................................................................. 11 9 Coats v. Construction and General Laborers Local no. 185, et al. 10 (1971) Cal.App.3d 908 ............................................................................................................... 11, 17 Colarossi v. Coty US Inc. 11 (2002) 97 Cal.App.4th 1142 ............................................................................................................. 24 12 College Hospital v. Superior Court 13 (1994) 8 Cal.4th 704 ............................................................................................................. 10, 11, 12 14 Edmunds v. Atchison etc. Ry. Co. 15 (1917) 174 Cal. 246 .......................................................................................................................... 17 16 Elsworth v. Beech Aircraft Corp. 17 (1984) 37 Cal.3d 540 .......................................................................................................................... 8 18 Fennimore v. Regents of the University of California 19 (2016) 245 Cal.App.4th 1339 ........................................................................................................... 11 20 Firlotte v. Jessee 21 (1946) 76 Cal.App.2d 207 .................................................................................................................. 7 22 Fisk v. DMV 23 (1981) 127 Cal.App.3d 72 ................................................................................................................ 18 24 Haft v. Lone Palm Hotel 25 (1970) 3 Cal.3d 756 ........................................................................................................................ 8, 9 26 Hart v. National Mortgage & Land Co. (1987) Cal.App. 1420, 1432-33 ............................................ 11 27 3 28 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE FROM REFERENCING ANY INVESTIGATIONS, CONCLUSIONS, DEFICIENCIES, CITATIONS OR PENALTIES (NEVARREZ) [Motion in Limine No. 2 of 11] 1 Hartman v. Shell Oil Co. 2 (1997) 68 Cal.App.3d 240 ................................................................................................................ 11 3 Hasson v. Ford Motor Co. 4 (1982) 32 Cal.3d 388 .......................................................................................................................... 8 Hilliard v. A.H. Robins Co. 5 (1993) 148 Cal.App.3d 374 ...................................................................................................... 8, 9, 13 6 Hoch v. Allied Signal, Inc. 7 (1994) 24 Cal.App.4th 48 ................................................................................................................... 8 8 In re Romeo C. 9 (1995) 33 Cal.App.4th 1838 ............................................................................................................... 7 10 Isaacs v. Huntington Memorial Hosp. 11 (1985) 38 Cal.3d 112 .......................................................................................................................... 8 12 Jayayeri v. Mao 13 (2009) 174 Cal.App.4th 301 ....................................................................................................... 18, 19 14 Jordan v. Great Western Motorways 15 (1931) 213 Cal. 606 .......................................................................................................................... 22 16 Laird v. T.W. Mather, Inc. 17 (1958) 51 Cal.2d 210 .................................................................................................................... 8, 16 18 Levy-Zentner v. Southern Pac. Transp. Co. 19 (1977) 74 Cal.App.3d 762 ................................................................................................................ 23 20 Marron v. Superior Court 21 (2003) 108 Cal.App.4th 1049 ........................................................................................................... 11 22 Mulanda v. Dept. of Motor Vehicles (2009) 172 Cal.App.4th 974 ............................................................................................................. 20 23 Nevarrez v. San Marino Skilled Nursing and Wellness Centre 24 (2013) 221 Cal.App.4th 102 ................................................................................................. 22, 23, 25 25 People v. Garceau 26 (1993) 6 Cal.4th 140 ........................................................................................................................... 7 27 4 28 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE FROM REFERENCING ANY INVESTIGATIONS, CONCLUSIONS, DEFICIENCIES, CITATIONS OR PENALTIES (NEVARREZ) [Motion in Limine No. 2 of 11] 1 People v. Garcia 2 (1972) 27 Cal.App.3d 639 ................................................................................................................ 22 3 People v. Gray 4 (2005) 37 Cal.4th 168 ....................................................................................................................... 14 People v. Gurule 5 (2002) 28 Cal.4th 557 ....................................................................................................................... 22 6 People v. Richards 7 (1976) 17 Cal.3d 614 ........................................................................................................................ 23 8 People v. Riel 9 (2000) 22 Cal.4th 1153 ..................................................................................................................... 23 10 People v. Roldan 11 (2005) 35 Cal.4th 646 ....................................................................................................................... 23 12 Pusateri v. E. F. Hutton & Co. 13 (1986) 180 Cal.App.3d 247 .............................................................................................................. 17 14 Taylor v. Centennial Bowl, Inc. 15 (1966) 65 Cal.2d 114 .................................................................................................................. 15, 16 16 Walter v. England 17 (1933) 133 Cal.App 676 ................................................................................................................... 22 18 Statutes 19 Civil Code § 3294(b) ........................................................................................................................ 8, 11 20 Evid. Code § 1222(b) ............................................................................................................................ 25 21 Evid. Code § 210....................................................................................................................... 1, 8, 9, 23 22 Evid. Code, § 1221................................................................................................................................ 24 23 Evid. Code, §§ 1220-1227 .................................................................................................................... 24 24 Evidence Code § 1101 .................................................................................................................... 15, 16 25 Evidence Code § 1101(b)................................................................................................................ 15, 16 26 Evidence Code § 1222 .......................................................................................................................... 25 27 5 28 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE FROM REFERENCING ANY INVESTIGATIONS, CONCLUSIONS, DEFICIENCIES, CITATIONS OR PENALTIES (NEVARREZ) [Motion in Limine No. 2 of 11] 1 Evidence Code § 1280 .................................................................................................................... 19, 21 2 Evidence Code § 352 ...................................................................................................................... 10, 14 3 H&S Code § 1569 ................................................................................................................................... 7 4 H&S Code § 1569.87 .............................................................................................................................. 7 Welf. & Inst. Code § 15657 ........................................................................................................ 8, 11, 12 5 Welf. & Inst. Code § 15657(c).......................................................................................................... 8, 11 6 Welf. & Inst. Code §15630(a)............................................................................................................... 20 7 8 Regulations 9 22 C.C.R. § 87411(a) ...................................................................................................................... 11, 15 Cal. Code of Regs. § 87100 .................................................................................................................... 7 10 Cal. Code of Regs. § 87730 .................................................................................................................... 7 11 12 Other Authorities 13 Wegner et al, Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2009) P 8:1049, p. 14 8D-B .................................................................................................................................................. 16 15 16 17 18 19 20 21 22 23 24 25 26 27 6 28 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE FROM REFERENCING ANY INVESTIGATIONS, CONCLUSIONS, DEFICIENCIES, CITATIONS OR PENALTIES (NEVARREZ) [Motion in Limine No. 2 of 11] 1 I. INTRODUCTION 2 Plaintiffs KELLIE TENNIER and RAYMOND DONAHUE, Individually and as Successors- 3 in-Interest to the Estate of THERESA DONAHUE (collectively “Plaintiffs”), respectfully submit the 4 following opposition to the motion in limine of defendants MBK SENIOR LIVING LLC, MBK 5 REAL ESTATE LLC, MUIRWOODS MSL LLC, MSL COMMUNITY MANAGEMENT LLC and 6 MUIRWOODS MEMORY CARE (collectively “Defendants”) to preclude Plaintiffs, their attorneys, 7 and their witnesses from referencing any Department of Social Services (DSS) investigation, 8 conclusion, deficiencies, citations, or penalties [Motion in Limine No. 2 of 11]. 9 II. EVIDENCE OF INVESTIGATIONS, CONCLUSIONS, DEFICIENCIES, CITATIONS AND PENALTIES ISSUED BY DSS AGAINST DEFENDANTS REGARDING OTHER 10 RESIDENTS IS HIGHLY RELEVANT TO THE ISSUES OF NOTICE, RECKLESSNESS AND RATIFICATION 11 12 The DSS oversees the licensing and certification for Residential Care Facilities for the Elderly 13 (“RCFEs”) within California. Defendants must submit to annual and other inspections by the DSS 14 and operate in compliance with the governing federal and state regulations, primarily contained in §§ 15 1569 through § 1569.87 of the Health & Safety Code and §§ 87100 through 87730 of Title 22 of the 16 California Code of Regulations, which set the standard of care for RCFEs. The DSS Surveyors 17 conduct annual inspections and perform “complaint investigations” when they receive complaints 18 about facility operations from consumers. If the DSS Surveyor finds that the facility has operated in 19 violation of a regulation, the surveyor issues a deficiency. Findings, including deficiencies identified, 20 are compiled on a form, entitled “Facility Evaluation Report,” which is submitted to the facility 21 administrator or other authorized managing agent. The DSS requires that the facility then correct its 22 deficient practices by submitting a “Plan of Correction” which identifies what steps the facility has 23 implemented or will implement to correct the regulatory violations. Also, the DSS issues “Citations” 24 during annual certification visits, complaint investigations, or special incident investigations for 25 violations of state or federal regulations. Citations vary in severity, carry fines ranging from $100 to 26 $100,000, and also require a Plan of Correction delineating how the facility is correcting the deficient 27 7 28 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE FROM REFERENCING ANY INVESTIGATIONS, CONCLUSIONS, DEFICIENCIES, CITATIONS OR PENALTIES (NEVARREZ) [Motion in Limine No. 2 of 11] 1 or unlawful practice. 2 All of these documents (annual surveys, facility evaluation reports, statements of deficiencies, 3 plans of correction, and citations) are public record, available for inspection at the DSS offices on 4 demand by anyone, and constitute a known “track record” of a facility’s violations of the regulations 5 administered and enforced by the DSS. These records are compiled in summary form and published on the Internet by DSS for use in evaluating RCFEs, and are commonly used by experts in RCFE 6 administration to evaluate the management of RCFEs. As discussed below, these DSS records are 7 highly relevant and given great weight by the courts. 8 The definition of relevance under the Evidence Code is any evidence “having any tendency in 9 reason to prove or disprove any disputed fact that is of consequence to the determination of the 10 action.” (Evid. Code § 210; see also, e.g., People v. Garceau (1993) 6 Cal.4th 140, 177 [“the test of 11 relevance is whether the evidence tends ‘logically, naturally, and by reasonable inference’ to establish 12 material facts such as identity, intent, or motive”]; In re Romeo C. (1995) 33 Cal.App.4th 1838, 1843 13 [“evidence is relevant when no matter how weak it is it tends to prove a disputed issue”]; Firlotte v. 14 Jessee (1946) 76 Cal.App.2d 207, 210 [“evidence is relevant not only when it tends to prove or 15 disprove the precise fact in issue, but when it tends to establish a fact from which the existence or 16 nonexistence of the fact in issue can be directly inferred”].) 17 For an elder neglect cause of action such as the one brought by Plaintiffs here, Welfare & 18 Institutions Code § 15657 requires that Plaintiffs prove – by clear and convincing evidence – that 19 Defendants were guilty of “recklessness, oppression… or malice” in order to obtain the enhanced 20 remedies under the Elder Abuse Act (attorney’s fees and costs and non-MICRA capped general 21 damages). Moreover, Welfare and Institutions Code § 15657(c) requires Plaintiffs to meet the 22 requirements of Civil Code § 3294(b), which are set forth as follows: 23 An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of 24 the unfitness of the employee and employed him or her with conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the 25 damages are awarded or was personally guilty of oppression, fraud or malice. With respect to a corporate employer the advance knowledge and conscious disregard, 26 authorization, ratification or act of oppression, fraud or malice must be on the part of an officer, director, or managing agent of the corporation. (Id., emphasis added.) 27 8 28 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE FROM REFERENCING ANY INVESTIGATIONS, CONCLUSIONS, DEFICIENCIES, CITATIONS OR PENALTIES (NEVARREZ) [Motion in Limine No. 2 of 11] 1 Thus, Plaintiffs must show that Defendants’ managing agents had advance knowledge and 2 consciously disregarded the risks associated with providing substandard care at MuirWoods. To 3 establish conscious disregard, a plaintiff must show that a defendant was aware of the probable 4 dangerous consequences of his conduct, and that he willfully failed to avoid those consequences. 5 (Hoch v. Allied Signal, Inc. (1994) 24 Cal.App.4th 48, 61.) Awareness of dangerous consequences or 6 that injury would likely result from conduct is essentially “knowledge.” Thus, evidence of 7 Defendants’ prior DSS citations, statement of deficiencies and plans of correction are evidence that 8 Defendants had knowledge of the dangerous conditions and potential consequences of their failure to 9 provide proper staffing or custodial care and knowledge of the severity of injury that would likely 10 result from failing to do so. 11 Numerous cases have permitted such prior act evidence to show knowledge and notice, 12 recklessness and ratification. (See, e.g., Isaacs v. Huntington Memorial Hosp. (1985) 38 Cal.3d 13 112,132 [allowing jury to hear of prior incidents of assault and theft in a hospital parking lot as 14 relevant to facility's liability for failing to secure the lot in the face of notice of a dangerous condition]; Elsworth v. Beech Aircraft Corp. (1984) 37 Cal.3d 540 [allowing evidence of 20 other 15 accidents involving Beech aircraft to show notice]; Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 16 404 [evidence of other incidents of brake failures in products liability action properly admitted to 17 show Ford’s notice and knowledge]; Haft v. Lone Palm Hotel (1970) 3 Cal.3d 756, 778-80 [court’s 18 refusal to allow evidence of defendant's violation of rules uncovered in safety inspections to show 19 notice was error]; Laird v. T.W. Mather, Inc. (1958) 51 Cal.2d 210, 219 [evidence of a complaint that 20 someone had almost fallen down stairway in question relevant to establishing landlord’s notice of 21 dangerous condition]; Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 987-88 22 [evidence of a male employee’s past sexual harassment of other female employees relevant to show 23 the employer’s knowledge and failure to take corrective action and as to an award of punitive 24 damages]; Hilliard v. A.H. Robins Co. (1993) 148 Cal.App.3d 374, 399 [“evidence of death and 25 septic abortions caused to Dalkon Shield users is relevant because it has a tendency in reason to prove 26 that defendant was aware of the probable dangerous consequences of their plastic IUD”].) 27 9 28 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE FROM REFERENCING ANY INVESTIGATIONS, CONCLUSIONS, DEFICIENCIES, CITATIONS OR PENALTIES (NEVARREZ) [Motion in Limine No. 2 of 11] 1 In Hilliard, the plaintiff suffered injuries as a result of using defendant's Dalkon Shield IUD. 2 The Court of Appeal found that the trial court had erred in rejecting plaintiff's proffered evidence, on 3 the issue of punitive damages, of injuries to others caused by the Dalkon Shield, specifically, septic 4 abortions and death. "The excluded evidence was in each situation relevant evidence of death and septic abortions caused to Dalkon Shield users is relevant because it had a tendency in reason to 5 prove that defendant was aware of the probable dangerous consequences of their plastic IUD." (Id. at 6 399.) The Appellate Court additionally ruled that it was prejudicial error and an abuse of discretion 7 for the trial court to exclude the evidence of injuries to others based upon Evidence Code § 352. (Id. 8 at 387-88, 397-401.) The Hilliard Court explained the relevance of defendant's conduct 9 both before and after the injury affecting plaintiff as follows: 10 In proving that defendant Robins acted in conscious disregard of the safety of others, 11 plaintiff Hilliard was not limited to Robins' conduct and activities that directly caused her injuries. The conscious disregard concept of malice does not limit an inquiry into 12 the effect of the conduct and activities of the defendant on the plaintiff, the inquiry is directed at and is concerned with defendant's conduct affecting the safety of others. 13 Any evidence that directly or indirectly shows or permits an inference that defendant acted with conscious disregard of the safety or rights of others, that 14 defendant was aware of the probable dangerous consequence of defendant's conduct and/or that defendant willfully and deliberately failed to avoid these 15 consequences is relevant evidence. (Id. at 401, emphasis added.) 16 The Haft case is also particularly instructive. (Haft, 3 Cal.3d at 778-80.) Haft involved the 17 drowning death of a father and five-year-old son. The California Supreme Court found that the trial 18 court had committed prejudicial error by refusing to admit prior county Health Department inspection 19 reports of defendants' swimming pool. The Court found that the inspection reports of other safety 20 violations were relevant for the purpose of showing “willful or wanton” conduct: 21 As plaintiffs suggest, the concept of “willful and wanton misconduct” often involves 22 an evaluation of the state of mind of the defendant; evidence that the defendant actually knew that he was violating a safety regulation, or in this case numerous 23 safety regulations, is surely relevant, though not indispensable, to prove the gross culpability of “willful and wanton” conduct. Moreover, evidence that such knowing 24 violation continued over a considerable period of time, without any excuse, would also be relevant to establishing “willful and wanton misconduct.” … The evidence 25 should have been admitted. (Id. at 756, 778-779, emphasis added) 26 Again, as a precondition to recovery of enhanced remedies for Defendants’ actionable elder 27 10 28 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE FROM REFERENCING ANY INVESTIGATIONS, CONCLUSIONS, DEFICIENCIES, CITATIONS OR PENALTIES (NEVARREZ) [Motion in Limine No. 2 of 11] 1 neglect, Welfare & Institutions Code § 15657(c) requires Plaintiffs to meet the requirements of Civil 2 Code § 3294(b), i.e., ratification of the wrongful conduct by a managing agent. As the California 3 Supreme Court noted in College Hospital v. Superior Court (1994) 8 Cal.4th 704, 726, this issue 4 “commonly arises where the employer or its managing agent is charged with failing to intercede in a known pattern of workplace abuse or failing to investigate or discipline the errant employee once 5 such misconduct became known.” That is exactly the situation here. 6 For example, prior to Ms. Donahue’s admission to the Facility, Defendants were cited multiple 7 times by DSS due to Defendants’ lack of adequate and trained staff at the Facility and Defendant’s 8 failure to maintain a safe and clean environment for residents at the MuirWoods. Specifically, on 9 December 3, 2018, Defendants were cited under 22 C.C.R. § 87411(a) regarding personnel 10 requirements after Facility staff were unable to perform a lift assist on a resident who suffered a fall. 11 At the time of the incident, there were only three staff on duty, and the staff had to call emergency 12 services to help them lift the resident off the floor. DSS found the Facility “failed to ensure that staff 13 was competent to provide services necessary to meet resident’s need.” Defendants have also been 14 previously cited for failure to ensure the Facility was clean, safe, and sanitary. For example, ,any 15 residents’ bathrooms were found to be dirty, and the DSS Licensing Program Analyst (LPA) observed 16 toilets that were not flushed and toilet seats with dry feces. These deficiencies were provided to and 17 reviewed by Defendants’ managing agents, including Executive Director Jamie Gruland, as well as 18 Regional Vice President Pamela Hardesty. Moreover, other RCFEs owned and operated by 19 Defendants, including MuirWoods, had a history of investigations, incident reports, and deficiencies 20 and/or citations issued to them by DSS involving inadequate supervision and assistance to residents, 21 resident falls, failure to maintain a clean and safe environment, inadequately trained staff, and 22 violations of residents’ rights prior to Ms. Donahue’s falls at Defendants’ Facility. Again, this shows 23 that Defendants and their managing agents knew of this pattern of poor care at their facilities, 24 including MuirWoods, and yet failed to make changes prior to Ms. Donahue’s admission and falls at 25 Defendants’ Facility. 26 27 11 28 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE FROM REFERENCING ANY INVESTIGATIONS, CONCLUSIONS, DEFICIENCIES, CITATIONS OR PENALTIES (NEVARREZ) [Motion in Limine No. 2 of 11] 1 Notably, reckless conduct under the Elder Abuse Act can be shown through evidence tending 2 to demonstrate that the defendant had notice of deficient practices and that they ratified these 3 deficiencies by allowing them to continue. (Welf. & Inst. Code § 15657; Carter v. Prime Healthcare 4 Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-07.) Since there will seldom be explicit 5 evidence of ratification, courts encourage plaintiffs to rely on circumstantial evidence. (Hartman v. 6 Shell Oil Co. (1997) 68 Cal.App.3d 240, 248-49.) Courts have specifically held, both inside and 7 outside of the elder/dependent adult abuse context, that notice and ratification can be shown through 8 evidence outside of the particular acts perpetrated against the plaintiff. (See, e.g., Marron v. Superior 9 Court (2003) 108 Cal.App.4th 1049, 1054; Coats v. Construction and General Laborers Local no. 10 185, et al. (1971) Cal.App.3d 908, 911.) Again, as the California Supreme Court noted in College 11 Hospital, 8 Cal.4th at 726, the issue of notice and ratification “commonly arises where the employer 12 or its managing agent is charged with failing to intercede in a known pattern of workplace abuse or 13 failing to investigate or discipline the errant employee once such misconduct became known.” (See 14 also Hart v. National Mortgage & Land Co. (1987) Cal.App. 1420, 1432-33.) In the elder abuse 15 context in particular, courts have found that recklessness based on notice and ratification can be found 16 where there is evidence that defendants engaged in a pattern and practice of violating regulations: 17 If a jury were to find the Hospital knew of the staffing regulations, violated them, and had a significant pattern of doing so, it could infer recklessness, i.e., a ‘conscious 18 choice of a course of action…with knowledge of the serious danger to others involved in it.’ (Delaney, supra, 20 Cal.4th at pp. 31-31, 82 Cal.Rptr.2d 610, 971 P.2d 986.) …. 19 A jury may see knowingly flouting staffing regulations as part of a pattern and practice to cut costs, thereby endangering the facility’s elder and dependent patients, 20 as qualitatively different than simple negligence. (Fennimore v. Regents of the University of California (2016) 245 Cal.App.4th 1339, 1350, emphasis added.) 21 Here, Plaintiffs seek to introduce evidence relating to the DSS complaints to establish that 22 Defendants had notice of these deficiencies within their Facility and ratified these deficiencies by 23 allowing them to continue. Fenimore makes it clear that this evidence is admissible for the 24 purposes of establishing that Defendants were “knowingly flouting” regulations “as part of a 25 pattern and practice to cut costs.” (Id. at 1350, emphasis added.) Thus, evidence that Defendants 26 and their managing agents were aware of prior findings of deficiency by the DSS, and yet failed to 27 12 28 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE FROM REFERENCING ANY INVESTIGATIONS, CONCLUSIONS, DEFICIENCIES, CITATIONS OR PENALTIES (NEVARREZ) [Motion in Limine No. 2 of 11] 1 heed or correct such problems, is relevant because it indicates Defendants’ deliberate disregard of the 2 high degree of probability that harm will result, i.e., that Defendants were reckless. DSS documents are 3 also highly relevant because they will tend to demonstrate that despite notice of the Facility's 4 deficiencies and despite Defendants’ plans of correction, Defendants and their managing agents ratified the wrongdoing by allowing the problems to persist up to and including on August 31, 2021, when the 5 Facility was again cited for insufficient staffing. The documents will demonstrate Defendants’ ongoing 6 failures to take steps to prepare and keep residents safe, supervised and protected from avoidable 7 health and safety hazards at the Facility and, under the express language of College Hospital, they are 8 proper and admissible evidence of employer recklessness. 9 The DSS information is therefore admissible to demonstrate that Defendants were aware of the 10 problems within their Facility and consciously disregarded the known risks by allowing them to 11 persist, despite institution of plans of corrections to resolve state identified deficiencies. Moreover, 12 the fact that Defendants allowed such issues to continue throughout Plaintiff’s residency and 13 following her residency, as may be exemplified in subsequent annual surveys, will aid in proving 14 conscious disregard of the known risks and ratification. Prior incident evidence of the kind set forth 15 in DSS records is routinely admitted to demonstrate a defendant's knowledge, notice, recklessness and 16 ratification. This is especially the case where, as here, Plaintiffs bear the burden of showing that 17 Defendants exhibited a conscious disregard toward the safety of Ms. Donahue at the Facility. 18 Because the information that Defendants seek to exclude via their Motion in Limine No. 2 is 19 highly relevant to the issues in this case, Plaintiffs, their attorneys, and their witnesses should not be 20 precluded from referencing this information at trial. 21 III. DSS FINDINGS UNRELATED TO MS. DONAHUE ARE NOT UNDULY 22 PREJUDICIAL, WOULD NOT REQUIRE AN UNDUE CONSUMPTION OF TIME, AND ARE NOT INADMISSIBLE CHARACTER EVIDENCE 23 24 As set forth herein, the DSS documents regarding the care and treatment of residents at 25 Defendants’ Facility before and after Ms. Donahue’s residency speak directly to disputed facts of 26 consequence in the determination of this action – whether Defendants were reckless and whether the 27 13 28 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE FROM REFERENCING ANY INVESTIGATIONS, CONCLUSIONS, DEFICIENCIES, CITATIONS OR PENALTIES (NEVARREZ) [Motion in Limine No. 2 of 11] 1 reckless conduct was committed by or ratified by Defendants’ managing agents. Therefore, the 2 probative value of the DSS records far outweighs any possible prejudicial effect. Evidence Code 3 §352 provides: 4 The Court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will…(b) create substantial danger of 5 undue prejudice, or confusing the issues or of misleading the jury. 6 As noted above, Defendants’ history of repeated DSS violations at the Facility goes to the 7 very heart of this case. Any possible prejudice cannot possibly outweigh the probative value. 8 Moreover, the prejudice that Evidence Code § 352 is designed to avoid is not the prejudice or damage 9 to a party that naturally flows from relevant, highly probative evidence. Rather, the statute uses the 10 word in its etymological sense of “prejudging” a person or cause on the basis of extraneous factors. 11 Evidence should be excluded as unduly prejudicial only when it is of such a nature as to inflame the 12 emotions of the trier of fact, motivating them to use the information, not to logically evaluate the 13 point on which it is relevant, but to reward or punish one side because of the factfinder’s emotional 14 reaction. 15 Thus, the testimony at issue regarding repeated violations of the law may result in the type of 16 prejudice or damage to party that naturally flows from relevant, highly probative evidence. However, 17 that does not make the evidence unduly prejudicial under Evidence Code § 352. The bottom line is 18 that evidence of prior regulatory violations is routinely and properly admitted in litigation to prove 19 notice, recklessness and ratification where, as here, such showing is relevant to Plaintiffs’ burden of 20 proof. Indeed, such evidence is highly probative to show Defendants were aware of the systemic 21 problems that existed at their Facility and yet they failed to do anything to remedy those problems. 22 (See Hilliard, 148 Cal.App.3d at 387-38, 397-401 [where the Court ruled that it was prejudicial error 23 and an abuse of discretion for the trial court to exclude other incident evidence based upon Evidence 24 Code § 352].) Thus, Defendants’ Evidence Code § 352 arguments to preclude this evidence simply 25 fail. 26 Defendants also claim that they will need to unduly consume time to contest the validity of 27 14 28 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE FROM REFERENCING ANY INVESTIGATIONS, CONCLUSIONS, DEFICIENCIES, CITATIONS OR PENALTIES (NEVARREZ) [Motion in Limine No. 2 of 11] 1 their other violations because “defendants would have to try multiple cases within a case to address 2 the facts and circumstances in the other incidents involving other residents.” However, the 3 information is not being offered for the truth of the matter asserted. All of the DSS documents 4 discussed herein are being offered for the non-truth purpose of showing Defendants’ advance 5 knowledge of the regulatory violations they received (whether they contested them with the DSS or 6 not) and that they were on notice of statements being made in response by Defendants’ managing 7 agents. Thus, for example, when DSS cited Defendants in 2018 under 22 C.C.R. § 87411(a) after 8 Facility staff were unable to perform a lift assist on a resident who suffered a fall, this information 9 shows that Defendants were aware of this allegation and on notice that they needed to address the 10 issue of insufficient staffing – relating to falls in particular – at their Facility. Moreover, Defendants 11 have never produced any information that they contested any of these violations at any point in time 12 as part of discovery, and should be precluded from doing so now. 13 Lastly, contrary to Defendants’ assertions, the DSS evidence is also not “inadmissible 14 character evidence” pursuant to Evidence Code § 1101. While character evidence is inadmissible to 15 prove conformity with a character trait on a specific occasion, evidence that a person committed a 16 civil wrong is admissible when offered to prove some fact other than his or her disposition to commit 17 such acts. Evidence Code § 1101(b) provides: 18 Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact 19 (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident…. (Id., emphasis added.) 20 21 Thus, evidence of a prior wrongful act is admissible to prove knowledge or notice as an 22 element of a cause of action or an element of a crime. In fact, introduction of prior act evidence to 23 show notice and knowledge under Evidence Code § 1101(b) evidence is common place. It has been 24 sanctioned in scores of California cases, and often in serious criminal cases where, in contrast to the parties here, the defendants faced long-term incarceration or even death. (See, e.g., People v. Gray 25 (2005) 37 Cal.4th 168, 202 [admitting Evidence Code §1101(b) evidence in death penalty case]. 26 27 15 28 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE FROM REFERENCING ANY INVESTIGATIONS, CONCLUSIONS, DEFICIENCIES, CITATIONS OR PENALTIES (NEVARREZ) [Motion in Limine No. 2 of 11] 1 Again, in the present case, the DSS annual records, citations, statements of deficiencies, and 2 plans of correction demonstrate that Defendants consciously disregarded prior notice or knowledge of 3 issues in their Facility because the same problems contained therein continued to occur at 4 Defendants’ Facility and resulted in injury to Ms. Donahue. According to Evidence Code § 1101(b), 5 evidence of prior civil wrongs is in fact admissible to prove the fact of knowledge. The proffered 6 evidence here will establish just that – that Defendants had prior knowledge that injuries would result 7 from their substandard Facility conditions and reckless care and treatment of their residents. Thus, 8 evidence of the DSS information in this is not “inadmissible character evidence.” 9 IV. EVIDENCE OF DSS FINDINGS UNRELATED TO MS. DONAHUE DO NOT CONSTITUTE INADMISSIBLE HEARSAY 10 11 Defendants also argue that evidence regarding DSS findings unrelated to Ms. Donahue 12 contain hearsay statements that are inadmissible is without merit. Such evidence is not hearsay, both 13 because it is not offered for the truth of the matter asserted and because it tends to establish an 14 “operative fact” – e.g., that Defendants were aware of serious health and safety problems at their 15 Facility but failed to act to address these serious concerns. 16 An out of court statement is not hearsay if offered to show the effect on the hearer, reader, or 17 viewer rather than to prove the truth of the content of the statement. (Wegner et al, Cal. Practice 18 Guide: Civil Trials and Evidence (The Rutter Group 2009) P 8:1049, p. 8D-B.) Such statements are 19 properly admitted for a relevant non-hearsay purpose if used to show warning, admonition, or notice. (Caro v. Smith (1997) 59 Cal.App.4th 725, 733; see also Taylor v. Centennial Bowl, Inc. (1966) 65 20 Cal.2d 114, 125.) 21 All of the DSS documents discussed herein are admissible for the non-truth purpose of 22 showing Defendants’ advance knowledge of the regulatory violations occurring at their Facility, i.e., 23 that Defendants were on notice of the violations and were on notice of statements being made in 24 response by Defendants’ managing agents. Therefore, evidence of the DSS citations and regulatory 25 violations is not hearsay both because it is not offered for the truth of the matter asserted and because 26 it tends to establish an "operative fact" - e.g., that Defendants were aware of the substandard care 27 16 28 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE FROM REFERENCING ANY INVESTIGATIONS, CONCLUSIONS, DEFICIENCIES, CITATIONS OR PENALTIES (NEVARREZ) [Motion in Limine No. 2 of 11] 1 being provided at Skyline, but failed to act. (See Bihun v. AT & T Information Systems, Inc. (1993) 13 2 Cal.App.4th 976, 988 [sexual harassment case disapproved on unrelated grounds, Lakin v. Watkins 3 Assoc. Industries (1993) 6 Cal.4th 644].) 4 As the Court explained in Bihun: 5 The challenged evidence was not admitted to prove the truth of the matters asserted, e.g., that Fellows was maintaining a "love nest" with his executive assistant. The 6 jury was so instructed. Rather, the evidence was offered to show defendant had knowledge of Fellow's reputation and the complaints about his conduct with female 7 employees but took no steps to investigate or discipline Fellows. As such, the evidence was admissible as "operative facts" because it demonstrated an issue in 8 this case: defendant's knowledge of Fellow's behavior and complaints about that behavior. As noted above, defendant itself made the question of knowledge an issue 9 on the question of liability. Furthermore, the issue of knowledge is relevant to the award of punitive damages. (Id. at 988-89, emphasis added.) 10 11 As another example, in Taylor, the California Supreme Court held that evidence that the 12 defendant sought police assistance could be offered as evidence that disturbances had occurred and 13 that the defendant knew of them in order to show the defendant’s state of mind. (Taylor, 65 Cal.2d at 14 125.) The present case is analogous, as Plaintiffs intend to offer evidence of the DSS citations, statements of deficiencies, and plans of correction (which again were signed and acknowledged as 15 being received by Defendants’ managing agents) as evidence that they were aware of the pattern of 16 neglect and failures in resident care at their Facility that resulted in the numerous violations issued to 17 them relating to resident safety. As stated above, a showing of Defendants’ knowledge of the 18 substandard conditions (and conscious disregard of the risks associated with such conditions) is 19 necessary to Plaintiffs’ claim for enhanced remedies under the Elder Abuse Act and for punitive 20 damages. Thus, the DSS documents are admissible to show that Defendants had knowledge of the 21 substandard treatment at their Facility and ratified the conduct by failing to remedy the deficiencies. 22 As another example, in Laird, 51 Cal.2d at 219-20, the California Supreme Court assessed a 23 former employee’s testimony that he had heard