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BEACH LAW GROUP, LLP
500 E. ESPLANADE DRIVE, SUITE 1400
1 OXNARD, CALIFORNIA 93036
TELEPHONE: (805) 388-3100
FACSIMILE: (805) 388-3414
2
3 Thomas E. Beach - State Bar No. 096321
Paul D. Singer - State Bar No. 254957
4 mail@beachlawgroup.com
5 Attorneys for Defendants,
MBK SENIOR LIVING LLC; MBK REAL ESTATE LLC; MUIRWOODS MSL LLC; MSL
6 COMMUNITY MANAGEMENT LLC; MSL HOLDINGS IX LLC; and MUIRWOODS
MEMORY CARE
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SONOMA
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11 KELLIE TENNIER and RAYMOND Case No. SCV-268130
DONAHUE, Individually and as Successors- Complaint Filed: 04/02/2021
12 in-Interest to the Estate of THERESA Trial Date: 03/01/2024
500 E. ESPLANADE DRIVE, SUITE 1400
DONAHUE,
TELEPHONE: (805) 388-3100
OXNARD, CALIFORNIA 93036
FACSIMILE: (805) 388-3414
13 Assigned for All Purposes to:
Plaintiffs, Hon. Oscar Pardo, Department 19
14 vs.
15 MBK SENIOR LIVING, LLC; MBK REAL SUPPLEMENTAL BRIEF RE: SANCHEZ
ESTATE, LLC; MUIRWOODS MSL LLC; MOTION
16 MSL COMMUNITY MANAGEMENT, LLC;
MSL HOLDINGS IX, LLC; MUIRWOODS
17 MEMORY CARE; JAMIE GRALUND;
WAYNE DONAHUE (as Nominal
18 Defendant); DAVID DONAHUE (as Nominal
Defendant); and DOES 1-75, Inclusive,
19
Defendants.
20
21 TO THE TRIAL COURT, THE PARTIES AND ATTORNEYS OF RECORD:
22 I. IF THERESA DONAHUE’S MEDICAL RECORDS ARE INADMISSIBLE
23 HEARSAY, THEN PLAINTIFFS’ EXPERTS’ OPINIONS SHOULD BE EXCLUDED
24 An expert’s opinions are only admissible if the bases of their opinions are admissible facts.
25 An expert's opinion is only as good as the facts on which it is built. (Sargon Enterprises, Inc. v.
26 University of Southern California (2012) 55 Cal.4th 747, 770 [expert opinion “may not be based
27 ‘on assumptions of fact without evidentiary support’”].
28 If plaintiffs’ experts may testify that they relied on Theresa Donahue’s past medical
1
SUPPLEMENTAL BRIEF RE: SANCHEZ MOTION
1 records for the basis of their opinions and if those past medical records are inadmissible, then the
2 expert’s opinions are inadmissible. Garibay v. Hemmat (2008) 161 Cal. App. 4th 735, 737.
3 Further, the expert’s opinions are inadmissible as irrelevant. In People v. McVey (2018) 24
4 Cal. App. 5th 405, 417, the court held the trial court properly excluded the defense expert's
5 testimony based on the hearsay documents, for without disclosure of the contents of the records,
6 any opinion the expert might have offered would have been irrelevant. “Thus, the validity of the
7 expert's opinion depends entirely on the truth of the hearsay: “If the underlying hearsay is not true,
8 the opinion is rendered irrelevant to the case at hand.” (Jeffrey G., supra, 13 Cal.App.5th at p.
9 509; Sanchez, at pp. 682–683.)” Id.
10 II. IF THERESA DONAHUE’S PAST MEDICAL RECORDS REFLECT AN “ACT,
11 CONDITION OR EVENT,” THEN THEY ARE ADMISSIBLE AS BUSINESS
12 RECORDS.
500 E. ESPLANADE DRIVE, SUITE 1400
TELEPHONE: (805) 388-3100
OXNARD, CALIFORNIA 93036
FACSIMILE: (805) 388-3414
13 Theresa Donahue’s medical records are subject to the business records hearsay exception if
14 they pertain to an act, condition or event, i.e., something that was seen or observed. People v.
15 Reyes (1974) 12 Cal.3d 486, 503. A wholesale ruling that the business records hearsay exception
16 is inapplicable with regard to her past medical records is overbroad.
17 III. THE LIBERAL BREADTH OF CROSS-EXAMINATION PERMITS THE USE OF
18 HEARSAY TO TEST AN EXPERT’S KNOWLEDGE AND CREDIBILITY IN A
19 CIVIL ACTION.
20 “A witness testifying as an expert ... may be fully cross-examined as to ... the matter upon
21 which his or her opinion is based and the reasons for his or her opinion.” (Evid. Code, § 721, subd.
22 (a).) “The scope of cross-examination of an expert witness is especially broad. [Citation.]
23 Evidence that is inadmissible on direct examination may be used to test an expert's credibility,
24 though the court must exercise its discretion under Evidence Code section 352 to limit the
25 evidence to its proper uses.” People v. Gonzales (2011) 51 Cal.4th 894, 923.
26 There is an exception to this rule in criminal cases where the defendant has a Sixth
27 Amendment “right to confrontation.” The Sixth Amendment does not apply in civil cases (People
28 v. Otto (2001) 26 Cal. 4th 200, 214), therefore, in a civil action an expert can be cross-examined
2
SUPPLEMENTAL BRIEF RE: SANCHEZ MOTION
1 with hearsay subject to Evidence Code § 352.
2 “The Sanchez rule barring an expert from relating case-specific hearsay should not be
3 understood to bar cross-examination which seeks to undermine an expert's opinion by showing
4 that facts relied upon are suspect or that facts inconsistent with the opinion were ignored. Such
5 cross-examination is permissible, subject to section 352, because the underlying details are
6 introduced to impeach the expert's opinion and not for their truth.” (Simons on California
7 Evidence, § 4.31, citing People v. Townsel (2016) 63 Cal. 4th 25, 55–56.) Whether true or not, the
8 out of court statements undermine the expert’s opinion unless the expert can explain why he or she
9 ignored them. (Simons on California Evidence, § 4.31.) ose r
10
20 2024
11 Dated: March ____, BEACH LAW GROUP, LLP
12
500 E. ESPLANADE DRIVE, SUITE 1400
TELEPHONE: (805) 388-3100
OXNARD, CALIFORNIA 93036
FACSIMILE: (805) 388-3414
13 By:
Thomas E. Beach
14 Paul D. Singer
Attorneys for Defendants,
15 MBK SENIOR LIVING LLC; MBK REAL ESTATE
LLC; MUIRWOODS MSL LLC; MSL COMMUNITY
16 MANAGEMENT LLC; MSL HOLDINGS IX LLC; and
MUIRWOODS MEMORY CARE;
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3
SUPPLEMENTAL BRIEF RE: SANCHEZ MOTION
1 PROOF OF SERVICE
2 STATE OF CALIFORNIA, COUNTY OF VENTURA
3 I am employed in the County of Ventura, State of California. I am over the age of 18 and
not a party to the within action. My business address is 500 E. Esplanade Drive, Suite 1400,
4 Oxnard, CA 93036.
5 On the date set forth below, I served the foregoing document described as:
SUPPLEMENTAL BRIEF RE: SANCHEZ MOTION on the interested parties in this action as
6 follows:
7 SEE ATTACHED SERVICE LIST
8 ☐ (BY FIRST CLASS MAIL) I placed the above-named document in an envelope and
caused such envelope with postage thereon fully prepaid to be placed for mailing with the United
9 States Postal Service at Oxnard, California. I am “readily familiar” with the firm’s practice for
collection and processing of correspondence for mailing. It is deposited with the United States
10 Postal Service on that same day in the ordinary course of business. I am aware that on motion of
the party served, service is presumed invalid if postal cancellation date or postage meter date is
11 more than one day after the date of deposit for mailing contained in affidavit.
12 ☐ (BY FACSIMILE TRANSMISSION) I transmitted the above-named document from a
500 E. ESPLANADE DRIVE, SUITE 1400
facsimile transmission machine in Oxnard, California, whose telephone number is (805) 388-
TELEPHONE: (805) 388-3100
OXNARD, CALIFORNIA 93036
FACSIMILE: (805) 388-3414
13 3414, to the interested parties herein whose facsimile transmission telephone numbers are included
in the attached Service List. The above-described transmission was reported as complete without
14 error by a transmission report issued by the facsimile transmission machine upon which the said
transmission was made immediately following the transmission.
15
☐ (BY OVERNIGHT CARRIER) I placed the above-named document in an envelope or
16 package designated by [Federal Express/General Logistics Systems (GLS)/Express Mail]
(“express service carrier”) addressed to the parties listed on the service list herein, and caused such
17 envelope with delivery fees paid or provided for to be deposited in a box maintained by the
express service carrier. I am “readily familiar” with the firm’s practice of collection and
18 processing of correspondence and other documents for delivery by the express service carrier. It is
deposited in a box maintained by the express service carrier on that same day in the ordinary
19 course of business.
20 ☐ (BY PERSONAL SERVICE) I placed the above-named document in an envelope and
caused such envelope to be delivered by hand to the office of the addressee.
21
☒ (BY ELECTRONIC SERVICE) I served the above-named document electronically on
22 the parties listed on the service list herein. My email address is tgoodrich@beachlawgroup.com.
23 ☒ (State) I declare under penalty of perjury under the laws of the State of California that the
above is true and correct.
24
20 2024 at Oxnard, California.
Executed on March ____,
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26
Tina Goodrich
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1 SERVICE LIST
Donahue v. MBK Senior Living LLC, et al.
2 Sonoma County Superior Court Case No. SCV-268130
3 ATTORNEYS FOR PLAINTIFF
4 Kathryn A. Stebner, Esq.
Karman Guadagni, Esq.
5 Deena K. Zacharin, Esq.
Stebner Gertler Guadagni & Kawamoto
6 870 Market Street, Suite 1285
San Francisco, CA 94102
7
Phone: (415) 362-9800
8 Fax: (415) 362-9801
kathryn@sggklaw.com
9 karman@sggklaw.com
deena@sggklaw.com
10 ann@sggklaw.com
scott@sggklaw.com
11 kelsey@sggklaw.com
shae@sggklaw.com
12
500 E. ESPLANADE DRIVE, SUITE 1400
TELEPHONE: (805) 388-3100
OXNARD, CALIFORNIA 93036
FACSIMILE: (805) 388-3414
13 Kirsten Fish, Esq.
Needham, Kepner & Fish, LLP
14 1960 The Alameda, Suite 210
San Jose, CA 95126
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Phone: (408) 244-2166
16 Fax: (408) 244-7815
kfish@nkf-law.com
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Preview
BEACH LAW GROUP, LLP 500 E. ESPLANADE DRIVE, SUITE 1400 1 OXNARD, CALIFORNIA 93036 TELEPHONE: (805) 388-3100 FACSIMILE: (805) 388-3414 2 3 Thomas E. Beach - State Bar No. 096321 Paul D. Singer - State Bar No. 254957 4 mail@beachlawgroup.com 5 Attorneys for Defendants, MBK SENIOR LIVING LLC; MBK REAL ESTATE LLC; MUIRWOODS MSL LLC; MSL 6 COMMUNITY MANAGEMENT LLC; MSL HOLDINGS IX LLC; and MUIRWOODS MEMORY CARE 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SONOMA 10 11 KELLIE TENNIER and RAYMOND Case No. SCV-268130 DONAHUE, Individually and as Successors- Complaint Filed: 04/02/2021 12 in-Interest to the Estate of THERESA Trial Date: 03/01/2024 500 E. ESPLANADE DRIVE, SUITE 1400 DONAHUE, TELEPHONE: (805) 388-3100 OXNARD, CALIFORNIA 93036 FACSIMILE: (805) 388-3414 13 Assigned for All Purposes to: Plaintiffs, Hon. Oscar Pardo, Department 19 14 vs. 15 MBK SENIOR LIVING, LLC; MBK REAL SUPPLEMENTAL BRIEF RE: SANCHEZ ESTATE, LLC; MUIRWOODS MSL LLC; MOTION 16 MSL COMMUNITY MANAGEMENT, LLC; MSL HOLDINGS IX, LLC; MUIRWOODS 17 MEMORY CARE; JAMIE GRALUND; WAYNE DONAHUE (as Nominal 18 Defendant); DAVID DONAHUE (as Nominal Defendant); and DOES 1-75, Inclusive, 19 Defendants. 20 21 TO THE TRIAL COURT, THE PARTIES AND ATTORNEYS OF RECORD: 22 I. IF THERESA DONAHUE’S MEDICAL RECORDS ARE INADMISSIBLE 23 HEARSAY, THEN PLAINTIFFS’ EXPERTS’ OPINIONS SHOULD BE EXCLUDED 24 An expert’s opinions are only admissible if the bases of their opinions are admissible facts. 25 An expert's opinion is only as good as the facts on which it is built. (Sargon Enterprises, Inc. v. 26 University of Southern California (2012) 55 Cal.4th 747, 770 [expert opinion “may not be based 27 ‘on assumptions of fact without evidentiary support’”]. 28 If plaintiffs’ experts may testify that they relied on Theresa Donahue’s past medical 1 SUPPLEMENTAL BRIEF RE: SANCHEZ MOTION 1 records for the basis of their opinions and if those past medical records are inadmissible, then the 2 expert’s opinions are inadmissible. Garibay v. Hemmat (2008) 161 Cal. App. 4th 735, 737. 3 Further, the expert’s opinions are inadmissible as irrelevant. In People v. McVey (2018) 24 4 Cal. App. 5th 405, 417, the court held the trial court properly excluded the defense expert's 5 testimony based on the hearsay documents, for without disclosure of the contents of the records, 6 any opinion the expert might have offered would have been irrelevant. “Thus, the validity of the 7 expert's opinion depends entirely on the truth of the hearsay: “If the underlying hearsay is not true, 8 the opinion is rendered irrelevant to the case at hand.” (Jeffrey G., supra, 13 Cal.App.5th at p. 9 509; Sanchez, at pp. 682–683.)” Id. 10 II. IF THERESA DONAHUE’S PAST MEDICAL RECORDS REFLECT AN “ACT, 11 CONDITION OR EVENT,” THEN THEY ARE ADMISSIBLE AS BUSINESS 12 RECORDS. 500 E. ESPLANADE DRIVE, SUITE 1400 TELEPHONE: (805) 388-3100 OXNARD, CALIFORNIA 93036 FACSIMILE: (805) 388-3414 13 Theresa Donahue’s medical records are subject to the business records hearsay exception if 14 they pertain to an act, condition or event, i.e., something that was seen or observed. People v. 15 Reyes (1974) 12 Cal.3d 486, 503. A wholesale ruling that the business records hearsay exception 16 is inapplicable with regard to her past medical records is overbroad. 17 III. THE LIBERAL BREADTH OF CROSS-EXAMINATION PERMITS THE USE OF 18 HEARSAY TO TEST AN EXPERT’S KNOWLEDGE AND CREDIBILITY IN A 19 CIVIL ACTION. 20 “A witness testifying as an expert ... may be fully cross-examined as to ... the matter upon 21 which his or her opinion is based and the reasons for his or her opinion.” (Evid. Code, § 721, subd. 22 (a).) “The scope of cross-examination of an expert witness is especially broad. [Citation.] 23 Evidence that is inadmissible on direct examination may be used to test an expert's credibility, 24 though the court must exercise its discretion under Evidence Code section 352 to limit the 25 evidence to its proper uses.” People v. Gonzales (2011) 51 Cal.4th 894, 923. 26 There is an exception to this rule in criminal cases where the defendant has a Sixth 27 Amendment “right to confrontation.” The Sixth Amendment does not apply in civil cases (People 28 v. Otto (2001) 26 Cal. 4th 200, 214), therefore, in a civil action an expert can be cross-examined 2 SUPPLEMENTAL BRIEF RE: SANCHEZ MOTION 1 with hearsay subject to Evidence Code § 352. 2 “The Sanchez rule barring an expert from relating case-specific hearsay should not be 3 understood to bar cross-examination which seeks to undermine an expert's opinion by showing 4 that facts relied upon are suspect or that facts inconsistent with the opinion were ignored. Such 5 cross-examination is permissible, subject to section 352, because the underlying details are 6 introduced to impeach the expert's opinion and not for their truth.” (Simons on California 7 Evidence, § 4.31, citing People v. Townsel (2016) 63 Cal. 4th 25, 55–56.) Whether true or not, the 8 out of court statements undermine the expert’s opinion unless the expert can explain why he or she 9 ignored them. (Simons on California Evidence, § 4.31.) ose r 10 20 2024 11 Dated: March ____, BEACH LAW GROUP, LLP 12 500 E. ESPLANADE DRIVE, SUITE 1400 TELEPHONE: (805) 388-3100 OXNARD, CALIFORNIA 93036 FACSIMILE: (805) 388-3414 13 By: Thomas E. Beach 14 Paul D. Singer Attorneys for Defendants, 15 MBK SENIOR LIVING LLC; MBK REAL ESTATE LLC; MUIRWOODS MSL LLC; MSL COMMUNITY 16 MANAGEMENT LLC; MSL HOLDINGS IX LLC; and MUIRWOODS MEMORY CARE; 17 18 19 20 21 22 23 24 25 26 27 28 3 SUPPLEMENTAL BRIEF RE: SANCHEZ MOTION 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA, COUNTY OF VENTURA 3 I am employed in the County of Ventura, State of California. I am over the age of 18 and not a party to the within action. My business address is 500 E. Esplanade Drive, Suite 1400, 4 Oxnard, CA 93036. 5 On the date set forth below, I served the foregoing document described as: SUPPLEMENTAL BRIEF RE: SANCHEZ MOTION on the interested parties in this action as 6 follows: 7 SEE ATTACHED SERVICE LIST 8 ☐ (BY FIRST CLASS MAIL) I placed the above-named document in an envelope and caused such envelope with postage thereon fully prepaid to be placed for mailing with the United 9 States Postal Service at Oxnard, California. I am “readily familiar” with the firm’s practice for collection and processing of correspondence for mailing. It is deposited with the United States 10 Postal Service on that same day in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is 11 more than one day after the date of deposit for mailing contained in affidavit. 12 ☐ (BY FACSIMILE TRANSMISSION) I transmitted the above-named document from a 500 E. ESPLANADE DRIVE, SUITE 1400 facsimile transmission machine in Oxnard, California, whose telephone number is (805) 388- TELEPHONE: (805) 388-3100 OXNARD, CALIFORNIA 93036 FACSIMILE: (805) 388-3414 13 3414, to the interested parties herein whose facsimile transmission telephone numbers are included in the attached Service List. The above-described transmission was reported as complete without 14 error by a transmission report issued by the facsimile transmission machine upon which the said transmission was made immediately following the transmission. 15 ☐ (BY OVERNIGHT CARRIER) I placed the above-named document in an envelope or 16 package designated by [Federal Express/General Logistics Systems (GLS)/Express Mail] (“express service carrier”) addressed to the parties listed on the service list herein, and caused such 17 envelope with delivery fees paid or provided for to be deposited in a box maintained by the express service carrier. I am “readily familiar” with the firm’s practice of collection and 18 processing of correspondence and other documents for delivery by the express service carrier. It is deposited in a box maintained by the express service carrier on that same day in the ordinary 19 course of business. 20 ☐ (BY PERSONAL SERVICE) I placed the above-named document in an envelope and caused such envelope to be delivered by hand to the office of the addressee. 21 ☒ (BY ELECTRONIC SERVICE) I served the above-named document electronically on 22 the parties listed on the service list herein. My email address is tgoodrich@beachlawgroup.com. 23 ☒ (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 24 20 2024 at Oxnard, California. Executed on March ____, 25 26 Tina Goodrich 27 28 1 SERVICE LIST Donahue v. MBK Senior Living LLC, et al. 2 Sonoma County Superior Court Case No. SCV-268130 3 ATTORNEYS FOR PLAINTIFF 4 Kathryn A. Stebner, Esq. Karman Guadagni, Esq. 5 Deena K. Zacharin, Esq. Stebner Gertler Guadagni & Kawamoto 6 870 Market Street, Suite 1285 San Francisco, CA 94102 7 Phone: (415) 362-9800 8 Fax: (415) 362-9801 kathryn@sggklaw.com 9 karman@sggklaw.com deena@sggklaw.com 10 ann@sggklaw.com scott@sggklaw.com 11 kelsey@sggklaw.com shae@sggklaw.com 12 500 E. ESPLANADE DRIVE, SUITE 1400 TELEPHONE: (805) 388-3100 OXNARD, CALIFORNIA 93036 FACSIMILE: (805) 388-3414 13 Kirsten Fish, Esq. Needham, Kepner & Fish, LLP 14 1960 The Alameda, Suite 210 San Jose, CA 95126 15 Phone: (408) 244-2166 16 Fax: (408) 244-7815 kfish@nkf-law.com 17 18 19 20 21 22 23 24 25 26 27 28