Case Number: 17K01376 Hearing Date: June 06, 2018 Dept: 94

Defendant California Department of Public Health’s Motion to Compel Deposition is denied. Plaintiff is awarded sanctions of $13,025.00, to be paid within 30 days.

Legal Standard

CCP section 2025.450(a) states in relevant part:

If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

(Code Civ. Proc., § 2025.450(a).) A motion to compel deposition shall be accompanied by a meet and confer declaration under Section 2016.040. (See id., § 2025.450(b)(2).) A court shall impose monetary sanctions if the motion to compel is granted, unless the one subject to sanction acted with substantial justification or other circumstances would make the imposition of the sanction unjust. (See id., § 2025.450(g)(1).)

Discussion

Defendant seeks to compel Plaintiff to produce the persons most qualified regarding the following deposition categories:

Category 2: events alleged in the citation, namely the resident’s condition upon admission, Fall Risk Assessment and Physical Therapy Initial Evaluation, care plan regarding his fall risk, and his two fall incidents in June of 2016.

Category 3: the resident’s medical condition while resident resided at the facility;

Category 4: the resident’s mobility, including but not limited to transfer needs;

Category 5: the Facility’s care plan for the resident;

Category 6: the facility’s interventions to reduce the risk of resident falling or slipping.

Category 7: the resident’s falls while at Plaintiff’s facility; and

Category 9: Plaintiff’s in-services and safety trainings (if any) regarding reducing the risk of falls, while the resident resided at the facility.

Defendant contends that the person produced for deposition, Marissa Kirby, was not the person most qualified as she was an administrator at the time of the incident, and lacks personal knowledge of the above categories. The parties met and conferred regarding Kirby’s purported lack of qualification to testify at the completion of her deposition. (Motion, Kau Decl., Exh. C, p. 129.) Thereafter, Plaintiff’s counsel sent defense counsel a meet and confer letter stating its position that it would not produce more deponents. (Id. at Exh. D.) Defense counsel responded with her own reasoning regarding the deposition dispute and seeking additional information about what individuals would have personal knowledge regarding the above categories. (Id. at Exh. E.) Although the parties discussed their positions regarding the deposition dispute, defense counsel did not inform Plaintiff’s counsel of her intention to file the instant motion to compel. (Ibid.) Indeed, the last paragraph of her response asks for information about what individuals would have personal knowledge regarding the above categories, “regardless of whether [Plaintiff] will produce” more PMQ deponents. (Ibid.) By then filing the instant motion, Defendant did so without any hint that the dispute would have to be resolved by the court or that Plaintiff had to respond within a certain amount to time to avoid the motion. This is an inadequate meet and confer effort by Defendant to resolve the deposition dispute without court intervention.

Additionally, Defendant’s demand that Plaintiff produce the staff persons who were personally involved in the resident’s care, is not supported by the law. CCP section 2025.230 requires the deponent to “designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.” (CCP § 2025.230.) Plaintiff’s designated witness, Marissa Kirby, was prepared to testify regarding the above categories based on her review of the records and documentation regarding the resident. This is apparent from Defendant’s own separate statement. To the extent Kirby was unable to answer certain deposition questions, this was due to defense counsel’s specifically seeking personal knowledge and not allowing Kirby to review the records to answer.

Defendant’s motion relies on the assumption that the staff personally involved in the resident’s condition and care, the fall incident, and Plaintiff’s policies and procedures would have information that was not available to Kirby in the resident’s records and Plaintiff’s documentation of the incident. There is no reason to find this to be the case. There is nothing to indicate that the records from which Kirby obtained her knowledge of the above categories were incomplete or inadequate, and did not reflect the personal knowledge of the staff members directly involved in the resident’s condition and care, the fall incident, and Plaintiff’s policies and procedures.

The most relevant case, Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390, 1396-97, provides an example of an inadequate PMQ designation. (Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390.) In that case, the designated witnesses failed to produce the documents sought in the deposition notice, and had failed to make any effort to become familiar with the categories about which they were questioned. (Id. at 1393-97.) Here, Kirby was prepared to testify at the deposition to the extent of her knowledge based on the documents in Plaintiff’s possession, with which she was clearly familiar.

Based on the foregoing, the court finds that the instant motion to compel Plaintiff’s PMQ deposition is denied. Plaintiff is entitled to sanctions pursuant to CCP section 2035.010(h), in the amount of $13,025.00 based on 25 hours billed at $400.00 per hour, and five hours billed at $605.00 per hour. (Opp., Olson Decl., ¶10.)

Plaintiff to give notice.