2015-00183155-CU-MM

Sally Burt Kelsch vs. Western Dental Services, Inc.

Nature of Proceeding: Motion to Compel PMK Deposition with Production of Documents

Filed By: Gorman, A. Alexander

Plaintiff’s Motion to Compel Defendant Western Dental Services’ Person Most Knowledgeable to Appear and Produce Documents at Deposition is GRANTED. Sanctions are neither requested nor imposed. Code Civil Procedure section 2025.450.

On Tuesday, Feb. 20, 2018, Plaintiff personally served the Notice of Deposition of Defendant Western Dental Services’ Person Most Knowledgeable and Production of Documents on defense counsel. The PMK deposition was scheduled for Friday, March 2, 2018. (Exhibit A)

On Wednesday, Feb. 21, 2018, Plaintiff’s counsel emailed defense counsel Sillis and his secretary, Mickins, stating that he was amenable to discussing rescheduling the date of the deposition and/or receiving documents and answers to questions in writing in advance of the deposition date, and cancelling the deposition. No response to that email was received. (Exhibit B)

On March 1, 2018, the day before the noticed PMK deposition, plaintiff’s counsel sent another email to defense counsel’s secretary Mickins to confirm that the deposition the following day would proceed. (Exhibit C)

In response Mickins the secretary for defense counsel responded that the defense attorney Sillis must not have replied to the Feb. 21, 2018 email, but there would be no PMK deposition on March 2, 2018, and offered to reschedule once defense counsel knew his calendar availability due to a trial in San Francisco. (Exhibit C) Plaintiff’s counsel spoke to the secretary by phone and told her that he had to take a notice of non-appearance, due to the impending trial date of April10, 2018, but would be amenable to rescheduling. He then sent a confirming email to defense counsel and his secretary. (Exhibit D) On March 1, Plaintiff’s counsel received a telephone call from attorney Wahl on behalf of defense counsel Sillis representing that the documents had been requested and offering to reschedule the deposition as soon as Sillis knew his trial schedule. Plaintiff’s counsel reiterated to Wahl that he had to take a notice of non-appearance to preserve his deadline to move to compel. He also gave his personal cell phone, so that he could be reached to reschedule.

On March 2, 2018, a notice of nonappearance was taken. This motion was filed on March 2, 2018.

Although counsel for the defense asserts that an insufficient meet and confer was made prior to filing this motion, the Court does not concur. Despite multiple attempts to reschedule the deposition by counsel for plaintiff, the defense did not respond with any alternative dates. Nor does defendant’s opposition proffer any dates for the PMK deposition, nor attach any correspondence representing that the deposition has been rescheduled.

Defendant’s PMK is ordered to appear, produce documents and testify under oath at his deposition to be noticed for mutually convenient date not later than Monday, April 2, 2018, at the offices of defendants’ counsel

Sanctions are neither requested nor imposed.