Case Number: EC067564 Hearing Date: June 01, 2018 Dept: A

Mieure v Elwyn NC

MOTION TO COMPEL THE DEPOSITION OF THE PERSON MOST KNOWLEDGEABLE

Calendar: 15

Case No: EC067564

Hearing Date: 6/1/18 (cont. from 4/6/18, 4/20/18)

Action Filed: 11/3/17

Trial: Not set (CMC 7/20/18)

MP: Plaintiff Jennifer Mieure

RP: Defendants Elwyn and Elwyn California

ALLEGATIONS IN COMPLAINT:

Plaintiff Jennifer Mieure, by and through her guardian ad litem Sylvia Mieure, is a dependent adult under the care of Defendants Elywn NC, Elwyn, and Brilliant Corners because she was disabled with cerebral palsy, intellectual disability, and quadriplegia, and was unable to talk, hear, or walk. Plaintiff was able to be transferred from her bed only through a Hoyer Lift. On September 6, 2017, Plaintiff alleges she suffered personal injuries when she was being transferred with the Hoyer Lift.

The complaint, filed November 3, 2017, alleges causes of action for:

Dependent Adult Abuse (pursuant to Welf. & Inst. Code, §15600, et seq.)

Negligent Hiring and Supervision (CACI 426)

On February 9, 2018, the Court sustained the demurrer of Elwyn and Elwyn California with leave to amend. On March 2, 2018, the Court sustained the demurrer of Brilliant Corners with leave to amend.

On March 26, 2018, Plaintiff filed the signed stipulation permitting Plaintiff to file a First Amended Complaint by May 1, 2018 or, alternatively, until such time the PMKs of Elwyn Defendants and Brilliant Corners are completed in full.

RELIEF REQUESTED:

Plaintiff moves to compel the deposition of the PMK of Elwyn California. Plaintiff seeks monetary sanctions.

DISCUSSION:

Pursuant to CCP §2025.450, “[i]f, 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.” The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, as well as be accompanied by a meet and confer declaration. (CCP §2025.450(b).)

Plaintiff moves to compel the deposition of Elwyn California’s PMK to take place 10 days after the hearing. Plaintiff argues that Elwyn California failed to produce a witness at deposition on February 5, 2018 and did not provide alternate dates. It appears based on Plaintiff’s counsel’s declaration that Plaintiff made numerous attempts at meeting and conferring, requested convenient dates for Elwyn California’s PMK and counsel, and offered to be available for any proposed dates provided by Elwyn California’s counsel.

In opposition, Elwyn California argues that following the ruling on the demurrer on February 9, 2018, the parties met and conferred about the scheduling of the deposition. The stipulation entered by the parties provides that the deposition of the PMK will take place in March 2018 and that Plaintiff’s time to file a motion to compel the PMK’s deposition would be extended. Elwyn California argues that it suggested 3 dates in May 2018 for deposition. It also argues that in March 2018, it reached out to Plaintiff several times to express interest in mediating the action. Although the parties were suggesting possible mediators, Plaintiff filed this motion. (Opp., Ex. D.)

The parties have not been able to come to an informal resolution on a mutually agreeable deposition date, the topics of inquiry for the PMK, and the documents requested, despite the numerous efforts made by the parties. It is undisputed that Elwyn California should produce its PMK, as such the parties should meet and confer about setting the deposition on a mutually agreeable date and time.

The parties also dispute the topics of inquiry for the PMK and the documents requested in the deposition notice.

With regard to the topics 1-5 and 8-14, Elwyn California objected on several grounds such as vagueness and the scope of the topics, but ultimately stated without waiving objections that it would make a good faith effort to locate a PMK and produce said PMK for deposition on a mutually convenient time for all parties. As discussed above, the parties should meet and confer on a mutually agreeable date and time that is convenient for the deponent and the parties’ counsel.

In topics 6 and 7, Plaintiff seeks a PMK to answer questions about Incident Reports and/or Unusual Occurrence reports (no. 6), and to define the term “fall”. In opposition, Elwyn California states that it has agreed to produce a PMK on these topics. With regard to topic 6, Elwyn California objected to and stands by its argument that this topic contains information that is subject to the attorney-client privilege. Such objections may be appropriately raised at the time of the actual deposition when such questions are at issue.

As for the documents requested, Plaintiff provides a separate statement for the documents to be produced, which begins on pages 23 to 33 and includes 18 document requests. For the reasoning for each request, Plaintiff states: “Plaintiff hereby incorporates the arguments regarding Defendant’s objections set forth above as though set forth fully herein.” It appears that Plaintiff is referring to his arguments on pages 2 to 8 of the separate statement. However, the arguments on pages 2 to 8 recount Plaintiff’s efforts to depose Elwyn California’s PMK and address certain objections raised by Elwyn California. This is not sufficient for the “good cause” requirement under CCP §2025.450(b). Accordingly, at this time, Elwyn California’s PMK will not be compelled to produce such documents.

Based on the analysis above, the Court will grant the motion to compel Elwyn California’s PMK to attend his/her deposition. The parties are agreeable to and do not dispute Plaintiff’s right to depose the PMK on the topics of inquiry at issue. As such, the deposition should go forward. To the extent that Elwyn California has any objections to the deposition topics, those objections are best left for when specific questions are raised at the time of the deposition. As for the documents requested, Plaintiff has not established good cause in this motion for the production of the documents in the deposition notice.

The Court will deny Plaintiff’s request for monetary sanctions. The parties have made numerous efforts to meet and confer about the deposition and it appears there was reason for Elwyn California to believe that the conduct of the deposition could occur later based on the stipulation of the parties and the proposed mediation. As such, sanctions are not justified.

RULING:

Grant the motion to compel the deposition of Elwyn California’s PMK.

As a PMK has not been identified or dates provided for when a deposition is mutually convenient for the parties, the parties are ordered to meet and confer and set a deposition date at the hearing. Otherwise, the deposition will take place at the hour of 10:00 AM on June 14, 2018 or such other time as counsel may agree in writing at the office of counsel for Plaintiff.

Deny Plaintiff’s request for sanctions.