Case Number: BC618225 Hearing Date: August 21, 2019 Dept: J

HEARING DATE: Wednesday, August 21, 2019

NOTICE: OK

RE: Palma v. Kaiser Foundation Health Plan, Inc. (BC618225)

______________________________________________________________________________

Plaintiffs Juan Palma’s, Guardian of Misty Blackmon, Personally, and the Estate of Misty

Blackmon’s MOTION TO COMPEL THE DEPOSITION OF COREY DIGGS

Responding Party: None (unopposed, as of 8/15/19, 11:28 a.m.; due 8/8/19)

Tentative Ruling

See below.

Background

Medical malpractice. On April 27, 2016, Plaintiff Juan Palma, Guardian of Misty Blackmon, Personally, and the Estate of Misty Blackmon (“Plaintiffs”) filed a complaint, asserting causes of action against Defendants Kaiser Foundation Health Plan, Inc. (“KFHPI”), Kaiser Foundation Hospitals (“KFH”), Southern California Permanente Medical Group (“SCPMG”), Kaiser Permanente Ontario Medical Center, Shirin Badrtalei-Shah, D.O. (“Shah”), San Antonio Regional Hospital (“SARH”), Lew B. Disney, M.D., Carlos Vigil, D.O. (“Vigil”) and Does 1-100 for:

Medical Professional Negligence
Non-MICRA Negligence
Breach of Fiduciary Duty
Loss of Consortium

On July 13, 2017, this action was transferred from the personal injury hub (Department 93) to this department. On December 1, 2017, SARH filed a cross-complaint, asserting causes of action against Cross-Defendants Aviation West Charters, LLC, dba Angel Medflight World Wide Air Ambulance (“Aviation”) and Roes 1-100 for:

Equitable Indemnity
Comparative Indemnity
Declaratory Relief

On April 26, 2018, the court granted KFHPI’s motion for summary judgment and granted KFH’s and SCPMG’s respective motions for summary adjudication of the third cause of action.

On December 5, 2018, a Notice of Settlement was filed as between Plaintiffs and KFH, SCPMG, KFHPI and Shah. On January 16, 2019, the “Order Re: Application for Determination of Good Faith Settlement” as between Plaintiffs and KFH, SCPMG, KFHPI and Shah was filed.

On June 27, 2019, a second Notice of Settlement was filed as between Plaintiffs and Aviation. On July 23, 2019, an “Order Re Amended Application for Determination of Good Faith Settlement of Cross-Defendant, Aviation West Charters, LLC dba Angel Medflight World Wide Air Ambulance” was filed.

On July 23, 2019, an “Order re Defendant Lew B. Disney. M..D.’s Application for Determination of Good Faith Settlement” was filed.

A Final Status Conference is set for October 28, 2019. Trial is set for November 5, 2019.

Legal Standard

“The service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying.” (CCP § 2025.280(a).)

“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.” (CCP § 2025.450(a).)

“A motion under subdivision (a) shall comply with both of the following: (1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. (2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance…” (CCP § 2025.450(b).)

“If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (CCP § 2025.450(g)(1).)

Discussion

Plaintiffs Juan Palma, Guardian of Misty Blackmon, Personally, and the Estate of Misty

Blackmon (“Plaintiffs”) move, per CCP § 2025.450, for an order (1) to compel SARH’s

employee Corey Diggs, R.N. (“Diggs”), to appear for deposition and (2) for $3,500.00 in

monetary sanctions [calculated as follows: 3 hours commuting to/from Upland for June 12, 2019

deposition, plus 1 hour taking Certificate of Non-Appearance, plus 1 hour communicating with

counsel about taking Diggs’ deposition, plus 1 hour reviewing opposition, plus 2 hours drafting

reply, plus 2 hours attending hearing at $350.00/hour].

Diggs’ deposition was first noticed for September 7, 2018. (Gold Decl., ¶4.) Diggs’ deposition was subsequently rescheduled or re-noticed on approximately 6 different occasions. (Id., ¶5.) It was represented to Plaintiffs’ counsel Samantha Gold (“Gold”) by Vigil’s counsel that Diggs would be produced by SARH on June 12, 2019. (Id., ¶6.) On May 1, 2019, Vigil’s counsel contacted all parties via email to confirm that SARH would produce Diggs on June 12, 2019. (Id., ¶6, Exh. A.) On May 9, 2019, Lucinda Nowlin (“Nowlin”), assistant to SARH’s counsel Stephen A. Rosa 9”Rosa”), confirmed a location for Diggs’ deposition. (Id., ¶7.)

On May 13, 2019, Plaintiffs served their “Notice of Sixth Continuance of Video Depositions of San Antonio Regional Hospital and Request for Production of Documents at Depositions.” (Id., ¶7, Exh. B.) On May 31, 2019, Nowlin contacted the parties via email to communicate that Diggs was no longer available for deposition on June 12, 2019. (Id., ¶8, Exh. A.) In response, Gold advised Rosa and Nowlin, in light of the multiple previous continuances, that she would be amenable to rescheduling if Diggs could be produced for deposition prior to June 12, 2019; if he could not, then Gold intended to take a Certificate of Nonappearance on June 12, 2019 and to seek court intervention compelling Diggs’ deposition. (Id., ¶9, Exh. A.) No new date was provided; as such, Gold appeared for the scheduled deposition on June 12, 2019 and took a Certificate of Nonappearance. (Id., ¶10, Exh. C.) At the deposition for SARH employee Liza Loza, R.N., Rosa advised that Diggs was unavailable because he had to close escrow on his home and had to move. (Id., ¶11.) To date, SARH has not provided a new date for Diggs’ deposition, despite multiple requests to do so. (Id., ¶12.)

The motion demonstrates that Diggs failed to appear for his properly noticed deposition, and that Plaintiffs’ counsel adequately met and conferred regarding same. Plaintiffs, however have not set forth specific facts showing good cause justifying the production of the documents sought in the notice of deposition, as required by CCP § 2025.450(b)(1). The motion does not even mention these documents, or whether Plaintiffs seek to compel their production at Diggs’ deposition.

Accordingly, if Plaintiffs seek to compel Diggs’ deposition attendance only, the motion is GRANTED. SARH is ordered to provide Plaintiffs with three dates Diggs can submit to deposition within the next 30 days within 14 days of the order. The court elects to reduce the requested sanctions amount to $1,750.00 [i.e., 5 hours at $350.00/hour]. Sanctions are payable within 30 days of the order.

If Plaintiffs likewise seek to compel the production of documents, the motion will be CONTINUED to allow Plaintiffs to file and serve a supplemental brief and/or declaration setting forth specific facts showing good cause justifying the production of the documents sought in the notice of deposition.