Case Number: BC618225 Hearing Date: January 15, 2020 Dept: J

HEARING DATE: Wednesday, January 15, 2020

NOTICE: OK

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

______________________________________________________________________________

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

Misty Blackmon’s MOTION TO COMPEL THE DEPOSITION OF DEFENDANT’S

PMQ

Responding Party: None (unopposed, as of 1/10/20, 12:18 p.m.; due 1/2/20)

Tentative Ruling

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

Misty Blackmon’s unopposed Motion to Compel the Deposition of Defendant’s PMQ is GRANTED.

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.

On August 29, 2019, Plaintiffs dismissed KFH, SCPMG, KFHPI and Shah, with prejudice.

A Final Status Conference is set for March 2, 2020. Trial is set for March 10, 2020.

Legal Standard

CCP § 2025.010 provides, in relevant part, that “[a]ny party may obtain discovery. . .by taking in California the oral deposition of any person, including any party to the action. The person deposed may be a natural person, an organization such as a public or private corporation, a partnership, an association, or a governmental agency.”

CCP § 2025.230 states that “[i]f the deponent is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall 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 reasonable available to the deponent.”

CCP § 2025.450(a) provides that if, after a deposition notice is served, 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, fails to appear for examination or to produce for inspection any document, electronically stored information, or things described in the deposition notice, the party noticing the deposition may move for an order compelling the deponent’s attendance and testimony, and the production of any document, electronically stored information, or things described in the deposition notice.

A motion to compel deposition 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)(2).)

The motion shall also 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. (CCP § 2025.450(b)(1).) “Good cause” for production of documents may be established where it is shown that the request is made in good faith and that the documents sought are relevant to the subject matter and material to the issues in the litigation. See Associated Brewers Distributing Co. v. Superior Court of Los Angeles County (1967) 65 Cal.2d 583, 588.

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. (CCP § 2025.450(g)(1).)

Any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement providing all information necessary to understand each discover request and all the responses at issue. (California Rules of Court, Rule 3.1345(a),(c).)

Discussion

Plaintiffs move the court for an order to compel SARH’s person(s) most qualified (“PMQ”) on a variety of topics related to SARH’s phone logs, electronic medical records system and audit trail (hereinafter collectively, “EMR Information”) to appear for deposition.

On June 12, 2019, Plaintiffs served a “Noticing of Deposition of Person(s) Most Qualified of Defendant San Antonio Regional Hospital;” the deposition was noticed for July 17, 2019. (Gold Decl., ¶3, Exh. 1.) Plaintiffs did not receive any objection from SARH concerning the deposition. (Id., ¶5.) On July 16, 2019, counsel for SARH conveyed to Plaintiffs’ counsel telephonically that the identities of the PMQs were still being determined by SARH. (Id., ¶6.) Due to that, Plaintiffs agreed to take the PMQ deposition off calendar, to be rescheduled on a later date. (Id.) On September 4, 2019, Plaintiffs’ counsel Samantha Gold (“Gold”) emailed SARH’s counsel to request the availability of SARH and the PMQs for deposition. (Id., ¶10, Exh. 2.) Gold did not receive a response to this email. (Id.) On October 2, 2019, Plaintiffs’ counsel’s office sent a letter to SARH’s counsel, again asking for the availability of the PMQs for deposition, along with a copy of the original deposition notice. (Id., ¶11, Exh. 4.) Having not received a response to the email, Gold raised the subject with SARH’s counsel while they were appearing ex parte on October 11, 2019. (Id., ¶12.) SARH’s counsel informed Gold that although the PMQs had been identified, SARH’s counsel’s trial schedule had prevented the depositions from occurring previously. (Id.) SARH’s counsel agreed to work with Plaintiffs’ counsel’s office to set dates for the PMQ deposition. (Id.) On November 6, 2019, Gold attempted to meet and confer with SARH’s counsel. (Id., ¶13, Exh. 5.) Gold did not receive any response. (Id.)

The motion demonstrates that SARH’s PMQ(s) has/have failed to appear for his/her/their properly noticed deposition, and that Plaintiffs’ counsel adequately met and conferred regarding same. Accordingly, the unopposed motion is GRANTED.