Case Number: BC704049 Hearing Date: February 20, 2020 Dept: S27

TENTATIVE RULING: grant in part

BACKGROUND

This is a wrongful death action filed by Plaintiffs Mauro Gaspar Campos and Zabdi Gaspar Guzman (collectively “Plaintiffs”), alleging medical negligence in the care of treatment of their two-year-old daughter “Minor Child A,” later identified as Sarah Gaspar (“Decedent”), resulting in her death. Plaintiffs commenced a lawsuit against many defendant medical providers including Defendant Shun PA, M.D. (“Defendant”), who provided medical care to Plaintiffs’ daughter in the emergency department.

On May 1, 2018, Plaintiffs filed their complaint.[1]

On November 7, 2019, Defendant testified at his deposition. Plaintiffs’ counsel asked Defendant certain questions that Defendant upon instruction by his counsel did not answer.

On January 17, 2020, Plaintiffs filed this motion seeking to compel Defendant to answer certain questions that refused to answer at his deposition along with reasonable follow-up questions. Plaintiffs also seek $7,831.20 in monetary sanctions.

On February 5, 2020, Defendant opposed. Defendant argues that the questions were either (1) voluntarily withdrawn by Plaintiffs’ counsel; (2) fully and completely answered by Defendant; (3) unintelligible and incapable of answering without clarification; (4) rhetorical questions not intended to elicit a response from Defendant; or (5) prohibited questions asking for a present day expert opinion of a party witness who has not been designated as an expert. Defendant also seeks $2,390.00 in monetary sanctions against Plaintiffs.

On February 11, 2020, Plaintiffs filed their reply.

MEET AND CONFER

Defendant argues that that Court should deny Plaintiffs’ motion because of insufficient meet and confer efforts.

A motion to compel answers for depositions questions must be accompanied by a declaration stating facts showing “a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., §§ 2016.040, 2025.480 subd. (b).)

Here, Plaintiffs’ counsel filed a declaration that describe the meet and confer efforts. Specifically, Plaintiffs’ counsel mailed a letter on December 26, 2019, Defendant’s counsel responded via letter on January 3, 2020, and there was some communications via email on unknown dates that Defendant’s counsel did not respond to. (Buda Decl. ¶¶ 9-11.)

As a preliminary matter, the Court notes that Plaintiffs did not file any of the exhibits that are claimed to be annexed to the Buda Declaration. Therefore, the Court finds it difficult to assess whether the meet and confer efforts were done reasonably and in good faith. However, Defendant did include some of this correspondence as exhibits to their opposition.

Specifically, Defendant included the initial meet and confer letter sent on December 26, 2019 (Koerner Decl. Ex. C.) In this three page letter, Plaintiffs’ counsel claims there were approximately 25 times that Defendant was instructed not to answer a question because of relevance, form of the questions, and unidentified reasons. Plaintiffs’ counsel argues that any instruction not based on privilege were improper. With the exception of questions objected to on the basis of eliciting an expert opinion, it is unclear from the meet and confer letter what specific questions that was the subject of a second deposition. In fact, the letter itself does not identify any of questions from the deposition verbatim so that the parties’ counsel can try to resolve the dispute informally.

In response, Defendant’s counsel sent a letter on January 3, 2020. (Id. Ex. D.) In that letter, Defendant’s counsel notes that the previous letter did not identify the questions. Therefore, Defendant’s counsel could not discuss any specific question and requested to discuss the issue in more detail with citations to “page and line number.” (Id. pg. 2.)

In response, Plaintiffs’ counsel sent on January 15, 2020. (Id. Ex. E.) In that letter, Plaintiffs’ counsel identified the topics of the questions and included portions of the transcript, though she did not identify the specific page or line numbers corresponding to the topics.

In response, Defendant’s counsel sent a letter on January 16, 2020. (Id. Ex. F.) In that letter, Defendant’s counsel noted that the transcript in the previous letter did not correspond to all of the topics.

There were no other discussions before Plaintiffs filed this motion.

Although the Court finds that the initial meet and confer efforts were inadequate, Plaintiffs’ letter on January 15, 2020 constitute sufficient—albeit belated—meet and confer efforts.

Accordingly, the Court discusses the merits.

LEGAL STANDARDS

Code of Civil Procedure section 2025.480, subdivision (a) states: “If a deponent fails to answer any question . . . the party seeking discovery may move the court for an order compelling that answer . . . .”

“If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition.” (Code Civ. Proc. § 2025.480, subd. (i).)

ANALYSIS

The parties dispute 18 identified questions, with question number 2 have three subquestions/subparts. The questions involve a variety of topics and a few questions center around Defendant’s opinion.

Whether Question Nos. 1 and 4 were Withdrawn

Defendant argues that Plaintiff withdrew question numbers 1 and 4. Plaintiffs do not respond to this argument. The Court treats this failure to oppose an inference that Defendant’s argument has merit. (See Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410 (Sexton).) Nevertheless, the Court examines the relevant testimony.

Following asking question number 1,[2] Plaintiffs’ counsel based on the transcript appeared to withdraw this question: “Well, the importance of the hobbies — and I’ll get to it — is a little bit of what you do on a regular basis so — and how you perform as a professional. So I’ll get to the nitty-gritty. Maybe I don’t need your hobbies: you’re right.” Based on this transcript and Plaintiffs’ failure to otherwise address this argument, the Court finds that Plaintiffs did withdraw this question.

Following asking question number 4,[3] Plaintiffs’ counsel and Defendant’s counsel discussed that this question was unclear. During this discussion, Plaintiffs’ counsel based on the transcript appeared to clarify the issue, noting that Defendant had testified that Randy Gilman was a physician assistant on the shift of earlier days. After this clarification, Plaintiffs’ counsel had an opportunity to ask the specific question again but moved on: “Okay. I won’t ask the question if you interacted with him. I’m going to ask a different question now.” Based on this transcript and Plaintiffs’ failure to otherwise address this argument, the Court finds that Plaintiffs did withdraw this question.

Therefore, the Court denies Plaintiffs’ request as to question numbers 1 and 4.

Whether Question Nos. 2-3, 5-9, 11, and 14-15 were Answered

Defendant argues that he already answered question numbers 2-3, 5-9, 11, and 14-15. Plaintiffs do not respond to this argument. The Court treats this failure to oppose an inference that Defendant’s argument has merit. (See Sexton, supra, 58 Cal.App.4th at p. 1410.) Nevertheless, the Court examines the relevant testimony.

As a preliminary matter, the Court reminds counsel that a deposition is a broad discovery device and there are limited permissible times to instruct a witness not to answer a question. The Court also reminds the parties to follow the civility guidelines for depositions.

Questions 2a,[4] 2b,[5] and 2c,[6] concern whether Defendant drinks socially. According to the Court’s review of the transcript, Defendant already testified that he was not drinking on May 5, 2017 because he does not drink before he works and he worked that day. Plaintiffs seek testimony about Defendant’s alcohol use generally and on the date of the incident. But as demonstrated by the testimony and also his responses to form interrogatories, Defendant already testified that he was not drinking that day and any questions about Defendant’s personal drinking history are irrelevant.

Question 3[7] concerns Defendant’s supervisory responsibilities. According to the Court’s review of the transcript, Defendant later answered questions whether he supervised physician assistants and nurses. These answers are regarding specific components of the “staff.” Defendant’s argument that the original question calls for a legal conclusion is unavailing, especially considering that Defendant could easily clarify. Nevertheless, there does not appear to much value in asking the original question now that Defendant answered the follow-up questions. However, the Court finds it appropriate for Defendant to answer the original question. The Court finds an oral deposition for this specific question is unnecessary and can be easily answered through a written deposition or specific interrogatory.

Question 5[8] concerns Defendant’s supervisory responsibility for Randy Gilman. Defendant testified about his supervisory responsibility for Randy Gilman at other points during the deposition.

Question 6,[9] which are two questions identified with the same number, concerns whether Defendant goes by another name. Defendant objects to this question because he claims the question was asked for harassing reasons. Although there is value in having Defendant answer these questions, Defendant answered a previous form interrogatory stating that he does not go by any other name.

Question 7[10] concerns whether Queen of the Valley pays Defendant’s salary. According to the Court’s review of the transcript, Defendant already testified that he was paid by CEP.

Question 8[11] concerns who would have been responsible for Decedent before Defendant was notified. Defendant’s argument that the original question calls for a legal conclusion is unavailing, especially considering that Defendant could easily clarify. According to the Court’s review of the transcript, Defendant asked for clarification and Plaintiffs’ counsel rephrased the question, with Defendant later testifying that Randy Gilman saw the patient initially. This does not clearly answer the question about who “would have been responsible” and merely provides testimony that Randy Gilman saw her initially. For example, it is possible that Randy Gilman saw her initially but someone else was in charge and/or someone else assisted Randy Gilman or many other possibilities. The Court finds it appropriate for Defendant to answer the original question. The Court finds an oral deposition for this specific question is unnecessary and can be easily answered through a written deposition or specific interrogatory.

Question 9[12] concerns whether an author of another document made an inaccurate entry or was a mistake. According to the Court’s review of the transcript, Defendant testified that he did not do the event that was documented in the note, i.e., the inaccurate entry. This question likely calls for Defendant to speculate and is better positioned to be asked to the author of the document. Nevertheless, Defendant could possibly answer this question if for some reason has knowledge. The objection based on speculation is appropriate at trial. The Court finds it appropriate for Defendant to answer the original question. The Court finds an oral deposition for this specific question is unnecessary and can be easily answered through a written deposition or specific interrogatory.

Question 11[13] concerns whether Defendant supervises Randy Gilman. Defendant testified about his supervisory responsibility for Randy Gilman at other points during the deposition.

Question 14[14] concerns whether Defendant could know about patients Randy Gilman saw. According to the Court’s review of the transcript, Defendant testified during the deposition that answers this question.

Question 15[15] concerns what Defendant’s understanding of his role as supervisor to Randy Gilman. Defendant testified about his supervisory responsibility for Randy Gilman at other points during the deposition.

The Court denies Plaintiffs’ request as to question numbers 2a, 2b, 2c, 5, 6, 7, and 14-15.

The Court grants Plaintiffs’ request as to question numbers 3, 8, and 9.

Whether Question Nos. 12 was a Rhetorical Question

Defendant argues that question number 12 was a rhetorical question that did not need to be answered.

Question 12[16] concerns whether Defendant knew that Decedent died. This question is an abuse of the deposition because Defendant knows that he is being sued in a wrongful death case. Plaintiffs do not respond to this argument other than claiming without explanation that question 12 “was anything but” a rhetorical question. (Opposition 3:2.) The Court treats this failure to oppose an inference that Defendant’s argument has merit. (See Sexton, supra, 58 Cal.App.4th at p. 1410.)

The Court denies Plaintiffs’ request as to question number 12.

Whether Question Nos. 10, 13, and 16 are prohibited by caselaw

Defendant argues that question numbers 10, 13, and 16 are prohibited by caselaw, specifically County of Los Angeles v. Superior Court (1990) 224 Cal.App.3d 1446 (County).

Before addressing the issue, the Court identifies the specific questions. Question 10[17] concerns whether Defendant was surprised to see an entry on a record. Question 13[18] concerns whether Defendant developed an opinion based on looking at the documents what caused Decedent to suffer the consequences of reduced blood flow. Question 16,[19] which are two questions identified with the same number, concerns whether Randy Gilman could have done something different on the day of the incident.

Physicians or other health care providers sued for malpractice must answer questions about the impressions they obtained and the reasons for their behavior at the time of the events in issue. However, questioning goes too far which elicits expert opinions about the deponent’s present opinions or conclusions concerning those events, unless the witness has been designated as an expert. (County, supra, 224 Cal.App.3d at p. 1457.)

Here, Defendant is a treating physician and not a retained expert. Question 10 merely asks for Defendant’s opinion about a medical entry, and not for his expert opinion on causation. Perhaps if Defendant knew the nurse was sloppy he should have questioned her work in this case. The Court finds this question appropriate. Questions 13 and 16 improperly seek to obtain his current impressions and opinions. Plaintiffs incorrectly try to apply Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31 to the case here, which involves a defendant physician who has not been designated as an expert and is being asked about his present day impressions as to causation. Schreiber involved depositions of nonparties who were the treating physicians.

The Court denies Plaintiffs’ request as to question numbers 13 and 16.

The Court grants Plaintiffs’ request as to question number 10. The Court finds an oral deposition for this specific question is unnecessary and can be easily answered through a written deposition or specific interrogatory.

SANCTIONS

Both parties seek monetary sanctions.

“The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc. § 2025.480, subd. (j).)

Plaintiffs seek $7,831.20 in monetary sanctions. This request does not appear in Plaintiffs’ notice of motion, and therefore the notice is improper. (See Code Civ. Proc., § 2023.040 [“A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. . . . .”].). Accordingly, the Court denies Plaintiffs’ request for monetary sanctions at the outset and no further analysis is necessary.

Defendant seeks $2,390.00 in monetary sanctions. Defendant did not entirely prevail and the Court does not find monetary sanctions appropriate. Additionally, the Court notes that Defendant’s counsel improperly instructed Defendant not to answer certain questions. The Court denies several of Plaintiffs’ requests not because Defendant made proper objections, but because ordering Defendant to testify again on certain issues is a waste of time.

CONCLUSION

The Court grants Plaintiff’s motion in part. Defendant is to answer the following questions either through a written deposition or interrogatories: 3, 8, 9, and 10.

The Court denies Defendant’s request for monetary sanctions.
The Court denies Plaintiff’s request for monetary sanctions.

[1] Most of the defendants are no longer in this case. The only remaining defendants in this action are Defendant and Randy Gilman, P.A.

[2] I’m curious — do you do — do you have any hobbies?

[3] So would you talk to Randy?

[4] You said you drink socially.

[5] All right. Were you drinking on May 5th, 2017?

[6] Do you go drinking with your friends on Cinco de Mayo?

[7] Are you responsible for overseeing any of the staff at Queen of the Valley?

[8] And are you responsible for Randy Gilman, or is that an unusual question as well to you? Because maybe I’m misunderstanding how the roles work. I’m just trying to figure it out.

[9] You’ve never used another name, right? . . . Have you used a different name other than Shun Pa?

[10] Does Queen of the Valley pay your salary?

[11] Who would have been responsible then for Mrs. Gaspar before you were notified?

[12] And she wouldn’t put notes in there that were inaccurate unless she did something —or could this be a mistake? Because it says, “was seen and examined by Dr. Pa 02:23.

[13] Do you supervise Randy Gilman?

[14] Okay. So it would be relatively impossible for you to know, unless you check every patient that Mr. Gilman was examining while you guys were on simultaneous shills?

[15] Okay. What is your understanding of your role as a supervisor to Randy Gilman?

[16] You know that the young girl passed away, right?

[17] Are you surprised to see that the Nurse Gonzales made that entry?

[18] Looking at the documents today, you’re not in the high stress situation. Have you developed an opinion as to what caused Sarah Gaspar to suffer those consequences?

[19] Could Randy Gilman have done anything different that day? . . . You don’t have an opinion to that?