Case Name: TAYLOR V. COMMUNITY HOSPITAL OF LOS GATOS, ET AL.
Case No: 1-12-CV-226063

The motion of defendant Steven Batanides, M.D. (“Dr. Batanides”), joined by defendants Golden State Ambulance, Inc., Good Samaritan Hospital, and Kelly Ryan, RN, to compel Aleatha Taylor (“Mrs. Taylor”), the mother and guardian ad litem of plaintiff Benjamin John Taylor (“Plaintiff”), to submit to a deposition and to produce the documents described in the deposition notice, and for an order that the deposition not be subject to the time limit set forth in Code of Civil procedure section 2025.290 came on for hearing before the Honorable Mary E. Arand on May 29, 2014, at 9:00 a.m. in Department 9.

Dr. Batanides served Mrs. Taylor with a notice of deposition on four separate occasions. On each occasion, shortly before the deposition was scheduled to take place, Plaintiff’s counsel unilaterally canceled the deposition. After Plaintiff’s counsel cancelled each deposition, counsel for Dr. Batanides contacted Plaintiff’s counsel in an effort to schedule the deposition on a mutually agreeable date that worked for both Plaintiff and the 19 separate defendants (represented by nine law firms) in this case. Plaintiff’s counsel did not respond to Dr. Batandies’ counsel’s letters or telephone messages.

Mrs. Taylor concedes that the defendants can and should be able to take her deposition in this case. Nevertheless, she opposes the motion, arguing that the requested deposition “can only be taken based upon her limited ability to be away from caring for her son and subject to the health of [Plaintiff] and his intense and ongoing 24 hours care.” (Decl. of Eric Hartman in Support of Opp., ¶ 5.) According to Plaintiff’s counsel, Plaintiff “is essentially a ‘rag doll’ and . . . functions only as a ‘puppet’ in which his movements are totally accomplished by external means thru his care givers and assistants.” (Id., ¶ 11, underlining omitted.) Plaintiff’s counsel further declares that “[m]ultiple surgeries are required on various parts of his body at ‘windows of opportunity’ to keep minor Benjamin to be able to sit in a vertical position and not restricted to a horizontal position which would greatly shorten his life and quality of life.” (Id.) The latest of these procedures took place on May 19, 2014, during which Plaintiff underwent bilateral hip surgery.

It is Mrs. Taylor’s position that she is required to provide care to her son “24/7” and that the deposition would jeopardize her son’s health. (Id., ¶ 10.) Given Plaintiff’s condition, and the fact that Plaintiff and his parents live in Rancho Cordova, north of Sacramento, Mrs. Taylor asserts that her deposition should only be allowed upon the following conditions: “(1) Care-Giver attendants be hired to take care of Benjamin during his mother’s deposition and paid for by Defendants; (2) Deposition be taken close to the home of Benjamin Taylor in Rancho Cordova, Sacramento area (real close to the home); (3) 7 hours maximum deposition of mother Aleatha Taylor; (4) deposition taken when it is considered safe by the treating surgeon that minor Benjamin’s condition will permit substitute Care Givers for a limited time for the mother Aleatha Taylor’s deposition (one deposition 7 hours maximum).” (Id., ¶ 17.)

Dr. Batanides has met all of the requirements to compel Mrs. Taylor’s deposition under Code of Civil Procedure section 2025.450, which requires the moving party to show that he or she served the responding party with the deposition notice, that the party failed to appear, and that, following the failure to appear, the moving party contacted the deponent to inquire about the nonappearance. (Code Civ. Proc. [“CCP”], § 2025.450, subd. (b)(2); see also Leko, supra, 86 Cal.App.4th at p. 1124.)

Mrs. Taylor’s repeated cancellation of the noticed depositions was improper. The service of a deposition subpoena is effective to require any witness to appear and testify at a deposition at the location, date, and time specified in the subpoena. (See CCP, § 2025.280, subd. (b).) Nothing in the Code requires a party serving a deposition subpoena to clear the date of the subpoena with the deponent before serving the notice. Conferring with a witness as to his or her availability for the deposition is recommended by the Santa Clara County Bar Association Code of Professionalism, but the failure to clear the date with the deponent does not render the notice inoperative.

The last amended notice of deposition was served on Mrs. Taylor on March 19, 2014. Mrs. Taylor was legally obligated to attend on the date specified in the notice. If she had a conflict on the date specified in the notice, the proper recourse was to file a motion for a protective order under section 2025.420, which provides a non-exhaustive list of potential remedies that the court may grant, including, among others, that the deposition be cancelled altogether, that the deposition be taken at a different time or place, and that the deposition be taken only on certain specified terms and conditions. (CCP, § 2025.420, subd. (b)(1), (2), (3), & (5).) Mrs. Taylor did not exercise her right to file a motion for a protective order. She was therefore obligated to attend the deposition on April 30, 2014. Therefore, Dr. Batanides is entitled or an order compelling Mrs. Taylor’s attendance at a deposition.

Dr. Batanides’ motion, as it pertains to the requested documents, is premature. As indicated above, the service of a deposition notice is effective to require any witness to appear and testify at a deposition at the location, date, and time specified in the notice “as well as to produce any document . . . or tangible thing for inspection.” (See CCP, § 2025.280, subd. (a).) The statute contemplates that a deponent asked to bring documents to the deposition for inspection may object to the production of such documents at the deposition itself. (See Carter v. Sup. Ct. (1990) 218 Cal.App.3d 994, 997 [noting that procedure relating to inspection demands “is quite different from a deposition at which a party is required to bring documents”].)

Once the party appears for the deposition and either objects to the document requests or simply fails to produce them, the requesting party then may file a motion to compel production. (See Carter, supra, 218 Cal.App.3d at p. 997.) This procedure is consistent with California Rule of Court, rule 3.1345(a)(5), which requires a motion to compel production of documents or tangible things at a deposition to be accompanied by a separate statement setting forth the particular documents or demands at issue, the responses received, and the reasons why production should be compelled. Given that the motion to compel production of documents is premature, it is not surprising that Dr. Batanides has not submitted a separate statement in compliance with rule 3.1345(a)(5)—until the deposition takes place, he will not be in possession of all of the information required to be included in the separate statement.

As to the time limit for the deposition, under Code of Civil Procedure section 2025.290, “a deposition examination of [a] witness by all counsel, other than the witness’ counsel of records, shall be limited to seven hours of total testimony.” The section goes on to state, however, that “[t]he court shall allow additional time, beyond any limits imposed by this section, if needed to fairly examine the deponent.” (CCP, § 2025.290, subd. (a).)

Dr. Batanides argues that 7 hours is not enough time to fairly examine Mrs. Taylor. In support of this position, Dr. Batanides points out that Mrs. Taylor is the principal percipient witness for Plaintiff’s claims, that Plaintiff has named nineteen separate defendants (represented by none separate law firms) in his complaint and that a deposition of 7 hours would limit each defendant to 23 minutes of questioning. (Mem. of Ps & As in Support of Mot., p. 9-10.) Dr. Batanides further indicates that “Defendants’ counsel will not under any circumstances subject Mrs. TAYLOR to repetitive, harassing, or irrelevant questioning.” (Id., p. 10.)

The Court agrees, and finds that Dr. Batanides has demonstrated that the 7-hour time limit imposed by section 2025.290 would not allow all 19 of the defendants to fairly examine Mrs. Taylor. The Code therefore requires that the Court allow additional time. Dr. Batanides has not, however, specified how much additional time is needed, indicating that, “[w]ith nineteen defendants represented by nine separate firms, it is impossible to determine in advance how much time will be required.” (Mem. of Ps & As in Support of Mot., p. 10.) While the statute does authorize additional time, the existence of the 7-hour presumptive time limit suggests that any additional time granted should not be unlimited. It appears that an additional day of deposition time is a reasonable starting point. If the defendants cannot complete the deposition within that amount of time, they may seek further relief from the Court.

Based upon the above discussion, Dr. Batanides’ motion to compel Mrs. Taylor to comply with her notice of deposition is GRANTED IN PART and DENIED IN PART. The motion is GRANTED as to Dr. Batanides request that the Court compel Mrs. Taylor’s attendance at a deposition. The motion is DENIED as to the request to compel the production of documents. The motion is also GRANTED as to the request for relief from the 7-hour time limit contained in Code of Civil Procedure section 2025.290, and the defendants shall be given two 7-hour days in which to complete Mrs. Taylor’s deposition.

Accordingly, Mrs. Taylor shall submit to two 7-hour days of deposition testimony within 20 calendar days of the filing of the written order on this matter on a date and time mutually agreed upon by all parties. The Court finds Mrs. Taylor’s request as to the location of the deposition to be reasonable. The parties shall meet and confer to agree on a date for the deposition prior to the hearing, and if unable to agree, the Court will set the date.
The Court will prepare the order.