Case Number: KC065457    Hearing Date: July 10, 2014    Dept: J

Re: Azike Ntephe, etc., et al. v. Dr. Ali Mesiwala, etc., et al. (KC065457)

MOTIONS TO COMPEL THE DEPOSITIONS OF: (1) DEFENDANT ALI MESIWALA, M.D.; AND (2) DEFENDANT GOWRIHARAN THAIYANANTHAN, M.D.

Moving Parties: Plaintiffs Azike Ntephe and Diane Fencl

Respondents: Defendants Ali Mesiwala, M.D. and Gowriharan Thaiyananthan, M.D.

POS: Moving OK; Opposing OK; Replies OK

Plaintiff Azike Ntephe alleges that he underwent surgery for a multiple level decompression fusion by his neurosurgeon, Defendant Ali Mesiwala on 10/16/09. Plaintiff alleges that Dr. Mesiwala installed a spinal cage, rods and screws that came from a medical device company in which Dr. Mesiwala had a financial interest without disclosure, and that concealed the fact that there were problems with the procedure. Plaintiffs commenced this action on 1/18/13. The First Amended Complaint, filed on 5/9/13, asserts causes of action for:

1. Fraudulent Concealment
2. Breach of Fiduciary Duty
3. Failure to Obtain Informed Consent
4. Intentional Misrepresentation
5. Medical Negligence
6. Violation of Bus & Prof C § 17200
7. Loss of Consortium

The Trial Setting Conference is set for 7/10/14.

Plaintiffs Azike Ntephe and Diane Fencl (collectively “Plaintiffs”) move pursuant to CCP §§ 2025.450, 2017.010, 2023.010 and 2025.290(b)(5) to compel Defendant Ali Mesiwala (“Dr. Mesiwala”) to appear for deposition on a date certain to be determined by the court, to produce documents requested in the deposition notices, and for sanctions in the mount of $11,832.50 pursuant to CCP § 2025.450(c) against Dr. Mesiwala and his counsel.

Plaintiffs also move to compel Defendant Gowriharan Thaiyananthan (“Dr. Ty”) to appear for deposition on a date certain to be determined by the court, to produce documents requested in the deposition notices, and for sanctions in the mount of $2,790.00 pursuant to CCP § 2025.450(c) against Dr. Ty and his counsel.

PLAINTIFF’S EVIDENTIARY OBJECTIONS:

Objections 1 through 4 to the Declaration of Danielle Blauvelt are overruled. Objections 1 and 2 to the Declaration of Leesa Lund are overruled. The objections to Dr. Mesiwala’s opposition to Plaintiffs’ Separate Statement are overruled.

MOTIONS:

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 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 or tangible thing described in the deposition notice. (CCP § 2025.450(a).) If the motion is granted, the court shall impose a monetary sanction, 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(c).)

DEPOSITION OF DR. MESIWALA:

Plaintiffs contend that Defendant has continued to evade his obligation to comply with Plaintiffs’ deposition notice which Plaintiffs originally served on November 15, 2013, more than seven months ago. They argue that after a long period of stall tactics, Defendant finally agreed to appear and provide documents on May 20, 2014 at the office of his counsel. (Motion, Dybnis Decl. ¶ 7, Exh. P.) On that day, Plaintiffs’ counsel appeared at defense counsel’s office with a videographer and stenographer but neither Defendant nor his counsel appeared or produced a single document. (Id. ¶ 10.) Plaintiffs contend that they have good cause to seek testimony and documents from Defendant as they are relevant and necessary for Plaintiffs to proceed with future discovery and central to Plaintiffs’ case in chief.

Plaintiffs further represent that Defendant made no valid objection to the May 30, 2014 deposition and no valid objection to any of the document requests in the notice of deposition. Counsel for Plaintiffs contacted counsel for Defendant inquiring about the nonappearance and counsel for Defendant wrote back and simply stated that he had nothing more to add regarding why Defendant did not appear outside of what he already wrote in his prior correspondence. (Id. ¶ 11, Exhs. S-T.) However, the only prior correspondence on the subject that Plaintiffs’ counsel received was a May 29, 2014 fax in which Defendant requested that Plaintiffs enter into a protective order prior to conducting the deposition. (Id. ¶ 9.) As Plaintiffs explained in prior correspondence, they were more than willing to enter a reasonable protective order prior to the deposition’s start time or at the deposition itself. (Id. ¶ 12, Exh. V.)

Defendant, in opposition, contends that Plaintiffs make numerous false allegations about the conduct of Dr. Mesiwala and his counsel in this matter, and explain that the delays in this case were primarily the result of the case being transferred between the Pomona courthouse and Stanley Mosk and the petition to compel arbitration that was pending in this case. (Opposition, Blauvelt Decl. ¶¶ 3-5.)

Defense counsel explains that very shortly before Defendant’s scheduled deposition of May 30, 2013, he was contacted by Defendant’s personal counsel who requested to see a copy of the deposition notice. (Id. ¶ 9.) The deposition notice was provided to Defendant’s personal counsel who then requested that Defendant not be produced for deposition until a protective order is in place. (Id. ¶ 15.) Immediately upon learning this, defense counsel Mr. Fesler sent a letter via facsimile to Plaintiffs’ counsel stating that upon the advice of Defendant’s personal attorneys, Defendant’s deposition could not proceed without a protective order. (Id., Exh. G.) Mr. Fesler dictated this letter shortly before he had to leave the office for an expert deposition in another case and prior to leaving the office, he instructed his assistant to transcribe the dictation and then immediately send the letter to Plaintiffs’ counsel. (Id., Lund Decl. ¶ 8.) Apparently, after receiving the letter Plaintiffs’ counsel attempted to call defense counsel’s office to further discuss the issue, but was told that defense counsel had left the office. (Id. ¶ 9.) Plaintiffs’ counsel continued faxing letters to defense counsel’s office, including a letter stating that, unless he was advised otherwise, he would plan with proceeding with deposition, despite his knowledge that no attorney was available to review and respond to his phone calls and letters.

At approximately 6:30 p.m. on May 29, 2014, Mr. Fesler sent Plaintiff’s counsel an email confirming that the deposition would not be proceeding on May 30, 2014. (Id., Blauvelt Decl., Exh, H.) Unfortunately, unbeknownst to Mr. Fesler, he made a typographical error entering Plaintiff’s counsel’s email address and the email was never delivered. (Id. Exh. I.)

Despite their knowledge that no protective order had been agreed to and defense counsel’s representation that Defendant would not be produced without a protective order in place, plaintiffs’ counsel appeared for the deposition.

Defendant submits evidence that on June 23, 2014, defense counsel forwarded the proposed stipulated protective order to Plaintiff’s counsel. (Id., Blauvelt Decl., Exh, J.) On the afternoon of June 25, 2014, Plaintiffs’ counsel responded that the proposed protective order is too restrictive and Plaintiffs should be allowed to participate in determining which documents are confidential. (Ibid.)

Defendant also submits evidence that on May 29, 2014, defense counsel served objections to the request for production of documents that accompanied the notice of Defendant’s deposition. (Id., Exh. K.) The objections were admittedly served in an untimely manner. However, the late service was the result of inadvertent error and if necessary, defense counsel will seek relief pursuant to CCP § 473. (Id. ¶¶ 10-14.)

It is Defendant’s intention to produce Defendant for deposition once a protective order is in place, either by way of stipulation or court order. (Id. ¶ 21.) Defendant contends that a protective order is needed because Plaintiffs’ request seeks many confidential, financial documents, in addition documents that may be subject to confidentiality, privacy and privilege protections. Defendant is concerned that the subject documents may end up being publicly released. This belief is based upon the fact that Defendant and his counsel were contacted by a reporter, Karen Foshay, about this case. On June 18, 2014, Ms. Foshay’s article about PODs and Mr. Ntephe’s case was published on the internet. (Exh. M.) In just the past week, defense counsel has received telephone calls from reporters from NPR and the Los Angeles Times requesting comments on the Ntephe matter. (Id. ¶¶ 22-24, Exhs. L-M.)

Based on the representations above, the court directs counsel for the parties to meet and confer before the matter is called for calendar and stipulate to a protective order and set a date for Dr. Mesiwala’s deposition. If the parties are unable to come to a resolution, then the motion will be continued to allow Defendant an opportunity to file and serve motions for protective order and for relief pursuant to CCP § 473.

It appears that sanctions against Defendant and his counsel are not warranted under the circumstances. Defendant, however, is ordered to reimburse Plaintiffs for the videographer and stenographer costs incurred as a result of Defendant’s late cancellation.

DEPOSITION OF DR. TY:

Plaintiffs also move for an order compelling Defendant Ty Thaiyananthan (“Dr. Ty”) to appear for deposition on a date certain to be determined by the court, to produce documents requested in the deposition notices, and for sanctions in the amount of $2,790.00 against Defendant and his counsel.

Plaintiffs contend that an order compelling Defendant’s deposition and production of documents is proper under the law and necessary given Defendant’s failure to appear on the date and time he provided at the location he chose without any timely objection or justification and less than 24 hours’ notice. Defendant has made no valid objection to the June 11, 2014 deposition and no valid objection to any of the document requested in the notice of deposition.

Plaintiffs represent that Defendant agreed to appear for a deposition on June 11, 2014, but that the day before the deposition was to proceed, Defendant informed Plaintiffs that he would not appear for his deposition. (Motion, Dybnis Decl. ¶ 10, Exhs. AA.) He claimed that he would not appear because he required that Plaintiffs enter into a protective order, a condition that he had not previously mentioned. (Ibid.)

Defendant, in opposition, contends that on June 10, 2014, defense counsel informed Plaintiffs’ counsel that Defendant would not be produced for deposition on June 11, 2014 for two reasons: (1) no valid notice of deposition had been served, and (2) in reviewing the request for production served with the notice of deposition for the December 4, 2013, which Plaintiffs’ counsel claimed was the operative request, defense counsel realized that a protective order would also be needed for Defendant because Plaintiffs were seeking production of confidential financial documents and business agreements, among other documents. (Opposition, Blauvelt Decl. ¶¶ 11-13.)

Defendant further represents that on June 23, 2014, defense counsel forwarded the proposed stipulated protective order to Plaintiff’s counsel. On the afternoon of June 25, 2014, Plaintiffs’ counsel responded that the proposed protective order is too restrictive and Plaintiffs should be allowed to participate in determining which documents are confidential. (Id. ¶¶ 15-16, Exh. I.) It is Defendant’s intention to produce Defendant for deposition once a protective order is in place, either by way of stipulation or court order. (Id. ¶ 17.)

Again, based on the representations above, counsel for the parties are directed to meet and confer before the matter is called for calendar and stipulate to a protective order and set a date for Dr. Ty’s deposition. If the parties are unable to come to a resolution, then the motion is denied because it appears that Plaintiffs did not serve a notice of deposition or notice of continuance of deposition for the June 11, 2014 date. (See Opposition, Blauvelt Decl. ¶¶ 10-12.)

Sanctions are not warranted. It appears that there was no valid notice of deposition with request for production of documents served upon Defendant. Therefore, Defendant was under no obligation to appear at deposition and produce documents.