Case Number: 19STCV23435 Hearing Date: February 19, 2020 Dept: 31

PLAINTIFF’S MOTION TO COMPEL DEPOSITION IS GRANTED.

Background

On July 5, 2019, Plaintiff Amanda Martinez filed the instant action against Defendant Good Neighbor Clinic and Does 1 through 20. The Complaint asserts causes of action for:

Discrimination in Violation of Gov’t Code §§ 12940, et seq.;

Retaliation in Violation of Gov’t Code §§ 12940, et seq.;

Failure to Prevent Discrimination and Retaliation in Violation of Gov’t Code § 12940(k);

Declaratory Judgment;

Retaliation (Lab. Code §§ 98.6, 1030, et seq.); and

Wrongful Termination in Violation of Public Policy.

Plaintiff moves for an order compelling the deposition of Defendant’s Person(s) Most Knowledgeable (“PMK”) and for an award of monetary sanctions against Defendant and its counsel of record, Leslie McAfee and the Law Offices of Leslie McAfee in the amount of $7,820.10.

Legal Standard

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action.¿(Code of Civ. Proc., § 2025.010.)¿A properly served deposition notice is effective to require a party or party-affiliated deponent to attend and to testify, as well as to produce documents for inspection and copying.¿(Code of Civ. Proc., § 2025.280, subd. (a).)¿¿

“If, after service of a deposition notice, a party . . . fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving notice may move for an order compelling deponent’s attendance and testimony, and the production . . . of any document . . . described in the deposition notice.”¿¿(Code of Civ. Proc., § 2025.450, subd. (a).)¿The motion must set forth both facts showing good cause justifying the demand for any documents and a meet and confer declaration.¿(Code of Civ. Proc., § 2025.450, subds. (b)(1), (b)(2).)

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. (Code of Civ. Proc., § 2025.450(g)(1).)

Request for Judicial Notice

The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and (h).)

Plaintiff requests that the Court take judicial notice of the following documents:

Exhibit A: the Decision and Order of the Medical Board of California, Department of Consumer Affairs, State of California: In the Matter of the Second Amended Accusation and Petition to Revoke Probation Against Dr. Davidson., Case No. D1-2005-167389, (May 6, 2015, Eff. June 5, 2015);

Exhibit B: the Medical Board of California Licensing Details for A56075, Daniel Shane Sheibani Davidson;

Exhibit C: the Medical Board of California Licensing Details for A31491, Mahin Esfahani Zandi;

Exhibit D: the Imperial Health Plan of California (HMO) (HMO SNP): 2020 Provider/Pharmacy Directory; and

Exhibit F: a printout of Google Maps of Defendant Good Neighbor Clinic.

The request is GRANTED.

Evidentiary Objections

Plaintiff submits an objection to an exhibit attached to the Declaration of Leslie S. McAfee. The objection is OVERRULED.

Discussion

The Court notes at the outset that Plaintiff has requested that an evidentiary hearing be held to determine fact issues raised by Defendant’s opposition to the instant motion. The Court finds that the evidentiary issues purportedly raised by Defendant’s opposition are immaterial to the Court’s disposition on the motion. Accordingly, the Court declines Plaintiff’s request for an evidentiary hearing.

Deposition of Defendant’s PMK

Plaintiff moves for an order compelling the deposition of Defendant’s PMK. Plaintiff asserts that on November 2, 2019, the parties agreed for Defendant’s PMK, identified as Dr. Daniel Davidson (hereinafter “Davidson”), to appear for deposition on November 7, 2019. (Perez-Casillas Decl. ¶ 4; Guerra Decl. ¶ 2, Exh. 1.) Plaintiff contends that the parties agreed to reschedule the noticed deposition, and on November 26, 2019, Defendant’s counsel advised that his client was available on December 5, 2019 and December 6, 2019. (Guerra Decl. ¶ 3.) Plaintiff argues that a confirmatory email was sent to Defendant agreeing to the deposition date of December 6, 2019. (Perez-Casillas Decl. ¶ 5; Guerra Decl. ¶ 3, Exh. 2.) Plaintiff asserts that on December 4, 2019, Plaintiff served Defendant with an amended deposition notice. (Perez-Casillas Decl. ¶ 6, Exh. 3.)

Plaintiff contends that on December 6, 2019, Plaintiff and Defendant’s counsel appeared for Davidson’s deposition; however, no appearance was made by Defendant’s PMK. (Perez-Casillas Decl. ¶ 7; Guerra Decl. ¶ 4.) Plaintiff argues that as a result, an affidavit of non-appearance was obtained. (Perez-Casillas Decl. ¶ 7, Exh. 4.) Plaintiff asserts that costs associated with the non-appearance was $610.10. (Perez-Casillas Decl. ¶ 11, Exh. 6.) Plaintiff contends that as of the date of filing, on January 21, 2020, Defendant has made no attempts to reschedule the deposition. (Perez-Casillas Decl. ¶ 8.) Plaintiff argues that on January 18, 2020, following Defendant’s PMK’s non-appearance, Plaintiff’s counsel made inquiry of Defendant’s counsel with respect to the non-appearance. (Perez-Casillas Decl. ¶ 9; Exh. 5.)

In opposition, Defendant argues that the deposition is currently scheduled for February 24, 2020, rendering the instant motion moot. (McAfee Decl. ¶ 31, Exh. 11.) Defendant asserts that additionally, in the email that accompanied the “final” notice of deposition sent on December 4, 2019, just 2 days before the deposition was due to commence, there was nothing to indicate that the time had changed from 10:00 am to 9:00 am or that the location for the deposition had changed. (McAfee Decl., Exh. 1.)

Defendant contends that moreover, Plaintiff failed to comply with the meet and confer requirement ascribed by Section 2025.250(b)(2).

The Court finds that the deposition of Defendant’s PMK was agreed to on November 26, 2019, and memorialized in a notice sent on December 4, 2019. While Defendant argues that the notice of deposition listed a different time and address than that previously discussed, the fact remains that Defendant’s PMK did not show for the deposition at either time or location.

The Court also finds that Plaintiff contacted Defendant inquiring about the nonappearance and to date, Defendant has not produced its PMK for deposition.

Based on the foregoing, Plaintiff’s motion to compel deposition of Defendant’s PMK is GRANTED.

Monetary Sanctions

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. (Code of Civ. Proc., § 2025.450(g)(1).)

Plaintiff seeks monetary sanctions against Defendant and its counsel of record, Leslie McAfee and the Law Offices of Leslie McAfee, in the amount of $7,820.10 consisting of 8.5 hours associated with preparing for and attending the December 6, 2019 deposition, meeting and conferring with Defendant’s counsel, and drafting the moving papers, an anticipated 3 hours spent reviewing the opposition and preparing a reply, and 2 hours spent attending the hearing on the motion billed at a rate of $400 per hour, plus an additional 3.5 hours spent meeting and conferring billed at a rate of $500 per hour, and the additional $60 filing fee and $610.10 for the certificate of non-appearance. In reply, Plaintiff seeks an additional $1,350.00 in sanctions consisting of an additional 3 hours preparing the reply.

In opposition, Defendant argues that it acted with substantial justification and the circumstances surrounding the nonappearance and leading up to the instant motion makes the imposition of sanctions unjust. Defendant asserts that communications between counsel prior to the non-appearance demonstrates cooperation and efforts to accommodate the discovery and taking of the PMK deposition by Defendant.

Defendant contends that Plaintiff’s counsel was advised of the medical issues concerning the designated PMK well prior to the December 6, 2019 deposition and Plaintiff’s counsel sought to confirm the deposition the day prior because of the knowledge that Davidson had significant medical issues as a result of a surgical complication. Defendant argues that additionally, Defendant’s counsel made numerous attempts to contact the deponent to confirm the deposition.

Defendant asserts that in responding to Plaintiff’s counsel’s demand for new dates for the PMK’s deposition in a January 20, 2020 telephone conversation, Defendant’s counsel responded the next day. Defendant contends that the reason why Davidson did not appear at this deposition was due to a serious and potential career-ending medical condition resulting from a complication from a surgical procedure to his right arm. Defendant argues that as a result of Davidson’s psychological and medical issues, Davidson failed to appear at his deposition, the nonappearance was unintentional, and Davidson always intended to cooperate and appear. Defendant asserts that Davidson offered to cover the costs of the reporter for the non-appearance and offered to appear the same week counsel made the inquiry for a new date.

In reply, Plaintiff disputes the fact that Davidson was as deeply impacted by any alleged surgery as defense counsel purports he was, that Davidson was at a medical appointment which caused him to miss the deposition, and the timing of when defense counsel allegedly apprised Plaintiff’s counsel of Davidson’s medical condition. Plaintiff additionally argues that the note provided by Dr. Mahin Zandi, attesting to the fact that Davidson has been depressed and has missed many appointments due to a surgery on his right upper arm, should be disregarded due to the questionable relationship between Davidson and Zandi.

The Court finds that despite the dispute between the parties regarding what exactly occurred leading up to and following Davidson’s non-appearance, it is clear that Defendant’s PMK was never produced for deposition and to date has not been produced. Accordingly, the Court finds that Defendant and counsel did not act with substantial justification in failing to produce Defendant’s PMK and that there are no other circumstances that would make the imposition of sanctions unjust.

Still, the Court finds that the amount of sanctions is excessive and thus unreasonable. First, Plaintiff is not entitled to recover fees for time spent meet and conferring prior to filing the instant motion. Plaintiff is only entitled to the fees associated directly with the motion. Moreover, Plaintiff may not recover the additional fees sought, as Plaintiff did not adequately give notice of such sanctions in the initial notice of motion. The Court thus awards reduced sanctions in the amount of $2,670.10 consisting of 1 hour spent preparing the moving papers, 3 hours spent reviewing the opposition and preparing a reply, and 1 hour spent attending the hearing billed at a rate of $400 per hour plus the $60 filing fee and $610.10 for the certificate of non-appearance.

Conclusion

Plaintiff’s motion to compel deposition of Defendant’s PMK is GRANTED. Defendant is ordered to produce its PMK for deposition on February 24, 2020. Defendant and its counsel of record, Leslie McAfee and the Law Offices of Leslie McAfee, are ordered to pay sanctions in the amount of $2,670.10 within thirty (30) days.

Moving party to give notice.