Sarullo v. Dignity Health
Case No: 18CV05794
Hearing Date: Tue Jun 11, 2019 8:30

Nature of Proceedings: Motion to Compel Deposition and Documents

Charles Sarullo (“Charles”) was admitted to Dignity Health, a skilled nursing facility operated by Marian Regional Medical Center, from October 24, 2018 to November 6, 2018, for rehabilitation for a right hip fracture. On November 6, 2018, he fell while attempting to transfer himself to the restroom unassisted. He was transferred to Marian Regional Medical Center, where it was discovered that as a result of the fall, Charles suffered multiple fractures to his left hip. On November 10, 2018, he passed away.

On November 21, 2018, this complaint was filed by Charles’ successor in interest, Lee Levins, against Dignity Health, alleging the following causes of action: (1) elder abuse; and (2) negligent hiring and supervision. On April 16, 2019, the court set aside the default of Dignity Health and its answer was filed.

On March 28, 2019, plaintiff’s counsel personally served the Notice of Deposition of the person most knowledgeable of Dignity Health in 19 categories, with a demand for production of documents in 54 categories. Deposition was unilaterally set for April 10, 2019, in Long Beach. On April 5, 2019, Dignity Health timely served objections to the Notice of Deposition on the following grounds: (1) that plaintiff unilaterally selected a deposition date on which defense counsel was unavailable; (2) that the deposition notice was untimely pursuant to Code of Civil Procedure section 2025.270; and (3) that the location of the deposition was in excess of the mileage limitation set forth in Code of Civil Procedure section 2025.240.

Motion Premature

If, after service of a deposition notice, a party to the action, or the person designated most knowledgeable, without having served a valid objection, 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 the deponent’s attendance and testimony, and the production for inspection of any document described in the notice. (Code Civ. Proc. § 2025.450.)

Here, plaintiff concedes that Dignity Health served a valid objection to the designated location of the deposition. On April 10, 2019, plaintiff sent a letter to Dignity Health stating: “As it pertains to your final objection relating to the deposition location, I would agree.” (Motion, Exh. 8.) Thus, a valid objection has been served and conceded. The motion to compel is premature.

Meet and Confer Efforts Inadequate

Code of Civil Procedure section 2025.450 subdivision (b)(2) provides that the motion must be accompanied by a meet and confer declaration, or, when the deponent fails to attend the deposition and produce documents, a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance. A meet and confer declaration in support of a motion “shall state facts showing a reasonable and good faith attempt at an informal resolution.” (Code of Civ. Proc., § 2016.040.)

Here, plaintiff sent two letters in response to the objections. The first is dated April 10, 2019. This letter was served by facsimile. It conceded the merits of Dignity Health’s objection to the location of the deposition. Plaintiff offered to reschedule depositions in San Francisco (without explanation as to the suitability of the location) and offered eleven alternate dates between April 17 and May 15, 2019. Plaintiff gave Dignity Health two days within which to respond.

The second letter is dated May 2, 2019. In this letter, plaintiff advised that it intended to file a motion to compel by the close of business on May 3, 2019, and offered four dates for deposition between May 7 and May 15, 2019.

The timing and deadlines imposed by these efforts lead the court to conclude that they do not qualify as a reasonable and good faith attempt at informal resolution. They are demands, without reasonable time for response. Absent a reasonable attempt at resolution, the court will not entertain this motion.

The motion is denied without prejudice. Pursuant to California Rules of Court, 3.1308 (a)(1) and Santa Barbara County Superior Court Local Rule 1301(b), the court does not require a hearing; oral argument will be permitted only if a party notifies all other parties and the court by 4:00 p.m. (Department 2) the day before the hearing of the party’s intention to appear. This tentative ruling will become the ruling of the court if notice of intent to appear has not been given. If no hearing is held, defendant is directed to provide a proposed order and judgment for signature commensurate with this tentative, with appropriate notice to defendant pursuant to California Rules of Court rule 3.1312, which will then be entered by the court.