Kimberly Ramirez vs Fisher Scientific Company LLC
Case No: 18CV04618
Hearing Date: Wed Jun 12, 2019 9:30

Nature of Proceedings: Case Management Conference; Compel Depositions

Tentative Ruling: The court grants plaintiffs Kimberly Ramirez and Christopher Greeley’s motion to compel the depositions of the following employees of defendant Fisher Scientific Company, LLC: 1) George Chismar; 2) Person Most Knowledgeable (“PMK”) re: bottling of sulfuric acid in plastic coated bottles; 3) PMK re: communication with La Cumbre Junior High School as to the purchase of the subject bottle of sulfuric acid; 4) PMK re: the distribution process of the subject bottle of sulfuric acid; and 5) PMK re: the subject incident. At the hearing, the court will ask the parties to agree to the dates, times, and places of the depositions. Absent an agreement, the court will set the dates, times, and places of the depositions. The court imposes a monetary sanction on defendant Fisher Scientific Company, LLC, and its counsel, Michael C. Douglass and the law firm of Wilson Elser Moskowitz, Edelman & Dicker LLP, in the amount of $4,460, payable on or before June 24, 2019.

Background: Plaintiffs Kimberly Ramirez and Christopher Greeley filed a complaint against defendant Fisher Scientific Company, LLC, asserting causes of action for products liability and general negligence. Plaintiffs allege that Ramirez, a science teacher at La Cumbre Junior High School, was injured when a glass bottle of sulfuric acid, manufactured and or distributed by defendant, shattered. The spilled sulfuric acid caused her to slip and fall.

Motion: Plaintiffs move to compel the depositions of the following employees of defendant: 1) George Chismar; 2) Person Most Knowledgeable (“PMK”) re: bottling of sulfuric acid in plastic coated bottles; 3) PMK re: communication with La Cumbre Junior High School as to the purchase of the subject bottle of sulfuric acid; 4) PMK re: the distribution process of the subject bottle of sulfuric acid; and 5) PMK re: the subject incident. Plaintiffs also seek a monetary sanction against defendant and its counsel in the amount of $4,460. Defendant opposes the motion.

1. Facts: Beginning on March 6, plaintiffs’ counsel communicated regarding Chismar’s and PMK depositions. Defendant’s in-house lawyer was unavailable until March 18 and, on March 25, defendant’s counsel communicated that the internal process of identifying PMKs had begun. Also, on March 25, defendant’s counsel sent a “meet and confer letter” seeking, inter alia, clarification of PMK descriptions. Plaintiffs’ counsel responded to that on April 1 and said that, if she did not receive PMK identities and availability by April 5, she would unilaterally notice the depositions.

On April 9, plaintiffs’ counsel noticed five depositions of defendant’s employees for May 7 and 8 in El Segundo. On April 11, plaintiffs’ counsel sent an email explaining why she sent the notices. Later that same day, defendant’s counsel wrote that he did not intend to produce any PMK witnesses until plaintiffs complied with their obligation to provide full and complete discovery responses without objection. (On April 5, 2019, defendant had filed and served five separate motions to compel further responses from plaintiffs to five sets discovery. Those were later taken off calendar when plaintiffs provided supplemental responses.)

On April 15, plaintiffs’ counsel responded saying plaintiffs were not willing to wait any longer to depose the employees and stated an intent to move forward with the depositions on May 7 and 8. On April 17, counsel spoke by telephone and defense counsel followed up with an email stating his belief that defendants could produce names, dates, and locations of PMK depositions by May 7. On May 3, defendant’s counsel served objections stating defendant would not be attending the May 7 and 8 depositions.

On May 10, defendant’s counsel wrote: “I don’t have dates to offer but it looks like my client has completed the task of identifying the various PMK witnesses, subject to what appear to be a few final, confirming inquiries. With that work done, it looks like we can start kicking around available dates.” He asked for plaintiffs’ proposed dates and suggested videoconferencing the depositions rather than in-person depositions. On May 13, plaintiffs filed their motion to compel the depositions.

2. Analysis: When a party or its agent, without having filed a valid objection, fails to appear for or proceed with a deposition, the party noticing the deposition may move for an order compelling the deponent’s attendance and testimony. CCP § 2025.450(a). (Defendant does not oppose the motion based on its objections.) The motion shall be accompanied by a meet and confer declaration. CCP § 2025.450(b)(2).

Defendant argues that plaintiffs did not meet and confer in good faith because their counsel did not respond to the May 10 email before filing the motion.

“A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” CCP § 2016.040. A party must make “a serious attempt to obtain ‘an informal resolution of each issue.’” Townsend v. Superior Court, 61 Cal.App.4th 1431, 1435 (1998). “A reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel…. Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” Id. at 1439. An attempt at “informal resolution means more than the mere attempt by the discovery proponent ‘to persuade the objector of the error of his ways.’” Clement v. Alegre, 177 Cal.App.4th 1277, 1294 (2009).

Plaintiffs demonstrate significant patience in scheduling the depositions. From March 6 through May 10, plaintiffs had diligently sought to take PMK depositions and the deposition of a named individual. Once defendant’s in-house counsel was available on March 18, defendant still failed to identify a single PMK as plaintiffs requested and as defendant promised.

The May 10 email that defendant offers as evidence of plaintiffs’ lack of good faith still does not identify any PMK. It is equivocal, stating that “it looks like” defendant had completed the task of identifying PMK witnesses. Rather than setting forth available dates, defendant asked plaintiffs to propose dates while at the same time stating defendant’s counsel’s busy schedule. Rather than constituting a light at the end of the deposition tunnel, this email perpetuated the uncertainty by placing the burden back on plaintiff to start another round of attempting to set the depositions.

The court finds good cause to compel the PMK depositions and Chismar’s deposition. At the hearing, the court will ask the parties to agree to the dates, times, and places of the depositions. Absent an agreement, the court will set the dates, times, and places of the depositions.

3. Monetary Sanction: When the court grants a motion to compel depositions, it “shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, 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(g)(1).

The court imposes a monetary sanction on defendant Fisher Scientific Company, LLC, and its counsel, Michael C. Douglass and the law firm of Wilson Elser Moskowitz, Edelman & Dicker LLP, in the amount of $4,460, payable on or before June 24, 2019.