2015-00186245-CU-PO

Thomas Knowles vs. Windsor El Camino Care Center, LLC

Nature of Proceeding: Motion to Compel Deposition and Production of Documents

Filed By: Dudensing, Edward P.

Plaintiffs Thomas Knowles’, et al.’s motion to compel Defendant Windsor El Camino Care Center, LLC to produce a PMQ regarding the Maintenance of Active Resident Charts is granted.

Plaintiffs seek to compel Defendant Windsor El Camino to produce a PMQ regarding the Maintenance of Active Resident Charts and documents requested in the notice of deposition.

Plaintiffs served the notice of deposition for the PMQ on July 18, 2018 noticing the deposition for August3, 2018. The notice sought a PMQ for three subject areas: (1) the general contents of patient charts maintained at the nurse’s station for residents at the facility in 2014; (2) the manner in which those charts were maintained; and (3) the manner in which documents in the charts are removed if the resident’s stay is lengthy. Defendant objected to the date of the deposition and interposed the same boilerplate objection to each area of inquiry: “This category is vague, ambiguous, and uncertain calling for speculation.” Plaintiffs sent a meet and confer letter on August 31, 2018 asking for dates by September 7, 2018. Plaintiffs sent a second letter on September 18, 2018 providing explanation of the subject areas and again asking for dates. Defendant’s counsel indicated that dates would be provided by September 21, 2018 or soon thereafter but did not do so.

Pursuant to CCP § 2025.450(a), where a deposition notice has been properly served and the party subject to the notice fails to appear or proceed with it, the party serving the notice may move for an order compelling the deponent’s attendance and testimony.

Plaintiffs have shown good cause for the subject deposition. As seen from the moving papers, when residents have been at a facility for multiple years (as was the case with Mr. Knowles), the paperwork in the resident’s chart becomes voluminous and it is impracticable to keep the full chart at the nurse’s station. (Dudensing Decl. ¶ 9.) The facility then “thins” the chart such that healthcare givers have access to key data regarding the resident’s care and treatment (care plans, recent doctor’s and nursing notes) while not having other documents. (Id.) Plaintiffs are entitled to depose the PMQ regarding the manner in which documents are maintained and removed from the nurse’s station in order to determine what materials healthcare givers had during the last few months of Mr. Knowles’ life.

Defendant’s opposition lacks merit. Defendant first argues that the motion is untimely.

Defendant asserts that CCP § 2025.450 does not apply because that section is applicable where a party fails to proceed or appear at a deposition “without having served a valid objection.” (CCP § 2025.450.) It reasons that whenever an objection has been served to a deposition notice, the motion is governed by CCP § 2025.480 which provides that “[i]f a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move for any order compelling that answer or production.” (CCP § 2025.480(a).) Defendant reasons that a motion under § 2025.480 must be made no later than 60 days after completion of the record of deposition which according to Defendant is 60 days after objections are served. Defendant argues that the instant motion was served 4 days after the 60 day (plus 2 days for service of the objection) was made. The authority cited by Defendant deals solely with business records subpoenas and the conclusion that with respect to a subpoena the deposition record is complete when the objections are served. ( Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123; Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164.)

The instant motion does not concern a business records subpoena but rather a failure to proceed with a noticed deposition for testimony and an attendant records request and is governed by CCP § 2025.450. Moreover, the objection referred to in that section is one for “error or irregularity” in the deposition notice yet Defendant objected to the substance of the notice. (CCP § 2025.410(a).) In any event, Defendant assumes that it served a valid objection. It did not. As set forth above, Defendant interposed the identical boilerplate objection to the three areas of PMQ testimony specified in the deposition notice: “Objection. This category is vague, ambiguous, and uncertain calling for speculation.” Defendant made no attempt to justify this boilerplate objection which is no basis upon which to refuse to produce a PMQ and proceed with the deposition.

Defendant next argues that Plaintiffs failed to comply with CRC Rule 3.1345 because that rule requires a separate statement with respect to motions to compel further responses to a demand for inspection of documents and to compel answers at a deposition. (CRC Rule 3.1345(3), (4).) Plaintiffs are not seeking to compel answers at a deposition but rather seeking to compel attendance at a deposition and there is no requirement for a separate statement as to such a motion. While the deposition notice did request documents, the Court retains discretion to entertain the motion to the extent that it concerns the documents even if a separate statement were required. Such exercise of discretion is appropriate here given the deposition notice contained only two requests (any policy regarding thinning active resident charts and closing charts in effect in 2014). Defendants again interposed the same boilerplate objection: “Objection. This request is vague, ambiguous, and uncertain calling for speculation.” Once again Defendant made no attempt to justify this objection and it lacks merit.

Defendant finally argues that there is no good cause for the deposition because Aileen Tapia Espinoza testified at her deposition as the PMQ of Mr. Knowles’ facility chart on the procedures of thinning and closing charts. Defendant reasons that the deposition would therefore be duplicative and unduly burdensome. First, this objection was never asserted with respect to the subject deposition notice and it has been waived. In any event, the attached deposition testimony was geared to the testimony regarding Mr. Knowles original medical chart while the instant PMQ notice focuses on what parties of the overall patient chart would be maintained at the nurse’s station for an active patient

as opposed to in the medical records or in another department and how those documents are maintained.

As a result, the motion is granted. Defendant shall designate and produce a PMQ for deposition for the requested areas of inquiry. The PMQ shall bring the requested documents to the deposition. The parties shall meet and confer as to the time and place for the depositions though it shall take place no later than November 30, 2018. The parties are free to agree on later dates.

Defendant’s request for sanctions is denied as the motion was granted.

Plaintiffs’ request for mandatory monetary sanctions pursuant to CCP § 2025.450(g)(1)

is granted as the opposition was not substantially justified. The Court awards
sanctions of $810 ($375/hr x 2 hrs [the Court reduced counsel’s requested fee of
$675/hr] + $60 filing fee) to Plaintiffs from Defendant. Sanctions are to be paid on or
before November 30, 2018. If sanctions are not paid by that date, Plaintiffs may
prepare a formal order granting sanctions for the Court’s signature, and the order may
be enforced as a separate judgment. (Newland v. Superior Court (1995) 40
Cal.App.4th 608, 615.)

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.