2015-00185641-CU-PO

Rebecca Hammons vs. Sunrise of Carmichael

Nature of Proceeding: Motion to Compel1) PMK Re:Regional Consult Team 2) PMK Re: Corp.

Filed By: York, Wendy C.

Plaintiffs’ Motion to Compel PMK Depositions re the Regional Consult Team and the designated topics re the Corporate Compliance Officer of defendant Sunrise Senior Living Management Inc. (SSLMI) is granted/denied as follows:

In the Second Amended Complaint, plaintiffs allege causes of action for negligence, dependent adult abuse/neglect, intentional misrepresentation, negligent misrepresentation, unfair business practices, financial elder abuse, and wrongful death. Specifically as to SSLMI, plaintiffs claim that while decedent resided at Sunrise of Carmichael, she sustained injuries from falls, including
a subdural hematoma that purportedly led to her death on October 20, 2013

On September 22, 2017, plaintiffs’ counsel served a deposition notice and request for the production of documents for SSLMI’s “PMK Re: Corporate Compliance Officer” setting the deposition for October 11, 2017. SSLMI objected to the notice on October 9 contending, among other things, that the Corporate Compliance Officer was an apex employee. (Ex. G to opposition)

On September 22, 2017, plaintiffs served a Notice of Taking Deposition of Defendant Sunrise Senior Living Management, Inc.’s PMK re: “Regional Consult Team” and Request for Production of Documents. SSLMI objected to the notice on October 9 contending that there is no Regional Consult Team and therefore no person most knowledgeable would be produced. (Ex Q to opposition).

Despite the objections, plaintiffs continued to demand dates for the depositions, without addressing all of the objections. (York Decl Ex. K, L)

SSLMI filed a late opposition six court days before the hearing. SSLMI contends its opposition was late because plaintiff would not agree to a continuance of the motions in this case. On December 29, two days after the opposition was due, the court denied the ex parte request of SSLMI to continue the motions. SSLMI contends that the person who could provide a declaration in support of the opposition was out of the country until after the opposition was due on Dec. 27. SSLMI states its opposition will be supplemented with a declaration in support of
its opposition once the declarant returns to the country. The Court, at plaintiff’s election and request, will continue this hearing if necessary to allow plaintiff additional time to prepare a full reply, due to the late filing of the opposition.

PMK re Regional Consult Team

The motion to compel this deposition is denied, without prejudice to additional meeting and conferring on the nature of the PMKs sought.

SSLMI contends, and this court agrees, that this motion was filed prematurely because plaintiffs did not adequately meet and confer on the issue of the non existence of “Regional Consult Team” and thus the inability to produce a PMK for a non existent entity. Defendant contends that the parties were in the middle of meeting and conferring on a correct definition of the person plaintiffs wanted to depose when the motion was filed. This fact is supported by Exhibit K to the Declaration of York filed in support of the motion and Ex. S to the Declaration of Westoff). SSLMI explained to plaintiffs’ counsel that it does have multiple area and regional level employees from different disciplines within the company…, but that there is no “overarching “team” that encompasses all of the positions that plaintiff’s counsel had mentioned such that a ‘PMK could be identified.” (Exhibit S; Westhoff Dec. 163.) The court finds that plaintiff did not adequately respond to defendant’s objections by failing to redefine the clearly inadequate definition of what topics out of the various types of regional teams were to be the subjection of the deposition(s), which would likely involve the identification of more than one person and therefore multiple depositions.

PMK re Corporate Compliance Officer

The motion to compel the deposition is granted insofar as SSLMI must produce the person or person’s most knowledgeable as to each of the separate categories set forth in the deposition notice. (See York Declaration Exhibit A)

The deposition notice was ambiguous as to whether it sought the deposition of the

individual who is the corporate compliance officer, or the person(s) most knowledgeable as to the specific topics to be addressed concerning the corporate compliance officer from 2010 to 2014. Plaintiffs’ own meet and confer letter confusingly states that the deposition is to be of “the corporate compliance

officer.” (York Declaration Ex. L) Rather than compel the deposition of “the corporate compliance officer” the court is compelling the deposition of the person(s) most knowledgable on the specific categories concerning corporate compliance.

The eight subject matter categories of this PMK deposition are (1) “Identification of SSLMI’s Corporate Compliance Officer for the years of 2010-2014”; (2) “A description of the duties and responsibilities of the Corporate Compliance Officer for SSLMI for the years 2010-2014”; (3) “Any and all policies and procedures and /or manuals related to Corporate Compliance for SSLMI for the years 2010-2014.” (4) “The Corporate Compliance Hotline Telephone Number for SSLMI, for 2010-2014;” (5) “Any and all protocols regarding the intake of calls related to corporate compliance involving SSLMI and Sunrise entities;” (6) “Any and all logs of telephone calls made regarding corporate compliance issues for 2010-2014;” (7) “Any and all reports including recommendations made by the Corporate Compliance Officer for SSLMI for 2010-2014.

SSLMI’s “apex employee” objection is overruled. First, the declaration of Marc Roder does not establish that the “compliance officer” is an apex employee. That the “Chief Compliance Officer is a high ranking individual” does not make him/her an apex employee. Moreover, even if one were to credit the assertion, a party is entitled to depose an “apex” employee of a corporation where that officer possesses unique or superior personal knowledge of discoverable information. Liberty Mutual Ins. Co. v Superior Court (1992) 10 Cal.App.4th 1282, 1289. Here, Plaintiff is not seeking to take a deposition of an “apex” employee, but rather a PMK [whom defendant selects] on the 8 categories listed above that seek admissible evidence about corporate compliance in this lawsuit. SSLMI is required to produce whoever they designate is the most knowledgeable on each of the topics. Thus, the Court orders the deposition of the PMK(s) on each of the eight topics.

SSLMI’s remaining objections to the categories 1-8 are overruled.

SSLMI’s request for a protective order made in the opposition is deied. SSLMI requests a protective order preventing the deposition of its Corporate Compliance Officer, who is contended to be an apex employee with no personal knowledge of the issues in this lawsuit. The request for a protective order is denied as untimely.

SSLMI contend that the compliance officer has no personal knowledge of plaintiff’s care and therefore cannot be deposed. In support of the motion, SSLMI contends that Orville Bell, the executive director of the Sunrise of Carmichael community, testified at his deposition that if an incident occurs at the facility for which an incident report is prepared, neither the report nor the circumstances of the incident are routinely provided to his superiors. (Exhibit E, Excerpts of Transcript of Deposition of Orville Bell, 43:9-44:3; Westhoff Dec. ¶25.) SSLMI contends this testimony supports the fact that no individual above Mr. Bell in the corporate hierarchy has ever been identified by SSLMI as having personal knowledge of any of decedent’s care at the Sunrise of Carmichael community. (Westhoff Dec. ¶26.) The Court rejects this argument. A PMK deposition notice seeking a person to testify on a particular subject matter relevant to the action by definition is not is not an apex deposition of a person at the top of the pyramid with no personal knowledge about the relevant issues in the litigation. The

PMK deposition concerns issues of corporate compliance, not a deponent who has personal knowledge about decedent’s care at Sunrise of Carmichael.

Plaintiff’s Request for Issue and/or Evidence Sanctions is denied.

SSLMI shall identify the PMKs on each of the eight categories set forth in the deposition notice. The parties shall thereafter meet and confer on the dates of the deposition(s) to take place within 45 days of the date of this hearing.

Both parties requests for sanctions are denied as both sides partially prevailed.