2015-00186347-CU-PO

Jacinta Bustillos vs. Windsor El Camino Care Center, LLC

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

Filed By: Buckley, Christopher S.

Plaintiff’s Motion to Compel Depositions and Requests for Production of Documents is granted.

Plaintiff seeks to compel the depositions of the following witnesses noticed in the following order:

(1) Windsor PMQ depositions on certain document categories

(2) Windsor CNAs (8)

(3) Windsor Licensed Nurses (8)

(4) Windsor Administrative Personnel (4)

Plaintiffs initially noticed these depositions in February of 2016 and then later re-noticed them in April of 2018. By this motion plaintiffs contend they are only seeking to compel deposition dates for each of these outstanding depositions because Windsor has never provided dates or produced the witnesses. Plaintiff also seeks to compel the production of Witnesses in the general order they were noticed, as set forth above.

Since the motion was filed, defendants have provided dates for a number of the depositions and are attempting to reach additional witnesses. (Supplemental Declaration of Jay C. Patterson)

CCP section 2025.450 provides in relevant part: If, after service of a deposition notice, a party to the action or an officer, director managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for

examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. CCP § 2025.450(a).

In opposition defendants contend plaintiffs did not adequately meet and confer before filing the motion. The Court finds that plaintiffs adequately met and conferred on the issue of setting up the dates for the depositions.

Defendants further contend that the motion suffers from a number of other procedural defects. The Court rejects these arguments for the reasons stated in the Reply papers. Specifically, defendants argue that this 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 untimely under this rule. However, 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 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).) Defendant did not serve a valid objection under CCP 2025.450.

The Court also rejects defendant’s argument 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, this motion is not seeking to compel the production of any document just the dates for the depositions.

Plaintiffs’ request for sanctions against both counsel and defendants pursuant to CCP

§ 2025.450(g)(1) is granted as the opposition was not substantially justified. Windsor’s opposition relies on several meritless arguments regarding the same procedural issues that were rejected by the court in ruling on a similar motion in the Knowles v Windsor case, Case No 2015-186245 on November 2, 2018. The Court awards sanctions in the amount of $1,560 (four hours at $375 plus filing fee) to be paid by defendants to plaintiff.

Counsel are ordered to meet and confer and agree upon dates for all of the above witnesses who are currently represented by counsel for defendants and defendants are ordered to produce those witnesses. Counsel for defendants are to use their best

efforts to attempt to locate contact information for former employees who they do not represent and to provide the contact information to plaintiffs so that they may subpoena the witnesses if the do not agree to appear for their depositions. Due to the fact that no time-lines for completing the depositions were provided by moving party, and because of the high volume of witnesses to be deposed in this case as well as pending elder abuse involving the same counsel, the Court is not imposing the customary 30 day deadline in which to take the depositions. The trial date is not until May 13, 2018.

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