Lawzilla Update: Lawzilla believes this tentative ruling did not become a final court order.

17-CIV-00329 THE BANKRUPTCY ESTATE OF KASSANDRA MARIE HOELSCHER VS. SAFECO INSURANCE COMPANY OF AMERICA, ET AL.

THE BANKRUPTCY ESTATE OF KASSANDRA MARIE HOELSCHER SAFECO INSURANCE COMPANY OF AMERICA
JAMES R. DONAHUE FRANK FALZETTA

MOTION TO COMPEL SAFECO TO PRODUCE PERSON MOST QUALIFIED (PMQ) WITNESS FOR DEPOSITION AND PRODUCTION OF DOCUMENTS PURSUANT TO CCP SECTIONS 2025.230, 2025.280, 2025.450 AND REQUEST FOR SANCTIONS BY THE BANKRUPTCY ESTATE OF KASSANDRA MARIE HOELSCHER, BY AND THROUGH TRUSTEE, JAMES E. SALVEN TENTATIVE RULING:

Plaintiff’s motion to compel appearance at deposition and to produce documents is GRANTED. Safeco offers four grounds for refusing to appear for deposition. None has merit.

A. Duplicative Deposition.

Safeco’s first objection is that the deposition of Safeco is duplicative, since Plaintiff has already taken depositions of four Safeco employees, Ms. Hoelscher, and three of her attorneys. Deposition of a corporation’s Person Most Qualified is a deposition of the corporation itself. Without the PMQ deposition, Plaintiff will have deposed only some party-affiliated witnesses, but not the party itself.

It is likely that the questioning at the PMQ deposition will duplicate some areas that the other witnesses have already testified about. The Court is in no position to determine the extent to which duplication might occur. Safeco has identified witnesses who have been deposed, but submitted no showing that any of those witnesses have already covered all the specific areas that Plaintiff wants to depose Safeco about. Without knowing the full extent of the PMQ deposition or the full extent of the percipient witnesses’ depositions, the Court cannot find that the PMQ deposition is unnecessarily duplicative.

B. Summary of Communications

Safeco argues that the deposition requires Safeco to summarize its communications with Ms. Hoelscher, her personal counsel, her father, and her defense lawyers, which are contained in the 3,000-page claim file. (Opposing P&A at 6.) The matters identified in Safeco’s brief (page 6) are the subject matter for deposition. None of them on their face call for the witness to summarize any matter. Rather, it lists the matters as areas that will be asked about. If the questions during deposition do, in fact, call for an improper summary, then Safeco’s course of action is to object to the question or move for a protective order. That the Notice of Deposition identifies subjects that only potentially call for a summary is not a ground to refuse to appear.

C. Improper “Contention” Questions.

The Notice of Deposition does suggest that contention questions will be asked. (See, e.g., Amended Notice of Deposition at 2:28 – 3:2, 4:16-18, 5:2-5.) However, the proper action is to object to the question at deposition and/or move for a protective order. The mere possibility that such questions will be asked does not justify refusing to appear.

D. Safeco’s Written Responses.

Safeco provides no authority holding that verified written responses to a PMQ deposition notice eliminates the need for an oral deposition.

E. Sanctions.

Plaintiff’s request for sanctions is GRANTED in the amount of $3,660.00 against Safeco’s counsel, but not against Safeco. The record indicates that the refusal to appear for deposition was the decision of Safeco’s counsel, not the client.

F. Ruling

Safeco shall comply with the Amended Notice of Deposition. The deposition shall commence no later than February 8, 2019. The parties may extend the deadline, but any such agreement shall be in writing. Safeco’s objections to the Amended Notice of Deposition are not waived and may be interposed during the deposition.

Jeffrey Crowe and the law firm of Sheppard, Mullin, Richter & Hampton shall jointly and severally pay a monetary sanction of $3,660.00 to Plaintiff James Salven, Trustee of the Bankruptcy Estate of Kassandra Marie Hoelscher, no later than February 11, 2019, or one week after service of written notice of this ruling, whichever is later.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, Plaintiff Trustee of the Bankruptcy Estate of Hoelscher shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.