2012-00120206-CU-PO

Raymond K. Pierce vs. Carmichael Care, Inc.

Nature of Proceeding: Plaintiff’s Motion to Compel Production, for Protective Order, and for

Filed By: Jay, Daniel

Defendant John Sorensen’s Motion for Protective Order Terminating his Deposition, or in the Alternative for the Appointment of a Referee is DENIED in part and GRANTED in part, as set forth below.

Plaintiff’s Motion to (1) Compel Sorensen’s Further Deposition; (2) to Compel Further Document Production, (3) for Protective Order and (4) for Relief from Deposition Time Limit is GRANTED in part, as set forth below.

The Court continued Defendant John Sorensen’s Motion for Protective Order Terminating his Deposition, or in the Alternative for the Appointment of a Referee is to be heard and determined by the Court concurrently with Plaintiff’s motion to (1) Compel Sorensen’s further deposition; (2) to Compel further Document Production,(3) for Protective Order and (4) for Relief from Deposition Time Limit, as both motions related to the Deposition of John Sorensen which was commenced, but not completed by plaintiff’s counsel on Nov. 8, 2017.

The parties do not dispute that Sorensen was properly served with a Notice of Deposition and production of documents on August 3, 2017, and with an Amended Notice of Deposition and production of documents served on August 22, 2017, to be taken on Nov. 8, 2017.

On Nov. 3, 2017, Sorensen timely served objections and responses to the Amended Notice, indicating that he would provide documents in his personal capacity, but not on behalf of co-defendants NAHC or Rosewood, who are separately represented by

counsel in this action.

Responsive documents to the Notice of Deposition were produced to plaintiff’s counsel the day before the commencement of Sorensen’s deposition on Nov. 7, 2017.

Production of Documents – GRANTED

Plaintiff’s request for an order compelling a further document production from Sorensen, of all non-privileged documents responsive to the Request for Production to be produced prior to the completion of the deposition is GRANTED.

The service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying. (Code Civ. Proc., § 2025.280(a).)

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.(Code Civ. Proc., § 2025.450(a).)

Here, Sorensen objected to the production of documents at his deposition, and produced some, but not all responsive documents.

At his deposition, Sorensen admitted that he had never seen the notice of deposition, he did not personally make any effort to collect any of the requested documents, nor did he personally direct any non-attorney employee or North American or any affiliated entity to search the files and records, including electronically stored information, for the responsive documents. He further admitted that some categories of documents were known to him to exist and that he had access to them (business cards, employee badges, job descriptions, employee handbooks), and that he had no valid reason not to produce them, although they were not produced.

Plaintiff’s counsel asserts that she was entitled to suspend the deposition in order to seek relief from the Court regarding the deficient documents production by Sorensen under C.C.P., sec. 2025.450(a).

Plaintiff’s counsel requests an order that a further production of all responsive documents in the deponent’s possession, custody or control be ordered on the second day of Sorensen’s deposition.

A review of the documents requests in the notice of deposition reflects that some documents which were agreed to be produced, have not been produced and some documents, as to which it was represented that no such documents existed, were contradicted by Sorensen’s later sworn deposition testimony.

To the extent that production of documents was objected to on the grounds that the objection was untimely this objection is overruled. The plaintiff’s motion to compel was brought within 60 days of the first day of the deposition. (C.C.P., sec. 2025.480.)

To the extent that the production of documents was objected to on the grounds that he was not required to search co-defendant NAHC’s records, as that defendant is separately represented by counsel, the objection is OVERRULED. The documents remain within Sorensen’s possession, custody or control as he was an officer of NAHC until 2015, the chairman of the board of NAHC until 2017, still has a major ownership in NAHC and its affiliates, and is one of three shareholder/owners of NAHC. He has an office at NAHC, works there five days a week, has a computer and the right to access NAHC servers and emails. He admits that he has the right to ask NAHC’s IT department to have them search for responsive documents.

The Court orders further production of documents in response each of the document requests.

Orders re Sorensen Deposition – DENIED in part and GRANTED in part

Defendant Sorensen’s request for a protective order terminating his deposition, pursuant to C.C.P., sec. 2025.420(a) is DENIED.

In the alternative, Sorensen seeks the appointment of a referee to supervise the remainder of his deposition. C.C.P., sec. 638(a)(d). This is GRANTED.

Plaintiff’s counsel requests a protective order compelling Defendant John Sorensen to attend his continued deposition in this matter and for an order granting relief from the statutory time limit, granting an additional seven hours to depose Sorensen over and above the time currently remaining- GRANTED.

Both counsel accuse opposing counsel of abusive conduct during the first session of the deposition of Sorensen.

On Nov. 8, 2017, Sorensen was deposed for five hours in Irvine, California. Defense counsel complains that plaintiff’s counsel terminated the deposition early, at 5:12 p.m., over the objections of defense counsel, as Sorensen was prepared to finish his deposition in one day.

Defense counsel contends that Plaintiff’s counsel interrupted Sorensen, cutting off his answers half a dozen times. To avoid this objection by defense counsel, plaintiff’s counsel then followed Sorensen’s answers with “Are you done?” Defendant further objects that plaintiff’s counsel asked follow up questions “Are you denying that…?”

Plaintiff’s counsel characterizes these objections and the removal of the deponent from the deposition while a question was pending as abusive conduct by defense counsel.

Plaintiff further characterizes the deponent Sorensen as having great difficult directly answering a question posed to him and was very often non-responsive to the question. Mr. Sorensen was so evasive and non-responsive during the first session of his deposition that it led to his own attorney apologizing on Mr. Sorensen’s behalf. Plaintiff’s counsel contends that she is dealing with a witness that constantly avoids giving a direct answer to a question and then dealing with objections from his counsel

on top of that wastes precious deposition time and warrants relief from the seven-hour time limit. (Declaration of Wendy C. York at ¶ 17.)

Defense counsel further asserts that plaintiff’s counsel questioned Sorensen on topics that have no connection to this lawsuit (patient dumping, Medicare fraud, in-house therapy providers, and financial information).

Plaintiff’s counsel objects to the defense request for a protective order to preclude the conclusion of Sorensen’s deposition. As noted, the deposition was taken in Irvine, California to comply with the statutory restrictions on the location of the deposition, but three attorneys – plaintiff’s counsel, counsel for NAHC and Counsel for Rx Staffing – all had return flights to Sacramento on the evening of Nov. 8, 2017. Additionally, other counsel have not yet had an opportunity to question Sorensen. (York Dec. ¶ 15)

Plaintiff requests an order that further time be allowed beyond the seven hour limit set forth in C.C.P., sec. 2025.290 (a) as needed to fairly examine the deponent Sorensen, as the deponent, another person, or any other circumstance impedes or delays the examination.

As a general rule, “good cause” includes reasons that are fair, honest, in good faith, not trivial, arbitrary, capricious, or pretextual, and reasonably related to legitimate needs, goals, and purposes. (See Cotran v. Rollins Hudig Hall Internat., Inc. (1998) 17 Cal. 4th 93, 107-108.) In determining the meaning of “good cause” in a particular context, the courts utilize common sense based upon the totality of the circumstances. Those circumstances include the purpose of the underlying statutory scheme. Our state’s high court has explained that the concept “should not be enshrined in legal formalism; it calls for a factual exposition of a reasonable ground for the sought order.” (Waters v. Superior Court (1962) 58 Cal.2d 885, 893.)

The Court finds here that good cause exists for a continued session of Defendant Sorensen’s deposition because Plaintiff’s counsel has not finished questioning Defendant Sorensen on the issues relevant to this case including direct liability, alter-ego liability, his oversight and control of the Rosewood facility and similar issues. As noted, other counsel have not yet had an opportunity to question Sorensen.

Plaintiff contends that Mr. Sorensen is a critical witness to this case. Discovery has revealed that Mr. Sorensen owns and controls both Defendant North American Healthcare, Inc. and Defendant Carmichael Care, Inc.; he was president / CEO of both organizations during all times relevant to this lawsuit; he exercised significant control over the operations of NAHC-affiliated skilled nursing facilities (including the Carmichael / Rosewood facility at issue in this case) including the budgets, capital expenditures, census goals, and administrator bonuses for those facilities; and Mr. Sorensen signed the services agreement between NAHC and Carmichael Care, Inc. on behalf of both parties to the contract. Sorensen is intimately involved in the day-to-day operations of the facilities.

Additionally, both Defendants Sorensen and NAHC have recently filed motions for summary judgment, which are calendared for hearing on Feb. 16, and include a declaration by Sorensen submitted after the first day of Sorensen’s deposition.

The Court grants the plaintiff’s request for an additional seven hours in which to complete Sorensen’s deposition.

Referee – GRANTED

The Court grants defendant’s motion to appoint a referee to supervise the completion of Sorensen’s deposition. The referee shall hear and determine any disputes in the conduct of the deposition. C.C.P., sec. 638, C.R.C., Rule 3.920.

As counsel for defendant offered to pay the expenses of the referee, and the plaintiff agreed on the record to such an arrangement, the Court finds that the parties have stipulated to the use of a referee in the completion of the deposition. CCP, sec. 638.

Counsel are ordered to meet and confer and agree on the identity of the referee to be retained.

The Cross-motions for a protective order prohibiting abusive deposition tactics by all attorneys is GRANTED. A referee is appointed to attend the deposition, to be compensated by the defendant.

On the record at the deposition defense counsel offered to pay for a referee for the completion of the deposition. Plaintiff agreed, subject to a stipulation as to the identity of the referee.

As counsel for both parties have articulated grievances about the questioning or objections in the deposition, the Court appoints a referee for the conclusion of Sorensen’s deposition, only.

If the parties can agree on the identity of the referee to be appointed, an order shall be submitted to Dept. 53 for the Court’s signature. If counsel are unable to agree, each party shall submit to the court up to three nominees for appointment as referee not later than Tuesday, January 16, 2018. The court shall appoint a referee from among the nominees against whom there is no legal objection. If no nominations are received from any of the parties, the court shall appoint a referee, against whom there is no legal objection. (Code Civ. Proc., § 640.)

The referee’s fees shall be paid by the defendant. The Court declines to make any order at this time about the recoverability of that fee as item of costs.

Further production of documents and the further session of Sorensen’s deposition shall take place on a mutually agreeable date(s) not later than Friday, January 19, 2018.