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This case was last updated from Los Angeles County Superior Courts on 06/12/2019 at 01:48:40 (UTC).

JUAN PALMA ET AL VS KAISER FOUNDATION HEALTH PLAN INC ET AL

Case Summary

On 04/27/2016 JUAN PALMA filed a Personal Injury - Medical Malpractice lawsuit against KAISER FOUNDATION HEALTH PLAN INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are ROBERT B. BROADBELT and GLORIA WHITE-BROWN. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8225

  • Filing Date:

    04/27/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Medical Malpractice

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

ROBERT B. BROADBELT

GLORIA WHITE-BROWN

 

Party Details

Plaintiffs and Petitioners

BLACKMON MISTY

ESTATE OF MISTY BLACKMON

Defendants, Respondents and Cross Plaintiffs

SOUTHERN CALIFORNIA PERMANENTE MEDICAL

BADRTALEI-SHAH SHIRIN D.O.

KAISER FOUNDATION HOSPITALS

KAISER FOUNDATION HEALTH PLAN INC.

KAISER PERMANENTE ONTARIO MEDICAL CENTER

DOES 1 THROUGH 100

DISNEY LEW B. M.D.

VIGIL CARLOS D.O.

SAN ANTONIO REGIONAL HOSPITAL

DISNEY M.D. LEW B.

ANGEL MEFLIGHT WORLD WIDE AIR AMBULANCE

BADRTALEI-SHAH D.O. SHIRIN

VIGIL D.O. CARLOS

Cross Defendant

AVIATION WEST CHARTERS LLC DBA ANGEL MEDFLIGHT WORLD WIDE AIR AMBULANCE

Guardian Ad Litem

PALMA JUAN

12 More Parties Available

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

BALABAN DANIEL K. ESQ.

O'CALLAHAN JAMES G. ESQ.

Defendant and Respondent Attorneys

R.J. RYAN LAW APC

BROBECK DAVID J. JR.

WARFORD ROBERT K.

RYAN RICHARD J.

RYAN DATOMI LLP

WARFORD ROBERT K. ESQ

TROTTER MICHAEL J.

TROTTER MICHAEL J. ESQ.

Cross Plaintiff Attorney

BROBECK DAVID J. ESQ.

 

Court Documents

Notice

7/20/2017: Notice

Motion for Summary Judgment

9/29/2017: Motion for Summary Judgment

Unknown

9/29/2017: Unknown

Unknown

11/14/2017: Unknown

Declaration

11/14/2017: Declaration

Unknown

4/12/2018: Unknown

Other -

4/12/2018: Other -

Unknown

4/19/2018: Unknown

Order

8/29/2018: Order

Notice of Change of Firm Name

9/11/2018: Notice of Change of Firm Name

Unknown

1/15/2019: Unknown

Notice

1/22/2019: Notice

Motion in Limine

1/25/2019: Motion in Limine

Motion in Limine

1/25/2019: Motion in Limine

Notice

4/10/2019: Notice

Notice of Ruling

5/10/2019: Notice of Ruling

SUBSTITUTION OF ATTORNEY

7/12/2016: SUBSTITUTION OF ATTORNEY

PLAINTIFFS' OPPOSITION TO DEFENDANT LEW B. DISNEY, M.D.'S MOTION FOR ORDER REQUIRING PLAINTIFFS TO FILE AN UNDERTAKING;ETC.

6/29/2017: PLAINTIFFS' OPPOSITION TO DEFENDANT LEW B. DISNEY, M.D.'S MOTION FOR ORDER REQUIRING PLAINTIFFS TO FILE AN UNDERTAKING;ETC.

160 More Documents Available

 

Docket Entries

  • 05/28/2019
  • Application to be Admitted Pro Hac Vice; Filed by Juan Palma (Legacy Party); Misty Blackmon (Plaintiff); Estate of Misty Blackmon (Plaintiff)

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  • 05/10/2019
  • Notice of Ruling; Filed by San Antonio Regional Hospital (Defendant)

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  • 05/09/2019
  • at 08:30 AM in Department J, Gloria White-Brown, Presiding; Hearing on Motion - Other (To Contest Application for Good Faith Sttlement by Cross-Defendant Aviation West Charters, LLC) - Held - Motion Granted

    Read MoreRead Less
  • 05/09/2019
  • Order (Tentative Ruling); Filed by Clerk

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  • 05/09/2019
  • Minute Order ( (Hearing on Motion - Other To Contest Application for Good Fai...)); Filed by Clerk

    Read MoreRead Less
  • 05/01/2019
  • Reply (Reply of Def. San Antonio Regional Hospital to Motion to Contest Appl for Good Faith Settlement); Filed by San Antonio Regional Hospital (Defendant)

    Read MoreRead Less
  • 04/26/2019
  • Declaration (of Scott R. Diamond in Opposition to Notice of Motion and Motion to Contest Application for Good Faith Settlement by Cross-Defendant, Aviation West Charters, LLC); Filed by Aviation West Charters, LLC (Cross-Defendant)

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  • 04/10/2019
  • Notice (of Association of Attorney); Filed by Juan Palma (Legacy Party); Misty Blackmon (Plaintiff); Estate of Misty Blackmon (Plaintiff)

    Read MoreRead Less
  • 03/05/2019
  • at 08:30 AM in Department J, Gloria White-Brown, Presiding; Jury Trial - Not Held - Continued - Stipulation

    Read MoreRead Less
  • 02/21/2019
  • at 08:30 AM in Department J, Gloria White-Brown, Presiding; Final Status Conference - Not Held - Continued - Stipulation

    Read MoreRead Less
273 More Docket Entries
  • 05/20/2016
  • Application ; Filed by Plaintiff/Petitioner

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  • 05/20/2016
  • Request; Filed by Plaintiff/Petitioner

    Read MoreRead Less
  • 05/20/2016
  • PLAINTIFFS' REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFF'S APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM CIVIL

    Read MoreRead Less
  • 05/04/2016
  • NOTICE OF REJECTION - APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM

    Read MoreRead Less
  • 04/29/2016
  • APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM CIVIL EX PARTE

    Read MoreRead Less
  • 04/29/2016
  • Application-Miscellaneous (FOR MISTY BLACKMON GUARDIAN AD LITEM(COPY) ); Filed by Attorney for Pltf/Petnr

    Read MoreRead Less
  • 04/29/2016
  • Application ; Filed by Plaintiff/Petitioner

    Read MoreRead Less
  • 04/27/2016
  • Complaint; Filed by Misty Blackmon (Plaintiff); Estate of Misty Blackmon (Plaintiff)

    Read MoreRead Less
  • 04/27/2016
  • COMPLAINT FOR DAMAGES FOR: 1. MEDICAL PROFESSIONAL NEGLIGENCE; ETC

    Read MoreRead Less
  • 04/27/2016
  • Complaint

    Read MoreRead Less

Tentative Rulings

Case Number: BC618225    Hearing Date: December 04, 2020    Dept: J

HEARING DATE: Friday, December 4, 2020

NOTICE: OK[1]

RE: Palma v. Kaiser Foundation Health Plan, Inc. (BC618225)

______________________________________________________________________________

 

1. Defendant Carlos Vigil, D.O.’s MOTION TO COMPEL THE DEPOSITIONS OF

DEFENDANT SAN ANTONIO REGIONAL HOSPITAL’S PMQ AND OTHER

EMPLOYEES/AGENTS [joined by Plaintiffs Juan Palma, Guardian of Misty Blackmon,

Personally, and the Estate of Misty Blackmon]

Responding Party: Defendant, San Antonio Regional Hospital

2. Plaintiffs Juan Palma’s, Guardian of Misty Blackmon, Personally, and the Estate of Misty Blackmon’s MOTION TO COMPEL THE DEPOSITION OF DEFENDANT’S PMQ RE NURSE EDUCATION

Responding Party: Defendant, San Antonio Regional Hospital

Tentative Ruling

1. See below.

2. Plaintiffs Juan Palma’s, Guardian of Misty Blackmon, Personally, and the Estate of

Misty Blackmon’s Motion to Compel the Deposition of Defendant’s PMQ Re Nurse Education is DENIED. Plaintiffs’ request for sanctions is declined.

Background

Medical malpractice. On April 27, 2016, Plaintiff Juan Palma, Guardian of Misty Blackmon, Personally, and the Estate of Misty Blackmon (“Plaintiffs”) filed a complaint, asserting causes of action against Defendants Kaiser Foundation Health Plan, Inc. (“KFHPI”), Kaiser Foundation Hospitals (“KFH”), Southern California Permanente Medical Group (“SCPMG”), Kaiser Permanente Ontario Medical Center, Shirin Badrtalei-Shah, D.O. (“Shah”), San Antonio Regional Hospital (“SARH”), Lew B. Disney, M.D., Carlos Vigil, D.O. (“Vigil”) and Does 1-100 for:

  1. Medical Professional Negligence
  2. Non-MICRA Negligence
  3. Breach of Fiduciary Duty
  4. Loss of Consortium

On July 13, 2017, this action was transferred from the personal injury hub (Department 93) to this department. On December 1, 2017, SARH filed a cross-complaint, asserting causes of action against Cross-Defendants Aviation West Charters, LLC, dba Angel Medflight World Wide Air Ambulance (“Aviation”) and Roes 1-100 for:

  1. Equitable Indemnity
  2. Comparative Indemnity
  3. Declaratory Relief

On April 26, 2018, the court granted KFHPI’s motion for summary judgment and granted KFH’s and SCPMG’s respective motions for summary adjudication of the third cause of action.

On December 5, 2018, a Notice of Settlement was filed as between Plaintiffs and KFH, SCPMG, KFHPI and Shah. On January 16, 2019, the “Order Re: Application for Determination of Good Faith Settlement” as between Plaintiffs and KFH, SCPMG, KFHPI and Shah was filed.

On June 27, 2019, a second Notice of Settlement was filed as between Plaintiffs and Aviation.

On July 23, 2019, an “Order Re Amended Application for Determination of Good Faith Settlement of Cross-Defendant, Aviation West Charters, LLC dba Angel Medflight World Wide Air Ambulance” was filed.

On July 23, 2019, an “Order re Defendant Lew B. Disney. M..D.’s Application for Determination of Good Faith Settlement” was filed.

On August 29, 2019, Plaintiffs dismissed KFH, SCPMG, KFHPI and Shah, with prejudice. On May 12, 2020, Lew was dismissed, with prejudice.

On June 22, 2020 a “Joint Stipulation and Order to Extend Five Years” was filed.

The Final Status Conference is set for April 26, 2021. Trial is set for May 4, 2021.

1. Motion to Compel Depositions of SARC PMK and Other Employees/Agents

Legal Standard

“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, subd. (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, subd. (a).)

A motion under subdivision (a) shall comply with both of the following: (1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. (2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance…” (Code Civ. Proc., § 2025.450, subd. (b).)

“If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2025.450, subd. (g)(1).)

Discussion

Vigil moves the court for an order to compel SARH’s person(s) most qualified (“PMQ”) on a multiple topics related to SARH’s Electronic Medical Records System, audit trail system, Board of Trustee’s 2015 Rules and Regulations for Medical Staff, custodian of records and the person in charge of personnel who can identify “Ally” or “Ally” herself to appear for deposition.

On November 11, 2019, Vigil served a “Notice of Depositions of San Antonio Regional Hospital Personnel,” seeking to depose SARC’s Custodian of Records and “’Ally’ or PMQ Who Can Identify Her;” the depositions were noticed for January 9, 2020. (Baidas Decl., ¶3, Exh. A.) On November 11, 2019, Vigil also served a “Notice of Deposition of San Antonio Regional Hospital’s PMK Re Elect[r]onic Medical Records System and Audit Trail,” seeking to depose the “PMK Re Elect[r]onic Medical Records System and Audit Trail in Effect in May 2015;” the deposition was noticed for January 8, 2020. (Id.) On December 26, 2019 and December 30, 2019, SARC served objections to the above deposition notices, stating that they were vague, ambiguous and overly broad and that SARC’s counsel was unavailable on the noticed dates. (Id., ¶4, Exh. B.) On January 9, 2020, Vigil’s counsel Carol Baidas (“Baidas”) sent SARC’s counsel Steven Rosa (“Rosa”) a meet and confer letter, requesting, inter alia, that Rosa provide alternate dates for depositions by January 13, 2020. (Id., Exh. C.) No response was received. (Id., ¶6.)

SARC, in opposition, reports as follows: On January 14, 2020, SARC’s counsel Laura Stephan (“Stephan”) wrote to Vigil’s counsel and advised that “all but one of the depositions you have requested were previously noticed by plaintiffs’ counsel” and that “we are in the process of obtaining dates for those depositions.” (Stephan Decl., ¶9, Exh. A.) Stephan further advised that “Ally” was Amanda Clay, RN (“Clay”), and had already been deposed. (Id.) Stephan and Baidas subsequently discussed the Custodian of Records deposition. (Id., ¶10.) Baidas indicated that her office wanted to ensure that all parties had a copy of the same records as in depositions the parties were working on differently paginated records. (Id.) On January 22, 2020, SARC’s counsel’s office sent Vigil’s counsel a complete copy of Plaintiff Misty Blackmon’s chart from SAC, which reflected 1,519 pages. (Id., ¶10, Exh. B.) It is Stephan’s understanding that with transmittal of these records, counsel for Vigil is no longer requesting the deposition of the Custodian of Records. (Id., ¶10.) Additionally, SARC has identified Kamal Pandya (“Pandya”), the Director of IT and Chief Information Officer at SARC, as the PMQ on Electronic Medical Records. (Id., ¶4.) Pandya’s deposition was originally noticed by Plaintiffs’ counsel and scheduled to commence on January 31, 2020; however, Plaintiffs’ counsel took the deposition off calendar. (Id., ¶11). Stephan offered to make Pandya available for deposition on either February 13, 2020 or February 14, 2020, but Plaintiffs’ counsel was not available on these dates. (Id., ¶11, Exh. D.) The parties continue to work on a date which is convenient to everyone to depose Pandya. (Id., ¶11.) As to Vigil’s request for a PMQ on the Rules and Regulations for the Medical Staff, SARC interprets same as requesting a PMQ on Medical Staff Bylaws, which SARC cannot produce, as such an individual would not be under SARC’s control. (Id., ¶6.)

In his September 17, 2020 reply filing, Vigil reports that on September 2, 2020, counsel for SARC agreed to produce the following persons for their depositions: (1) the PMK on Electronic Medical Records; (2) the PMK on Audit Trail; (3) the PMK on Medical Staff Bylaws and (4) the Custodian of Records. (Wu Decl., ¶5.) Vigil no longer seeks to compel the aforementioned depositions on the condition that SARC produces the PMKs and Custodian of Records in a timely manner (ideally within 45 days of the hearing date). Vigil advises that SARC, however, has refused to produce “Ally” on the basis that “Ally” is Clay and has previously been deposed. Vigil contends that good cause exists to depose Clay a second time.

In its September 18, 2020 “response,” SARC points out that Vigil’s reply is essentially a completely new motion to compel a second deposition of Clay. The court declines to consider Vigil’s request for an order to compel a second deposition of Clay, which must be addressed via a separately filed motion.

On September 21, 2020, a “Notice Re: Continuance of Hearing and Order” was filed, in which the court, on its own motion, continued the October 1, 2020 hearing to December 4, 2020 at 10:00 a.m.; all counsel were given notice

Based on the above, it appears that the parties have resolved all issues save those pertaining to a second deposition of Clay. The parties are instructed to come prepared to discuss any outstanding issues with the court at the time of the hearing.

2. Motion to Compel Deposition of SARC PMK Re: Nurse Education

Legal Standard

See Motion #1.

Discussion

Plaintiffs move the court for an order to compel SARH’s PMQ on a variety of topics, including nursing policies, procedures, and education (collectively, “Nurse Education”) to appear for deposition.

Plaintiffs’ counsel Samantha Gold (“Gold”) represents as follows: On December 3, 2019, Gold’s office served SARH with a “Notice of Deposition of Person(s) Most Qualified of Defendant San Antonio Regional Hospital,” noticing the deposition for January 2, 2020. (Gold Decl., ¶¶3-4.) The parties subsequently agreed to move the date of the PMQ deposition from January 2, 2020 to January 30, 2020, so that Plaintiffs could take the depositions of two different PMQs on the same day to avoid extra travel for Plaintiffs’ attorney Ben Crane, who is located in Illinois. (Id., ¶5.) On January 21, 2020, Gold’s office served SARH with an “Amended Notice of the PMQ Deposition.” (Id., ¶6, Exh. 1.) SARH did not serve objections to the amended notice. (Id., ¶6.) On January 27, 2020, SARH’s counsel advised that the PMQ’s identity was still being determined by SARH, so Plaintiffs agreed to take the PMQ Deposition off-calendar, to be rescheduled on a later date. (Id., ¶7.) When COVID-19 started in mid-March 2020, Plaintiffs permitted SARH to take more time to determine the PMQ identities and availability. (Id.) On September 10, 2020, SARH’s counsel agreed via conference call to produce the various PMQs; this agreement was memorialized by Plaintiffs’ counsel in an email. (Id., ¶8, Exh. 2.) On September 16, 2020 and September 29, 2020, Gold emailed SARH’s counsel to schedule the deposition, but did not receive a response to either communication. (Id., ¶¶9-10, Exhs. 3 and 4.)

The Declaration of SARH’s counsel Stephen Rosa (“Rosa”), however, provides a more complete version of the events leading up to the filing of this motion. Gold did not attach the initial deposition notice to her declaration; however, Rosa did. Exhibit A to Rosa’s declaration is the “Noticing of Video Deposition(s) of Person(s) Most Qualified of Defendant San Antonio Regional Hospital and Request to Produce Documents” served on December 3, 2019 (“Initial Notice”). (Rosa Decl., ¶3, Exh. A.) The 5 categories in the Initial Notice were for: (1) “the development of YOUR Medical-Surgical Unit nursing POLICIES AND PROCEDURES from the last five (5) years; (2) the review and/or revision of any YOUR (sic) medical surgical unit nursing POLICIES AND PROCEDURES from the last five (5) years; (3) the communication of any revisions in YOUR POLICIES AND PROCEDURES to YOUR Medical-Surgical Unit nursing staff from the last five (5) years; (4) the continuing education of YOUR nurses from the last five (5) years; and (5) the orientation of YOUR Medical-Surgical Unit nurses from 2008.” Gold likewise did not reference the fact that SARH served an “Objection to Plaintiffs’ Notice of Deposition of Person Most Knowledgeable Set for January 2, 2020” on December 19, 2019, let alone attach a copy of same. (Id., ¶4, Exh. B.) Gold did not advise the court of the fact that, between January 2, 2020 and January 13, 2020, she met and conferred with Laura Stephan (“Stephan”)[2] from Rosa’s office, during which time Stephan identified Leanne Deeds (“Deeds”) as SARH’s PMQ on the policies and procedures and counsel conferred regarding the meaning of the word “orientation” in Category No. 5. (Id., ¶¶5-11, Exhs. C-H.)

On January 21, 2020, Plaintiffs served an “Amended Noticing of Leanne Deeds as the Person Most Qualified of Defendant San Antonio Regional Hospital and Request to Produce Documents” (“Amended Notice”), setting the deposition for January 30, 2020. (Gold Decl., ¶6, Exh. 1 [emphasis added].) On January 27, 2020, however, Stephan advised Gold that after meeting with Deeds on January 24, 2020 to go over the various categories of the PMQ deposition notice and the policies and procedures to ensure that Deeds was the only PMQ, it became clear to Stephan that Deeds was not the PMQ for any of the categories listed in Plaintiff’s Amended Notice; as such, the deposition was taken off calendar. (Rosa Decl., ¶14, Exh. K.) Gold also did not advise the court that on March 11, 2020 Stephan communicated to Gold that Kathi Lioudakis, R.N. (“Lioudakis”) was the PMQ or that, on March 19, 2020, Stephan advised that “legal matters [would] need to take a back burner” due to COVID-19. (Id., ¶¶15-16, Exh. L and M.)

Between March 19, 2020 and September 10, 2020, Rosa heard nothing from Plaintiffs’ counsel regarding the PMQ depositions. (Id., ¶18.) On September 10, 2020, Gold, Rosa and counsel for co-defendant Vigil held a teleconference, during which time counsel discussed a number of topics, including expert depositions, a second IME with Dr. Amos, a second session of Plaintiff Juan Palma’s deposition, the trial appearance of Misty Blackmon, and “A Day in the Life” video. (Id., ¶21.) Gold memorialized the conversation in an email (Gold Decl., ¶8, Exh. 2); however, said email states that “Mr. Ryan indicated that Mr. Rosa has agreed to produce the various PMKs’ subject to discovery motions filed before the COVID-19 pandemic.” Rosa represents that it was his recollection that they were discussing the PMK’s that were requested by Vigil rather than by Plaintiffs’ counsel, and notes that only Vigil had filed a discovery motion before the COVID-19 pandemic. (Rosa Decl., ¶21.)

The motion is denied. Plaintiffs’ request for sanctions is declined. Based on the above, it appears to the court that SARH’s PMQ did not fail to appear or produce documents. The Initial Notice was superceded by the Amended Notice, and the Amended Notice, which specifically referenced Deeds, was moot when it became known that Deeds was not, in fact, the PMQ. No subsequent Notice of Deposition was ever served, despite the fact that SARC’s counsel communicated to Plaintiffs’ counsel in March 2020 that Lioudakis was the correct PMQ.


[1] Motion #1 was filed and mail-served on January 15, 2020 and originally set for hearing on February 20, 2020. On February 4, 2020, moving party filed and mail-served a “Notice of Continuation of Hearing Date for Defendant Carlos Vigil, D.O.’s Motion to Compel the Depositions of Defendant San Antonio Regional Hospital’s PMQ and Other Employees/Agents,” advising therein that the February 20, 2020 hearing had been reset to March 9, 2020. On February 27, 2020, moving party filed and mail-served a “Notice of Continuation of Hearing Date for Defendant Carlos Vigil, D.O.’s Motion to Compel the Depositions of Defendant San Antonio Regional Hospital’s PMQ and Other Employees/Agents,” advising therein that the February 27, 2020 hearing had been reset to April 1, 2020.

On March 18, 2020, a “Notice Re: Continuance of Hearing and Order” was filed, in which the court, on its own motion, continued the April 1, 2020 hearing to June 9, 2020; all counsel were given notice. On April 27, 2020, a “Notice of Continuance Due to COVID-19 State of Emergency Declarations” was filed, in which the court, on its own motion, continued the June 9, 2020 hearing to September 24, 2020 at 10:00 a.m.; notice was given to all counsel. On May 29, 2020, a “Notice of Continuance Due to COVID-19 State of Emergency Declarations” was filed, in which the court, on its own motion, rescheduled the September 24, 2020 hearing date to July 13, 2020 at 10:00 a.m.; all counsel were given notice. On June 19, 2020, a “Notice of Continuance Due to COVID-19 State of Emergency Declarations” was filed, in which the court, on its own motion, rescheduled the motion hearing date to July 17, 2020 at 10:00 a.m.; all counsel were given notice. On July 6, 2020, Vigil filed (and email served to counsel for Plaintiff and SARH) a “Notice of Continuation of Hearing Date for Defendant Carlos Vigil, D.O.’s Motion to Compel the Depositions of Defendant San Antonio Regional Hospital’s PMQ and Other Employees/Agents,” advising therein that the motion hearing date had been rescheduled to October 1, 2020 at 8:30 a.m. On September 21, 2020, a “Notice Re: Continuance of Hearing and Order” was filed, in which the court, on its own motion, continued the October 1, 2020 hearing to December 4, 2020 at 10:00 a.m.; all counsel were given notice.

Motion #2 was filed and email-served on November 10, 2020 and originally set for hearing on December 17, 2020. On November 12, 2020, Plaintiffs filed and email-served a “Notice of Advancement of Plaintiffs’ Motion to Compel the Deposition of Defendant’s PMQ Re Nurse Education and for Sanctions,” advising therein that the December 17, 2020 hearing date had been rescheduled to December 4, 2020.

[2] Stephan has since retired.

Case Number: BC618225    Hearing Date: October 01, 2020    Dept: J

HEARING DATE: Thursday, October 1, 2020

NOTICE: OK[1]

RE: Palma v. Kaiser Foundation Health Plan, Inc. (BC618225)

______________________________________________________________________________

 

Defendant Carlos Vigil, D.O.’s MOTION TO COMPEL THE DEPOSITIONS OF

DEFENDANT SAN ANTONIO REGIONAL HOSPITAL’S PMQ AND OTHER

EMPLOYEES/AGENTS [joined by Plaintiffs Juan Palma, Guardian of Misty Blackmon,

Personally, and the Estate of Misty Blackmon]

Responding Party: Defendant, San Antonio Regional Hospital

Tentative Ruling

See below.

Background

Medical malpractice. On April 27, 2016, Plaintiff Juan Palma, Guardian of Misty Blackmon, Personally, and the Estate of Misty Blackmon (“Plaintiffs”) filed a complaint, asserting causes of action against Defendants Kaiser Foundation Health Plan, Inc. (“KFHPI”), Kaiser Foundation Hospitals (“KFH”), Southern California Permanente Medical Group (“SCPMG”), Kaiser Permanente Ontario Medical Center, Shirin Badrtalei-Shah, D.O. (“Shah”), San Antonio Regional Hospital (“SARH”), Lew B. Disney, M.D., Carlos Vigil, D.O. (“Vigil”) and Does 1-100 for:

  1. Medical Professional Negligence
  2. Non-MICRA Negligence
  3. Breach of Fiduciary Duty
  4. Loss of Consortium

On July 13, 2017, this action was transferred from the personal injury hub (Department 93) to this department. On December 1, 2017, SARH filed a cross-complaint, asserting causes of action against Cross-Defendants Aviation West Charters, LLC, dba Angel Medflight World Wide Air Ambulance (“Aviation”) and Roes 1-100 for:

  1. Equitable Indemnity
  2. Comparative Indemnity
  3. Declaratory Relief

On April 26, 2018, the court granted KFHPI’s motion for summary judgment and granted KFH’s and SCPMG’s respective motions for summary adjudication of the third cause of action.

On December 5, 2018, a Notice of Settlement was filed as between Plaintiffs and KFH, SCPMG, KFHPI and Shah. On January 16, 2019, the “Order Re: Application for Determination of Good Faith Settlement” as between Plaintiffs and KFH, SCPMG, KFHPI and Shah was filed.

On June 27, 2019, a second Notice of Settlement was filed as between Plaintiffs and Aviation.

On July 23, 2019, an “Order Re Amended Application for Determination of Good Faith Settlement of Cross-Defendant, Aviation West Charters, LLC dba Angel Medflight World Wide Air Ambulance” was filed.

On July 23, 2019, an “Order re Defendant Lew B. Disney. M..D.’s Application for Determination of Good Faith Settlement” was filed.

On August 29, 2019, Plaintiffs dismissed KFH, SCPMG, KFHPI and Shah, with prejudice. On May 12, 2020, Lew was dismissed, with prejudice.

On June 22, 2020 a “Joint Stipulation and Order to Extend Five Years” was filed.

The Final Status Conference is set for April 26, 2021. Trial is set for May 4, 2021.

Legal Standard

“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, subd. (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, subd. (a).)

A motion under subdivision (a) shall comply with both of the following: (1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. (2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance…” (Code Civ. Proc., § 2025.450, subd. (b).)

“If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2025.450, subd. (g)(1).)

Discussion

Vigil moves the court for an order to compel SARH’s person(s) most qualified (“PMQ”) on a multiple topics related to SARH’s Electronic Medical Records System, audit trail system, Board of Trustee’s 2015 Rules and Regulations for Medical Staff, custodian of records and the person in charge of personnel who can identify “Ally” or “Ally” herself to appear for deposition.

On November 11, 2019, Vigil served a “Notice of Depositions of San Antonio Regional Hospital Personnel,” seeking to depose SARC’s Custodian of Records and “’Ally’ or PMQ Who Can Identify Her;” the depositions were noticed for January 9, 2020. (Baidas Decl., ¶3, Exh. A.) On November 11, 2019, Vigil also served a “Notice of Deposition of San Antonio Regional Hospital’s PMK Re Elect[r]onic Medical Records System and Audit Trail,” seeking to depose the “PMK Re Elect[r]onic Medical Records System and Audit Trail in Effect in May 2015;” the deposition was noticed for January 8, 2020. (Id.) On December 26, 2019 and December 30, 2019, SARC served objections to the above deposition notices, stating that they were vague, ambiguous and overly broad and that SARC’s counsel was unavailable on the noticed dates. (Id., ¶4, Exh. B.) On January 9, 2020, Vigil’s counsel Carol Baidas (“Baidas”) sent SARC’s counsel Steven Rosa (“Rosa”) a meet and confer letter, requesting, inter alia, that Rosa provide alternate dates for depositions by January 13, 2020. (Id., Exh. C.) No response was received. (Id., ¶6.)

SARC, in opposition, reports as follows: On January 14, 2020, SARC’s counsel Laura Stephan (“Stephan”) wrote to Vigil’s counsel and advised that “all but one of the depositions you have requested were previously noticed by plaintiffs’ counsel” and that “we are in the process of obtaining dates for those depositions.” (Stephan Decl., ¶9, Exh. A.) Stephan further advised that “Ally” was Amanda Clay, RN (“Clay”), and had already been deposed. (Id.) Stephan and Baidas subsequently discussed the Custodian of Records deposition. (Id., ¶10.) Baidas indicated that her office wanted to ensure that all parties had a copy of the same records as in depositions the parties were working on differently paginated records. (Id.) On January 22, 2020, SARC’s counsel’s office sent Vigil’s counsel a complete copy of Plaintiff Misty Blackmon’s chart from SAC, which reflected 1,519 pages. (Id., ¶10, Exh. B.) It is Stephan’s understanding that with transmittal of these records, counsel for Vigil is no longer requesting the deposition of the Custodian of Records. (Id., ¶10.) Additionally, SARC has identified Kamal Pandya (“Pandya”), the Director of IT and Chief Information Officer at SARC, as the PMQ on Electronic Medical Records. (Id., ¶4.) Pandya’s deposition was originally noticed by Plaintiffs’ counsel and scheduled to commence on January 31, 2020; however, Plaintiffs’ counsel took the deposition off calendar. (Id., ¶11). Stephan offered to make Pandya available for deposition on either February 13, 2020 or February 14, 2020, but Plaintiffs’ counsel was not available on these dates. (Id., ¶11, Exh. D.) The parties continue to work on a date which is convenient to everyone to depose Pandya. (Id., ¶11.) As to Vigil’s request for a PMQ on the Rules and Regulations for the Medical Staff, SARC interprets same as requesting a PMQ on Medical Staff Bylaws, which SARC cannot produce, as such an individual would not be under SARC’s control. (Id., ¶6.)

In his September 17, 2020 reply filing, Vigil reports that on September 2, 2020, counsel for SARC agreed to produce the following persons for their depositions: (1) the PMK on Electronic Medical Records; (2) the PMK on Audit Trail; (3) the PMK on Medical Staff Bylaws and (4) the Custodian of Records. (Wu Decl., ¶5.) Vigil no longer seeks to compel the aforementioned depositions on the condition that SARC produces the PMKs and Custodian of Records in a timely manner (ideally within 45 days of the hearing date). Vigil advises that SARC, however, has refused to produce “Ally” on the basis that “Ally” is Clay and has previously been deposed. Vigil contends that good cause exists to depose Clay a second time.

In its September 18, 2020 “response,” SARC points out that Vigil’s reply is essentially a completely new motion to compel a second deposition of Clay.

Based on the above, the court is inclined to continue the hearing for approximately 60 days, to December 4, 2020 at 10:00 a.m. The court declines to consider Vigil’s request for an order to compel a second deposition of Clay, which must be addressed via a separately filed motion.


[1] The motion was filed and mail-served on January 15, 2020 and originally set for hearing on February 20, 2020. On February 4, 2020, moving party filed and mail-served a “Notice of Continuation of Hearing Date for Defendant Carlos Vigil, D.O.’s Motion to Compel the Depositions of Defendant San Antonio Regional Hospital’s PMQ and Other Employees/Agents,” advising therein that the February 20, 2020 hearing had been reset to March 9, 2020. On February 27, 2020, moving party filed and mail-served a “Notice of Continuation of Hearing Date for Defendant Carlos Vigil, D.O.’s Motion to Compel the Depositions of Defendant San Antonio Regional Hospital’s PMQ and Other Employees/Agents,” advising therein that the February 27, 2020 hearing had been reset to April 1, 2020.

On March 18, 2020, a “Notice Re: Continuance of Hearing and Order” was filed, in which the court, on its own motion, continued the April 1, 2020 hearing to June 9, 2020; all counsel were given notice. On April 27, 2020, a “Notice of Continuance Due to COVID-19 State of Emergency Declarations” was filed, in which the court, on its own motion, continued the June 9, 2020 hearing to September 24, 2020 at 10:00 a.m.; notice was given to all counsel. On May 29, 2020, a “Notice of Continuance Due to COVID-19 State of Emergency Declarations” was filed, in which the court, on its own motion, rescheduled the September 24, 2020 hearing date to July 13, 2020 at 10:00 a.m.; all counsel were given notice. On June 19, 2020, a “Notice of Continuance Due to COVID-19 State of Emergency Declarations” was filed, in which the court, on its own motion, rescheduled the motion hearing date to July 17, 2020 at 10:00 a.m.; all counsel were given notice. On July 6, 2020, Vigil filed (and email served to counsel for Plaintiff and SARH) a “Notice of Continuation of Hearing Date for Defendant Carlos Vigil, D.O.’s Motion to Compel the Depositions of Defendant San Antonio Regional Hospital’s PMQ and Other Employees/Agents,” advising therein that the motion hearing date had been rescheduled to October 1, 2020 at 8:30 a.m.

Case Number: BC618225    Hearing Date: January 15, 2020    Dept: J

HEARING DATE: Wednesday, January 15, 2020

NOTICE: OK

RE: Palma v. Kaiser Foundation Health Plan, Inc. (BC618225)

______________________________________________________________________________

 

Plaintiffs Juan Palma’s, Guardian of Misty Blackmon, Personally, and the Estate of

Misty Blackmon’s MOTION TO COMPEL THE DEPOSITION OF DEFENDANT’S

PMQ

Responding Party: None (unopposed, as of 1/10/20, 12:18 p.m.; due 1/2/20)

Tentative Ruling

Plaintiffs Juan Palma’s, Guardian of Misty Blackmon, Personally, and the Estate of

Misty Blackmon’s unopposed Motion to Compel the Deposition of Defendant’s PMQ is GRANTED.

Background

Medical malpractice. On April 27, 2016, Plaintiff Juan Palma, Guardian of Misty Blackmon, Personally, and the Estate of Misty Blackmon (“Plaintiffs”) filed a complaint, asserting causes of action against Defendants Kaiser Foundation Health Plan, Inc. (“KFHPI”), Kaiser Foundation Hospitals (“KFH”), Southern California Permanente Medical Group (“SCPMG”), Kaiser Permanente Ontario Medical Center, Shirin Badrtalei-Shah, D.O. (“Shah”), San Antonio Regional Hospital (“SARH”), Lew B. Disney, M.D., Carlos Vigil, D.O. (“Vigil”) and Does 1-100 for:

  1. Medical Professional Negligence
  2. Non-MICRA Negligence
  3. Breach of Fiduciary Duty
  4. Loss of Consortium

On July 13, 2017, this action was transferred from the personal injury hub (Department 93) to this department. On December 1, 2017, SARH filed a cross-complaint, asserting causes of action against Cross-Defendants Aviation West Charters, LLC, dba Angel Medflight World Wide Air Ambulance (“Aviation”) and Roes 1-100 for:

  1. Equitable Indemnity
  2. Comparative Indemnity
  3. Declaratory Relief

On April 26, 2018, the court granted KFHPI’s motion for summary judgment and granted KFH’s and SCPMG’s respective motions for summary adjudication of the third cause of action.

On December 5, 2018, a Notice of Settlement was filed as between Plaintiffs and KFH, SCPMG, KFHPI and Shah. On January 16, 2019, the “Order Re: Application for Determination of Good Faith Settlement” as between Plaintiffs and KFH, SCPMG, KFHPI and Shah was filed.

On June 27, 2019, a second Notice of Settlement was filed as between Plaintiffs and Aviation.

On July 23, 2019, an “Order Re Amended Application for Determination of Good Faith Settlement of Cross-Defendant, Aviation West Charters, LLC dba Angel Medflight World Wide Air Ambulance” was filed.

On July 23, 2019, an “Order re Defendant Lew B. Disney. M..D.’s Application for Determination of Good Faith Settlement” was filed.

On August 29, 2019, Plaintiffs dismissed KFH, SCPMG, KFHPI and Shah, with prejudice.

A Final Status Conference is set for March 2, 2020. Trial is set for March 10, 2020.

Legal Standard

CCP § 2025.010 provides, in relevant part, that “[a]ny party may obtain discovery. . .by taking in California the oral deposition of any person, including any party to the action. The person deposed may be a natural person, an organization such as a public or private corporation, a partnership, an association, or a governmental agency.”

CCP § 2025.230 states that “[i]f the deponent is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonable available to the deponent.”

CCP § 2025.450(a) provides that if, after a deposition notice is served, 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, fails to appear for examination or to produce for inspection any document, electronically stored information, or things described in the deposition notice, the party noticing the deposition may move for an order compelling the deponent’s attendance and testimony, and the production of any document, electronically stored information, or things described in the deposition notice.

A motion to compel deposition shall be accompanied by a meet and confer declaration under Section 2016.040 or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance. (CCP § 2025.450(b)(2).)

The motion shall also set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. (CCP § 2025.450(b)(1).) “Good cause” for production of documents may be established where it is shown that the request is made in good faith and that the documents sought are relevant to the subject matter and material to the issues in the litigation. See Associated Brewers Distributing Co. v. Superior Court of Los Angeles County (1967) 65 Cal.2d 583, 588.

A court shall impose monetary sanctions if the motion to compel is granted, unless the one subject to sanction acted with substantial justification or other circumstances would make the imposition of the sanction unjust. (CCP § 2025.450(g)(1).)

Any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement providing all information necessary to understand each discover request and all the responses at issue. (California Rules of Court, Rule 3.1345(a),(c).)

Discussion

Plaintiffs move the court for an order to compel SARH’s person(s) most qualified (“PMQ”) on a variety of topics related to SARH’s phone logs, electronic medical records system and audit trail (hereinafter collectively, “EMR Information”) to appear for deposition.

On June 12, 2019, Plaintiffs served a “Noticing of Deposition of Person(s) Most Qualified of Defendant San Antonio Regional Hospital;” the deposition was noticed for July 17, 2019. (Gold Decl., ¶3, Exh. 1.) Plaintiffs did not receive any objection from SARH concerning the deposition. (Id., ¶5.) On July 16, 2019, counsel for SARH conveyed to Plaintiffs’ counsel telephonically that the identities of the PMQs were still being determined by SARH. (Id., ¶6.) Due to that, Plaintiffs agreed to take the PMQ deposition off calendar, to be rescheduled on a later date. (Id.) On September 4, 2019, Plaintiffs’ counsel Samantha Gold (“Gold”) emailed SARH’s counsel to request the availability of SARH and the PMQs for deposition. (Id., ¶10, Exh. 2.) Gold did not receive a response to this email. (Id.) On October 2, 2019, Plaintiffs’ counsel’s office sent a letter to SARH’s counsel, again asking for the availability of the PMQs for deposition, along with a copy of the original deposition notice. (Id., ¶11, Exh. 4.) Having not received a response to the email, Gold raised the subject with SARH’s counsel while they were appearing ex parte on October 11, 2019. (Id., ¶12.) SARH’s counsel informed Gold that although the PMQs had been identified, SARH’s counsel’s trial schedule had prevented the depositions from occurring previously. (Id.) SARH’s counsel agreed to work with Plaintiffs’ counsel’s office to set dates for the PMQ deposition. (Id.) On November 6, 2019, Gold attempted to meet and confer with SARH’s counsel. (Id., ¶13, Exh. 5.) Gold did not receive any response. (Id.)

The motion demonstrates that SARH’s PMQ(s) has/have failed to appear for his/her/their properly noticed deposition, and that Plaintiffs’ counsel adequately met and conferred regarding same. Accordingly, the unopposed motion is GRANTED.

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