Tentative Rulings

Case Number: BC693486    Hearing Date: November 01, 2019    Dept: 5

Superior Court of California

County of Los Angeles

Department 5

BACKGROUND

Plaintiff Matthew Lopez-Bautista (“Plaintiff”) is a minor who suffered injuries during his birth at Defendant Citrus Valley Health Partners, Inc. (“Defendant”). Plaintiff moves to compel the depositions of Defendant’s persons most qualified to testify on specified topics, as well as three of Defendant’s employees, and Defendant’s retained expert.

LEGAL STANDARD

Plaintiff has the right to take Defendant’s deposition and is entitled to do so without leave of court at any time after Plaintiff served Defendants, or after Defendants appeared in the action. (See Code Civ. Proc., § 2025.210, subd. (a).) Per Code of Civil Procedure section 2025.450, if a party to the action fails to appear for deposition after service of a deposition notice and the party has not served a valid objection to that deposition notice, the party that noticed the deposition may move for an order to compel the deponent to attend and testify at deposition. (Code Civ. Proc., §2025.450, subd. (a).)

DISCUSSION

Plaintiff noticed the deposition of Defendant’s person most qualified to testify on specified topics for August 30, 2019. Defendant did not object to the deposition notice. Nonetheless, the deposition did not go forward on that date. (Declaration of David L. Scott, ¶¶ 4-5, Exhibit G.) Accordingly, the motion to compel Defendant to produce a person (or persons) most qualified to testify is granted.

Plaintiff also served deposition notices on three of Defendant’s employees: (1) Marilyn Dowdle; (2) Susan Montgomery; and (3) Joann Vorndran. The service of deposition notices is sufficient to compel the attendance of Defendant’s employees at deposition. (Code Civ. Proc., § 2025.280, subd. (a). Defendant concedes its employees must appear for depositions. (Declaration of Laura L. Stephan, ¶ 4.) The Court therefore grants the motion to compel these depositions.

Finally, Plaintiff seeks leave to depose Marc Incerpi, M.D. (“Incerpi”). Defendant relies on Incerpi’s declaration in support of its motion for summary judgment against Plaintiff. For this reason, Plaintiff is entitled to take Incerpi’s deposition at this stage if “there is a legitimate question regarding the foundation of the opinion of the expert.” (St. Mary Medical Center v. Superior Court (1996) 50 Cal.App.4th 1531, 1540.) Plaintiff has not detailed any such concerns. Accordingly, Plaintiff is not entitled to depose Incerpi prior to the exchange of expert witness designations. Nevertheless, if Plaintiff is not able to take Incerpri’s deposition sufficiently in advance of his deadline to oppose Defendant’s motion for summary judgment, the Court may be forced to deny the motion outright or continue the hearing on the motion. (See Code Civ. Proc. § 437c(h).) For that reason, even though the Court is denying Plaintiff’s motion without prejudice, the Court orders the parties to meet-and-confer whether Defendant will stipulate to allow Plaintiff to take Incerpi’s deposition prior to the exchange of expert witness designations.

Plaintiff seeks sanctions in the amount of $2,100 against Defendant and counsel-of-record. The depositions of Defendant’s employees were originally noticed for early August 2019, following which Plaintiff’s counsel repeatedly requested alternative dates from Defendant’s counsel. Although Defendant’s counsel responded to each inquiry, no dates were provided until after Plaintiff filed this motion on October 4, 2019. The Court finds that Defendant abused the discovery process by not providing alternative deposition dates in a timely fashion. The Court finds that Defendant, and not Defendant’s counsel, is responsible for this issue. Therefore, the Court orders Defendant (but not Defendant’s counsel) to pay sanctions in the amount of $1,250, based upon five hours of attorney time at $250 per hour, plus a filing fee of $60. The notice is sufficient with respect to sanctions against Defendant.

CONCLUSION AND ORDER

Plaintiff’s motion to compel the deposition of Defendant’s person most qualified to testify on specified topics is granted. The deposition shall occur with twenty (20) days of notice unless the parties stipulate to a different date, assuming the depositions have not occured.

Plaintiff’s motion to compel the depositions of Marilyn Dowdle, Susan Montgomery; and Joann Vorndran is granted. The depositions shall occur with twenty (20) days of notice unless the parties stipulate to different dates, assuming the depositions have not occurred.

Plaintiff’s motion to compel the deposition of Marc Incerpi, M.D. is denied without prejudice. The parties are ordered to meet-and-confer to determine whether Defendant will stipulate to allow Plaintiff to take this deposition in advance of the deadline for Plaintiff’s opposition to Defendant’s motion for summary judgment.

Defendant (but not Defendant’s counsel) is ordered to pay sanctions in the amount of $1,310 within twenty (20) days of notice of this order.

Plaintiff shall provide notice and file proof of such with the Court.

DATED: November 1, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court