Case Number: 22VECV00884    Hearing Date: April 19, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Plaintiff Kynan Bruce sues Defendants California Care, Inc., Edgar Melkumyan, Does 1-250 pursuant to a June 27, 2022 Complaint alleging a single claim of Wrongful Death. The claim is premised on allegations that on June 14, 2021, Timothy Bruce—who during all relevant times suffered from Stage IV lung cancer and was no longer able to care for himself—was admitted to California Care, Inc.’s facility located at 18975 Collins Street, Tarzana, California 91356 and remained there for five weeks, during which time, due to Defendants’ failure to provide Timothy Bruce with proper care and attention, Timothy Bruce developed pressure sores on his back, hip and coccyx area that continued to worsen until they became Stage IV injuries, exposing muscle and bone, proximately resulting in Timothy Bruce’s death on July 19, 2021.

This action was related to LASC Action No. 21STCV38690 on June 30, 2022. Action 21STCV38690 was brought on October 20, 2021 by Kynan Bruce as successor in interest to Timothy Bruce and alleges (1) Elder Abuse and (2) Negligent Hiring and Supervision against Defendants California Care, Inc. and Edward Melkumyan on the same grounds, except for the allegations of wrongful death.

On November 29, 2022, Plaintiff Kynan Bruce made a Motion for Order Compelling Silver Years Healthcare, Inc.’s Compliance with Deposition Subpoena and Request for Sanctions. The motion seeks to compel deposition testimony from Silver Years Healthcare, Inc.’s (SYI) custodian of records and production of records related to an unspecified period of time during which Timothy Bruce was under the separate custody and control of SYI. The motion also seeks monetary sanctions in the amount of $1,700.

The record fails to reflect an opposition by SYI.

Plaintiff Bruce’s motion is now before the Court.

Motion to Compel Nonparty Deposition Attendance and Production, and Sanctions

Legal Standard

A motion to compel nonparty attendance or production at a deposition can be made by the party that served the deponent on the grounds that (1) the nonparty deponent did not attend a deposition or appeared but refused to proceed with the deposition and (2) the nonparty deponent did not produce documents, electronically stored information, or tangible things under the deponent’s control required by the deposition notice or subpoena. (See Sears, Roebuck, & Co. v. National Un. Fire Ins. (2005) 131 Cal.App.4th 1342, 1351; Code Civ. Proc., § 2025.450, subd. (a) [compel party deponent].) Although Code of Civil Procedure section 2025.450 does not apply to nonparties and section 2025.480 does not address attendance of nonparties, courts regularly consider and grant motions compelling nonparties to attend depositions and produce documents. (See, e.g., Terry v. SLICO (2009) 175 Cal.App.4th 352, 355 [court considered motion to compel nonparty to attend deposition]; Sears, Roebuck, & Co. v. National Un. Fire Ins., supra, at p. 1351 [court held that subpoenaing parties can move to compel when a nonparty deponent did not appear at deposition or produce documents]; Brun v. Bailey (1994) 27 Cal.App.4th 641, 645-646 [court considered motion to compel nonparty to attend deposition].)

To establish this ground, a movant must:

Identify the deponent and state that the deponent is a nonparty (see Code Civ. Proc., § 2025.450, subd. (a));

Show the deponent was properly served with a deposition notice or subpoena (see Code Civ. Proc., § 2025.280, subd. (b); Lopez v. Watchtower Bible & Tract Soc’y (2016) 246 Cal.App.4th 566, 600);

Show the deponent was required to appear for a deposition at the date, time, and place identified in the deposition notice or subpoena and that the date for the deposition was not rescheduled (see Code Civ. Proc., § 2025.280, subd. (b));

Show the deponent did not appear at the deposition or appeared but refused to proceed (see Sears, Roebuck, & Co. v. National Un. Fire Ins., supra, 131 Cal.App.4th at p. 1351; cf. Code Civ. Proc., § 2025.450, subd. (a) [motion to compel nonparty deponent]);

Show the deponent did not produce documents, electronically stored information, or tangible things under the deponent’s control required by the deposition notice or subpoena (see Code Civ. Proc., § 2025.450, subd. (a));

Show good cause for production (Code Civ. Proc., §§ 1985, subd. (b) [subpoena for production from non-party deponent], 2025.450, subd. (b)(1) [motion to compel production from party deponent]; Calcor Space Facility, Inc. v. Superior Court (1994) 53 Cal.App.4th 216, 224 [showing of good cause required when compelling production from nonparties]); and

Show a follow-up contact with the deponent was made [see Sears, Roebuck, & Co. v. National Un. Fire Ins., supra, 131 Cal.App.4th at p. 1351; cf. Code Civ. Proc., § 2025.450, subd. (b)(2) [“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”].)

To show good cause, the movant should give a detailed statement of how the evidence sought is material to the issues in the case. (See Code Civ. Proc., § 1985, subd. (b).) The movant should also state that the documents, electronically stored information, or tangible things sought at the deposition are subject to discovery because they are within the scope of discovery. (See Code Civ. Proc., § 2025.480, subd. (i); see also See Code Civ. Proc., § 2017.010 [scope of discovery].)

Further, the motion must also be accompanied by several items, including:

A declaration providing (1) the above grounds for the requested relief, (2) that a follow-up contact was made (Sears, Roebuck, & Co. v. National Un. Fire Ins., supra, 131 Cal.App.4th at p. 1351), and (3) sanctions grounds, if any;

A copy of the deposition notice or subpoena with proof of service;

A deposition transcript, if applicable (Cf. Code Civ. Proc., § 2025.480, subd. (h); see also Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 135 [deposition transcript need not be provided when motion to compel involves failure to produce documents requested in business-records subpoena because no part of transcript will be relevant]);

A separate statement for the production of records unless (1) no response has been provided to the discovery request or (2) the Court has allowed the moving party to submit a concise outline of the discovery request and each response in dispute in lieu of a separate statement (Cal. Rules of Court, rule 3.1345, subds. (a)(4)-(5), (b));

Proof of service for the motion to compel (see Cal. Rules of Court, rule 3.1300, subd. (c)); and

A proposed order, if desired (Cal. Rules of Court, rule 3.1113, subd. (m)).

Analysis

Plaintiff’s motion identifies nonparty Silver Years Healthcare, Inc. (SYI) as the nonparty deponent served with a deposition subpoena to attend deposition and produce documents. (Mot., p. 1.)

The motion shows proper service of the deposition subpoena on SYI on October 25, 2022. (Mot., Ex. 1, Form SUBP-020, Proof of Service.)

The motion shows that SYI was required to attend the deposition by virtue of service of the deposition. (Mot., Ex. 1; see Code Civ. Proc., § 2025.280, subd. (b).)

The motion shows that SYI’s custodian of records failed to appear at the November 23, 2022 deposition and did not produce documents. (Mot., Baladejo Decl., Ex. 4.)

The motion shows good cause to produce the requested documents and that such documents are within the scope of discovery because the motion and Plaintiff’s counsel’s declaration explain that the documents sought by Plaintiff relate to SYI’s care of Timothy Bruce at what appears to be its 11436 Vanowen Street, North Hollywood, CA 91605 location, and that without such documents, Plaintiff cannot determine the proper apportionment of liability in this action. (Mot., Baladejo Decl., ¶ 5.)

The motion shows that a follow-up contact with SYI was made by Plaintiff’s counsel but that such contact has not yielded SYI’s deposition attendance or production of documents. (See Mot., Baladejo Decl., ¶ 6 [“[A]ll follow up calls by Plaintiff’s counsel’s office since November 21, 2022 are being forwarded directly to voicemail without any return calls”].)

Moreover, the motion attaches the Baladejo declaration summarizing (1) the grounds in support of an order compelling deposition attendance and production of documents, (2) follow-up contacts with SYI, and (3) sanctions grounds. (Mot., Baladejo Decl., ¶¶ 1-7.)

The motion attaches a copy of the deposition subpoena served on SYI on October 25, 2022. (Mot., Ex. 1, Form SUBP-020, Proof of Service.)

The motion attaches proper proof of service of this motion on SYI. (Mot., Proof of Service.)

A proposed order is not attached but it need not be provided. (Cal. Rules of Court, rule 3.1113, subd. (m).)

Similarly, no deposition transcript was required based on SYI’s nonattendance (Unzipped Apparel, LLC v. Bader, supra, 156 Cal.App.4th at p. 135) and no separate statement was required generally (Cal. Rules of Court, rule 3.1345, subd. (b)).

Based on these grounds and evidence, the Court GRANTS the motion to compel deposition attendance and production of documents.

Sanctions

The court must impose monetary sanctions against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a deponent (party or nonparty) to answer any question or to produce any document, electronically stored information, or tangible things under the deponent’s control required by the deposition notice or subpoena. (Code Civ. Proc., § 2025.480, subds. (a), (j).) The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed. (Cal. Rules of Court, rule 3.1348, subd. (a).)

The Court must also impose sanctions where a party or nonparty fails to attend or proceed with a deposition unless there is substantial justification therefor or the imposition of sanctions is unjust. (Code Civ. Proc., § 2025.430.)

Last, the Court must impose a $250 monetary sanction against a deponent (party or nonparty) or attorney if the deponent did not respond in good faith to (1) a request for the production of documents at a deposition or (2) an inspection demand. (Code Civ. Proc., § 2023.050, subd. (a)(1).)

Plaintiff requests $1,700 in monetary sanctions against SYI based on SYI’s custodian of record’s nonattendance at the November 23, 2022 deposition and based on SYI’s nonproduction of documents. (Mot., p. 4, Baladejo Decl., ¶ 7.)

Based on the proper service of the deposition subpoena and SYI’s noncompliance therewith, and despite SYI’s failure to oppose this motion, the Court GRANTS these reasonable sanctions. (Mot., Baladejo Decl., ¶ 7 [recovery for four hours at rate of $425 per hour]; see Code Civ. Proc., § 2025.430 [sanctions for failure to comply]; Cal. Rules of Court, rule 3.1348, subd. (a) [court may grant sanctions even if party failed to oppose].)

The Court also GRANTS additional sanctions of $250 based on SYI’s failure to produce documents in good faith. (Code Civ. Proc., § 2023.050, subd. (a)(1).)

Conclusion

Plaintiff Kynan Bruce’s Motion for Order Compelling Silver Years Healthcare, Inc.’s Compliance with Deposition Subpoena is GRANTED.

The corresponding Request for Sanctions is also GRANTED in the amount of $1,950.