Judge: Armen Tamzarian, Case: BC575230, Date: 2024-01-12 Tentative Ruling

Case Number: BC575230    Hearing Date: February 1, 2024    Dept: 52

Defendant Dignity Health dba St. Mary Medical Center’s Motion for Leave to Conduct Second Limited Deposition of Plaintiff Noushin Khoiny, M.D.

Defendant Dignity Health dba St. Mary Medical Center moves for leave to conduct a second deposition of plaintiff Noushin Khoiny, M.D.  Generally, a natural person can only be deposed once.  (CCP § 2025.610(a).)  But “for good cause shown, the court may grant leave to take a subsequent deposition.”  (Id., subd. (b).)

Defendant shows good cause to depose plaintiff again.  This action arises from plaintiff’s termination in 2014.  Defendant deposed plaintiff in July 2017.  (Lalitte Decl., ¶ 3.)  Plaintiff claims damages extending beyond July 2017.  Trial is now set for May 8, 2024, nearly seven years after plaintiff was deposed.  What has happened since July 2017 is directly relevant.  More than two thirds of the period relevant to plaintiff’s damages came after her deposition.  Not permitting defendant to depose plaintiff about the past seven years could subject it to unfair surprise at trial. 

Plaintiff contends defendant should be limited to deposing plaintiff’s experts on damages.  That defendant has other means to discover information on the same topics does not preclude it from showing good cause to depose plaintiff again.  The seven years that have passed since July 2017 establish good cause.

Plaintiff argues this motion is procedurally defective as an untimely motion to compel deposition answers under Code of Civil Procedure section 2025.480.  That statute does not apply.  Section 2025.480(a) provides, “If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.”  Such a “motion shall be made no later than 60 days after the completion of the record of the deposition.”  (Id., subd. (b).) 

Section 2025.480 applies when, after a party’s deposition, the party who took the deposition seeks answers or documents the deponent did not provide.  (See Weinstein v. Blumberg (2018) 25 Cal.App.5th 316, 318 [motion made after party testified at deposition].)  Though defendant served a notice of plaintiff’s subsequent deposition in September 2023, plaintiff objected and did not appear.  There was no “record of the deposition” because there was no deposition.    

Plaintiff’s reliance on Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164 is misplaced.  That decision is limited to business record subpoenas.  The court stated, “In Unzipped [Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123], the court specifically noted that for a business record subpoena, such as the subpoena of Bizcom at issue here, the 60-day period during which a motion to compel must be filed, begins to run when the deponent serves objections on the party.  At the time the objections are served, the record of deposition is complete.”  (Id. at p. 1192.) 

As a later decision explained, “The nonparty discovery statutes establish a one-step process for a nonparty responding to a business records subpoena.  …  This one-step process minimizes the burden on the nonparty.  It may comply (or not) with the subpoena, and it can be confident that its obligations under the subpoena will be swiftly addressed and adjudicated. The one-step process also reflects the reality that the discovery demanded from a nonparty will generally be more limited, and consequently less subject to lengthy dispute, than discovery demanded from a party.”  (Board of Registered Nursing v. Superior Court of Orange County (2021) 59 Cal.App.5th 1011, 1033.)  A different process applies to depositions of parties. 

Assuming this motion is anything other than one for leave to conduct a subsequent deposition under section 2025.610(b), it would be a motion under section 2025.450(a) to compel a deposition after a party “fails to appear for examination, or to proceed with it, or to produce for inspection any document… described in the deposition notice”—which has no time limit.  Accepting plaintiff’s argument would make section 2025.450 largely superfluous.   

Disposition

Defendant Dignity Health dba St. Mary Medical Center’s motion for leave to conduct second deposition of plaintiff is granted.  The court hereby grants defendant leave to depose plaintiff Noushin Khoiny, M.D., for up to 3.5 hours, limited to the subject of plaintiff’s damages (including mitigation efforts) since July 2017.  Defendant’s notice of subsequent deposition shall not include any document requests.  The parties are ordered to meet and confer within seven days to select a date for plaintiff’s subsequent deposition.