Judge: Daniel M. Crowley, Case: 21STCV07040, Date: 2022-10-12 Tentative Ruling

Case Number: 21STCV07040    Hearing Date: October 12, 2022    Dept: 28

Plaintiff, Berenice Rojo’s Motion to Compel Deposition of Defendant Jeff Chang, M.D.

Having considered the moving and opposing papers, the Court rules as follows.

BACKGROUND

On February 23, 2021, Plaintiff Berenice Rojo (“Plaintiff”) filed this action against Defendants City of Hope (“City”), Jeff Chang, M.D. (“Chang”) and Laura Kruper, M.D. (“Kruper”) for medical malpractice. Plaintiff later amended the complaint to include Defendant Evelyn Bonilla, M.D. (“Bonilla”).

On May 18, 2021, City filed an answer. On August 3, 2021, Chang and Kruper filed an answer. On July 8, 2022, Bonilla filed an answer.

On July 7, 2022, Plaintiff filed a Motion to Compel Defendant Jeff Chang, M.D.’s Deposition to be heard on October 12, 2022.  On September 28, 2022, Chang filed an opposition.

Trial is currently scheduled for February 23, 2023.

PARTY’S REQUESTS

Plaintiff requests the Court order Chang to appear for his deposition and impose sanctions on Chang totaling $3,060.00.

Chang requests the Court deny the motion and impose sanctions on Plaintiff totaling $3,145.00.

LEGAL STANDARD

Code of Civil Procedure § 2025.450 allows the Court to compel a party’s appearance and to produce documents. 

“If, after service of a deposition notice, a party to the action… without having served a valid objection… fails to appear for examination, or to proceed with it, or to produce for inspection any document 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 or tangible thing described in the deposition notice.”  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 or things described in the deposition notice, by a declaration stating the petitioner has contacted the deponent to inquire about the nonappearance.”

CCP § 2025.450 provides that if a motion made under 2025.450 is granted, the court shall impose a monetary sanction in favor of the party who noticed the deposition 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.

Misuse of the discovery process includes (c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense; (d) Failing to respond or to submit to an authorized method of discovery; and (h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery. CCP § 2023.010.

DISCUSSION

Plaintiff originally served Chang with a notice of deposition for August 27, 2021; since then, Plaintiff has noticed Chang’s deposition 5 additional times. Chang stated that he objected to the first two notices of deposition as Plaintiff did not coordinate times with Chang. Parties agreed to take Chang’s deposition on December 13, 2021, but Plaintiff’s counsel ended up canceling. Parties did not meet and confer regarding rescheduling the deposition until after Plaintiff served a notice of deposition for May 3, 2022. Parties then paused discussion of the deposition in order to focus on mediation. Plaintiff did not attempt to coordinate scheduled prior to serving this deposition. The most recent deposition, for June 24, 2022, was also unilaterally noticed. Chang objected to this deposition but suggested two additional dates. Parties also disagree on whether or not these depositions should be taken in person.

The Court grants the motion to compel Chang’s deposition. Although it does not appear that Chang has refused deposition in an attempt to misuse the discovery process, the fact remains that Plaintiff has been attempting to take Chang’s deposition for over a year. The requested deposition will be conducted via remote means.

The Court will not award sanctions against either party. Both parties failed to properly ask for and offer available dates for deposition, necessitating the Court order. Therefore, the Court denies both requests for sanctions.

CONCLUSION

Plaintiff Berenice Rojo’s Motion to Compel Deposition of Defendant Jeff Chang, M.D. is GRANTED. Chang is ordered to appear for a mutually agreed upon deposition within 30 days of the hearing on this motion.

Plaintiff Berenice Rojo’s Request for Sanctions is DENIED.

Defendant Jeff Chang, M.D.’s Request for Sanctions is DENIED.

            Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.