Judge Jill Feeney, Case Number: 21STCV01719, Date: 2023-09-27 Tentative Ruling

This is an action for negligence, premises liability, negligent supervision, negligent infliction of emotional distress, public nuisance, and professional negligence. Plaintiffs Renee Lemos and Christopher Lopez Jr., by and through his guardian ad litem Renee Lemos, allege that in December 2019, the Office of Environmental Health and Safety notified Plaintiffs that the drinking water coming from water fountains at Lopez’s school contained unsafe levels of lead. (SAC ¶¶21-24.) On December 12, 2019, Lopez began complaining of a stomachache. (SAC ¶25.) On December 15, 2019, Lemos returned home and discovered Lopez was on the couch, cold to the touch, and vomiting through the sides of his mouth. (SAC ¶27.) When paramedics to Lopez to the emergency room at Olive View-UCLA Medical Center (“Olive View”), security guards demanded that Lopez be searched for needles or weapons, delaying his treatment at the hospital. (SAC ¶29.)

Despite knowing Lopez suffered from anxiety, the CT technician allowed Lopez to lie in the scanner for over 10 minutes without running the scan. (SAC ¶30.) Lopez became cold and began to vomit through the sides of his mouth. (SAC ¶¶31-32.) The CT technician threw a towel at Lemos and instructed her to clean up Lopez’s vomit. (SAC ¶32.) Lopez then began to foam at the mouth, turned blue, and lost his pulse. (SAC ¶32.) Rather than calling a nurse or performing CPR, the technician told Lemos to find a nurse and notify them of a code blue. (SAC ¶32.) Lemos went to the hallways screaming code blue and that her son was not breathing. (SAC ¶33.) A group of nurses ran to the CT room to administer CPR to Lopez. (SAC ¶33.) Lopez was airlifted to LAC-USC Medical Center, where doctors discovered that Lopez had appendicitis and that his appendix had ruptured, causing him to go into septic shock and cardiac arrest. (SAC ¶34.)

Plaintiffs allege that Lopez’s appendicitis was directly caused by the lead-contaminated water at Lopez’s school. (SAC ¶35.) Additionally, Plaintiffs allege that County failed to ensure that its CT technicians knew how to perform CPR and failed to use reasonable care in responding to a cardiac arrest. (SAC ¶62.) Finally, Plaintiffs allege that County’s employees failed to notice Lopez was in distress during his CT scan, failed to immediately render aid when Plaintiff went into cardiac arrest, and failed to have policies and procedures in place for when a patient undergoing CT scans goes into cardiac arrest. (SAC ¶67.)

On January 15, Plaintiffs filed their Complaint against Defendants Los Angeles Unified School District (“LAUSD”), the City of Los Angeles (“City”), and the County of Los Angeles (erroneously sued as itself and Olive View-UCLA Medical Center (“County”)).

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.) A party desiring to take an oral deposition shall give a notice in writing which states the specification of reasonably particularly of any materials to be produced by the deponent. (Code Civ. Proc., § 2025.220, subd. (a)(4).) A properly served deposition notice is effective to require a party to attend and to testify, as well as to produce documents for inspection and copying. (Code Civ. Proc., § 2025.280, subd. (a).) A party served with a deposition notice waives any error or irregularity unless that party promptly serves a written objection at least three calendar days prior to the date for which the deposition is scheduled. (Code Civ. Proc., § 2025.410, subd. (a).)

“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, … 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 … described in the deposition notice.” (Code Civ. Proc., § 2025.450, subd. (a).)

Here, County’s counsel testifies that on January 27, 2022, County served a deposition notice on Renee Lemos individually and as guardian ad litem for Christopher Lopez, Jr. for April 4, 2022 which was taken off calendar. (Khosravi Decl., ¶3.) Counsel requested available dates from Plaintiff’s former counsel and did not receive an answer. (Id., ¶4.) In February 2023, County served a second notice on Christopher Lopez. (Id., ¶5.) In June 2023, after Plaintiff’s counsel was relieved as counsel, County’s counsel served a third deposition notice as to both Renee Lemos and Christopher Lopez.(Id., ¶¶8-9.) On July 27, 2023, Lemos and Lopez appeared for their depositions but refused to answer questions without counsel present and were urged to find new counsel as soon as possible. (Id., ¶¶11-12.) As a result of Lemos and Lopez’s failure to answer questions at deposition, County incurred $1,185.75 in expenses for the court reporter. (Id., ¶13.)

For nonparties, a party may take the oral deposition of a person who is not a party to the action. (Code Civ. Proc., section 2020.010.) A deposition subpoena may command the testimony of the deponent. (Code Civ. Proc., section 2020.020.) A service of a deposition subpoena shall be affected a sufficient time in advance of the deposition to provide the deponent a reasonable opportunity to locate and produce any designated documents and, where personal attendance is commanded, a reasonable time to travel to the place of deposition. (Code Civ. Proc., § 2020.220, subd. (a).) Personal service of any deposition subpoena is effective to require a deponent who is a resident of California to: personally appear and testify, if the subpoena so specifies; to produce any specified documents; and to appear at a court session if the subpoena so specifies. (Code Civ. Proc., § 2020.220, subd. (c).) A deponent who disobeys a deposition subpoena may be punished for contempt without the necessity of a prior order of the court directing compliance by the witness. (Code Civ. Proc., § 2020.240.) A deponent who disobeys the subpoena may be punished for contempt is also subject to the forfeiture and payment of $500 in damages under Code Civ. Proc., § 1992. (Code Civ. Proc., § 2020.240.)

A “written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail¿or electronic service¿at an address¿or electronic service address¿specified on the deposition record.” (Cal. Rules of Court, Rule 3.1346.)

Here, Renee Lemos is not a party to the action because her claims against County were removed from the Second Amended Complaint. Although Lemos is Lopez’s guardian ad litem, a guardian ad litem is not a party to an action. Although County served a deposition notice on Lemos (Khosravi Decl., Exh. J), there is no evidence that County ever served a deposition subpoena on Lemos as required by Code Civ. Proc., § 2020.220. Additionally, County failed to personally serve this motion on Lemos as required by Cal. Rules of Court, Rule 3.1346 and there is no evidence Lemos agreed to accept service via mail or electronic service.

If a motion to compel deposition is granted, sanctions are mandatory 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).)

Here, the motion was only granted as to Lopez. Because the court reporter expenses for the failed July 2023 deposition were as to both Lemos and Lopez, the court reduces the amount for those expenses to $505.25.. Additionally, the Court awards $920 in attorney fees for four hours of attorney time at a rate of $230.