Judge: Margaret L. Oldendorf, Case: 22BBCV00073, Date: 2023-05-24 Tentative Ruling
Case Number: 22BBCV00073 Hearing Date: May 24, 2023 Dept: P
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
NORTHEAST DISTRICT
I.
INTRODUCTION
This litigation concerns the death
of Barbara Bereny (Decedent) during the time she was a resident at a Residential
Care Facility for the Elderly (RCFE). Decedent was a resident at Sunrise of
Studio City, which is owned by Sunrise Senior Living Management, Inc. (SSLMI). Shahin
Taghizadeh, Sunrise Studio City’s administrator, was named as a defendant but
later dismissed. Nominal defendants include Decedent’s lawful heirs.
The complaint alleges elder abuse, negligence, and willful
misconduct (on behalf of Decedent by her successor in interest) and wrongful
death (by Decedent’s heirs). Plaintiff Joshua Bereny pursues Decedent’s claims
as her successor in interest and sues on his own behalf for wrongful death.
Before the Court is Bereny’s motion to compel the
deposition of SSLI’s Director of Engagement and Program Services, Lori Aldridge;
and SSLI’s motion for a protective order prohibiting that deposition. Neither
motion is particularly well taken; but in order to assist the parties, the
Court has fashioned an order that requires Aldridge to appear for her deposition,
but without requiring her to produce any documents.
II. LEGAL
STANDARD
Code Civ. Proc. §2025.420 provides that a deponent may
move for a protective order and that the court may, for good cause shown, “make
any order that justice requires to protect any party, deponent, or other
natural person or organization from unwarranted annoyance, embarrassment, or
oppression, or undue burden and expense.” The protective order may direct that
the deposition not be taken at all.
Code Civ. Proc. §2025.450(a) provides that if, after
service of a deposition notice, a party to the action or employee of a party,
without having served a valid objection under Section 2025.410, fails to appear
for examination, the party giving the notice may move for an order compelling
the deponent's attendance and testimony.
The California Court of Appeal for the Second District
observed:
“The state has two
substantial interests in regulating pretrial discovery. The first is to
facilitate the search for truth and promote justice. The second is to protect
the legitimate privacy interests of the litigants and third parties. (Citation.)
‘The interest in truth and justice is promoted by allowing liberal discovery of
information in the possession of the opposing party. [Citation.] The interest
in privacy is promoted by restricting the procurement or dissemination of
information from the opposing party upon a showing of ‘good cause.’
[Citations.]’ (Ibid.) The trial court is in the best position to weigh
fairly the competing needs and interests of parties affected by discovery. (Ibid.)”
Stadish v. Superior Court (1999) 71 Cal.App.4th 1130, 1145.
III. DISCUSSION
A. Chronology of Relevant Events
February 23, 2023 – Bereny’s counsel sent a letter to SSMLI’s counsel requesting
deposition dates for several employees, including Aldridge. The letter requests
that dates be provided by March 8, 2023. Sobati Declaration, ¶2 and Exhibit A.
SSMLI did not respond to this letter.
March 24, 2023 –Bereny served a notice of deposition for Aldridge,
setting the deposition for April 11, 2023. Id. at ¶3 and Exhibit B.
March 31, 2023 – Bereny’s counsel sent a letter stating it would be
willing to coordinate on alternate dates for the deposition. Id. at ¶4
and Exhibit C.
April 5, 2023 - SSMLI served objections to the deposition notice. Id.
at ¶5 and Exhibit D.
April 6, 2023 – Bereny’s counsel wrote in response to the
objections and urged SSMLI to provide an alternate date for Aldridge’s
deposition prior to April 12, 2023. SSMLI failed to do so; and Aldridge did not
appear on April 11, 2023. Id. at ¶6.
On April 12, 2023, SSMLI provided dates for all other
deponents but indicated that it would not be producing Aldridge for deposition.
B. Analysis
The crux of the dispute here is that SSMLI believes its
employee, Ms. Aldridge, does not have any relevant testimony to provide. Bereny
would like to take her deposition to find out if that is the case. The meet and
confer letters from April 12, 2023, contain the following exchange:
SSMLI -
“With respect to the deposition of Lori Aldridge, we
request that you withdraw her deposition notice. Ms. Aldridge is not involved
in the day-to-day operation of the community and provides support in the form
of periodic training related to dementia and memory care and is available for
consultation on an as requested basis. She does not have any supervisory role
over the community. She does not know Ms. Bereny, did not locate any emails
about Ms. Bereny, and does not recall consulting with the community about Ms.
Bereny. Considering the time period of this matter coinciding with the height
of COVID-19, Ms. Aldridge did not visit the community in person during Ms.
Bereny’s residency period. In short, Ms. Aldridge does not have knowledge about
this matter and her deposition is going to be a waste of time for everyone. Additionally,
while Ms. Aldridge is a current employee, she lives out of state.”
Bereny –
“Regarding Ms. Aldridge, we still want her deposition. If
it is the case as you claim, that she doesn’t have information we need, then
the deposition shouldn’t take very long. Please let me know by today whether
Defendants are going to produce her for deposition.”
Exhibit F to Sobati
Declaration.
SSMLI’s motion for protective order is based on the
assertion that Aldridge has “no relevant information to provide,” and that “she
should not have to disrupt her life for a baseless and useless deposition.”
Memorandum of Points and Authorities at 15:13-15. But the concept of relevance in
the context of pretrial discovery is quite broad. It need only be information
that leads to the discovery of admissible evidence. The fact that Ms. Aldridge conducts training on dementia, and not fall
risks specifically, does not necessarily mean that she will have no
relevant information to provide. To the extent SSMLI’s motion for protective
order is grounded in a relevancy objection, the motion is not well-taken. SSMLI
has also not made a sufficient evidentiary showing to support a finding that
the discovery sought is oppressive.
As for Bereny’s motion, technically speaking it is
deficient because Aldridge did not fail to appear for her deposition without
objecting. Additionally, the declaration accompanying the motion to compel does
not indicate that Bereny’s counsel contacted the deponent to inquire about the
nonappearance, as required by Code Civ. Proc. §2025.450(b)(2). Instead, the
letters demonstrate that the parties were meeting and conferring over
Aldridge’s objections to appear for deposition.
These objections were apparently never resolved.
In short, SSMLI’s motion does not demonstrate good cause
for issuance of a protective order; and Bereny’s motion fails to show
compliance with the statutory requirements for a motion to compel. Rather than
deny both motions and leave the parties with no resolution to this dispute, the
Court in an effort to balance the parties’ interests rules as follows: Aldridge is ordered to appear for her
deposition within ten days of today’s date; but she is not required to produce
any of the 50 categories of documents listed in the notice of deposition. The
deposition may be conducted remotely. If,
after questioning her, Bereny’s counsel concludes that Aldridge has relevant
documents, Bereny may bring a follow-up motion to compel (in the event meet and
confer discussions cannot resolve the issue).
IV. CONCLUSION
Bereny’s motion to compel the deposition of Lori Aldredge
is granted in part; and SSMLI’s motion for a protective order is granted in
part as set forth above.
Bereny’s request for monetary sanctions against SSMLI is
denied. See Code Civ. Proc.
§2025.420(h).
Counsel for Plaintiff Bereny is ordered to give notice of
this ruling.
Dated: _______________________________
MARGARET L. OLDENDORF
JUDGE
OF THE SUPERIOR COURT