Judge Mark A. Young, Case Number: 22SMCV01320, Date: 2023-11-09 Tentative Ruling

Judge: Mark A. Young, Case: 22SMCV01320, Date: 2023-11-09 Tentative Ruling

Case Number: 22SMCV01320 Hearing Date: November 9, 2023 Dept: M

CASE NAME: Wilborn, v. Compoginis, et al.

CASE NO.: 22SMCV01320

MOTION: Motion to Compel Answers at Deposition

HEARING DATE: 11/9/2023

Legal Standard

Service of a proper deposition notice obligates a party or “party-affiliated” witness (officer, director, managing agent or employee of party) to attend and testify, as well as produce any document, electronically stored information, or tangible thing for inspection and copying. (CCP § 2025.280(a).) If, after service of a deposition notice, a party deponent fails to appear, testify, or produce documents or tangible things for inspection without having served a valid objection under CCP § 2025.410, the deposing party may move for an order compelling attendance, testimony, and production. (CCP § 2025.450(a).) The motion must be accompanied by a meet and confer declaration. (CCP § 2025.450(b).)

Deponents are to answer deposition questions unless they pertain to privileged matters, or improper matters revealing a motive to harass or annoy, and “witnesses are expected to endure an occasional irrelevant question without disrupting the deposition process.” (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1015.) An objecting deponent bears the burden of justifying their refusal to answer on a motion to compel answers. (Weil & Brown (2023) Cal. Prac. Guide Civ. Pro. Before Trial Ch. 8E-15.)

The statute requires a “certified copy” of “any parts” of the transcript lodged. (CCP § 2025.480(h).) The moving party must “lodge” with the court, at least 5 days before the hearing on the motion, a certified copy of whatever parts of the transcript are relevant to the motion.

The motion to compel must be “made no later than 60 days after the completion of the record of the deposition.” (CCP § 2025.480(b).) This time limit also applies to motions based on a deposition subpoena for production of documents or a business records subpoena. The 60-day time limit runs from the date objections are served because the deposition record is then complete. (Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1192.)

Analysis

Plaintiff Cynthia Wilborn moves to compel Defendant John M. Compoginis, M.D. to answer certain deposition questions and all questions reasonably related to the cited questions.

At Defendant’s deposition, Plaintiff’s counsel asked Defendant questions concerning his residence, potential witnesses, and his medical knowledge and training prior to and at the time Defendant was treating Plaintiff. Defendant’s counsel objected and instructed Defendant not to answer. The Court will address each question in turn.

Question nos. 1 and 2 - What is your residential address & Who do you live with?

After asking for Defendant’s name, Plaintiff’s second question for Defendant was “And can you state your residential address?” (Compogonis Depo. at 8:6.) Defense counsel objected and instructed not to answer, stating that Defendant will be “made available by counsel at all times.” (Id. at 8:7-9.)

Immediately following this exchange, Plaintiff’s counsel asks “Q Does anyone, other than yourself, reside with you at your home address. A Yes. Q And who else resides with you? A My fiancé.” (Id. at 8:13-20.) Defense counsel then objected on the grounds that this line of questioning would not lead to the discovery of admissible evidence and instructed his client not to answer any further questions on the topic. (Id. at 9.)

Defendant argues that Plaintiff has made no showing whatsoever that her need for Dr. Compogonis’s residential address outweighs his right to privacy. However, Plaintiff has no such burden on this motion. Defendant has the burden to justify his relevancy and privacy objections. More specifically, Defendant must show that this question pertains to a privileged matter or that it was an improper question intended to harass or annoy and that goes beyond what a witness may be reasonably expected to endure in the deposition process. (See Stewart, supra, 87 Cal.App.4th 1006, 1015.) Defendant’s relevancy and privacy objections at deposition cannot justify a refusal to respond. (Id., at 1014.)

While both questions only have limited direct relevancy, the questions still appear to be reasonably calculated to lead to the discovery of admissible evidence under California’s liberal discovery policies. Plaintiff’s questions seek preliminary information concerning Defendant himself and potential witnesses relevant to this action. Plaintiff has a right to question Defendant about his residence and other potential witnesses which may exist. Even if the answers would ultimately be irrelevant, the questions do not appear to be calculated to harass or annoy. Deponents should expect to be asked for personal information. Thus, these questions asking preliminary personal information would be within the boundary of what witnesses are expected to endure at deposition. Further, Defendant provides no argument or evidence that could show that these basic questions were harassing.

Notably, as to the second set of questions, Defendant already responded to all questions posed. However, Defense counsel cut off all further questions from being asked. This refusal to answer any further questions on this topic unreasonably precluded Plaintiff from inquiring further on this line of questioning. Plaintiff will be allowed an opportunity to ask any follow up questions, if any.

Therefore, the questions should have been answered despite any privacy or relevancy objection. Accordingly, the Court will grant the motion as to questions nos. 1-2.

Question no. 3 – Standard of Care

Plaintiff’s counsel asked Defendant at deposition the following questions regarding his understanding of the standard of care: “Q Doctor, in your experience as a specialist in plastic surgery, what would you say the standard of care is for plastic surgeons when dealing with a postoperative patient that is evidencing symptoms of infection?” (Compogonis Depo. at 53:15-19.) Defendant objected and instructed not to answer on the grounds that he was not yet a designated expert and did not have to answer questions related to the standard of care. Plaintiff’s counsel then asked: “Q Doctor, are you aware of what the standard of care is for plastic surgeons?” (Id. at 54:8-9.) Plaintiff’s counsel also reiterated his initial question as follows: “Q The question was, Doctor, are you aware of what the standard of care is for plastic surgeons in dealing with postoperative patients that are evidencing symptoms of infection?” Defense counsel lodged objections on the same grounds, that these questions improperly call for after-the-fact expert testimony.

In the medical malpractice context, a defendant-physician may provide expert testimony which establishes Plaintiff's prima facie case. (County of Los Angeles v. Superior Court (1990) 224 Cal.App.3d 1446, 1455.) This is to be distinguished from the present expert opinions of a party physician concerning the care given. Such testimony is “irrelevant unless the physician is designated as an expert witness [under the procedure provided by CCP § 2034.]” (Id.) For example:

“[i]n Scarano v. Schnoor (1958) 158 Cal.App.2d 612, a medical malpractice case involving eye surgery, the court held that the trial court properly sustained objections to questions asked of a defendant physician as to whether he would perform the same surgery on plaintiff's other eye on the basis of what he knew immediately after the operation. ‘The circumstances to be considered in deciding defendant's negligence “are those which the evidence shows may reasonably be supposed to have been known to such person and to have influenced his mind and actions at the time.” Negligence is not to be determined by hindsight nor by what a party subsequently learns.’ ”

(County of LA, supra, 224 Cal.App.3d at 1455, internal citations omitted.)

Plaintiff argues that these questions are permissible because they go to Defendant’s training, knowledge and how that knowledge affected the treatment of Plaintiff. Indeed, Defendant’s knowledge and how that knowledge informed his treatment of Plaintiff would be an appropriate topic for deposition. Questions regarding Defendant’s medical training and knowledge at the time of the procedure would certainly be calculated to lead to the discovery of relevant information. What is not allowed, however, are questions that call for after-the-fact expert opinions. As phrased, the above questions do not pertain to Defendant’s knowledge at the time of the procedure or any training he received before the procedure. The questions do not directly relate to Defendant’s specific treatment of Plaintiff. Instead, the questions request Defendant’s current, after-the-fact knowledge of the standard of care, and his expert opinion on a hypothetical scenario involving postoperative care. As noted, Defendant has not designated himself as an expert, and is not yet required to designate experts. Therefore, defense counsel appropriately objected to the questions regarding his current awareness of the standard of care of plastic surgeons and his general opinions on the standard of care.

Conclusion

Accordingly, the motion is GRANTED as to question nos. 1-2, and DENIED as to question no. 3. The parties have not noticed any sanctions. While Plaintiff requests sanctions at the end of her memorandum, Plaintiff did not notice, state any amount of sanctions, or provide any evidence showing her reasonably incurred attorneys’ fees. Thus, the Court would not grant any sanctions.