Judge: Michael E. Whitaker, Case: 21STCV11222, Date: 2022-10-13 Tentative Ruling

Case Number: 21STCV11222    Hearing Date: October 13, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

            Plaintiff Felipe Lanuza (“Plaintiff”) moves to compel Defendant Southern California Healthcare Systems, Inc. (“Defendant”) to produce Gil Gonzalez and Michael Puttkammer, M.D.  to answer deposition questions.  Defendant opposes the motion and Plaintiff replies to the opposition. 

Procedural Requirements

            Informal  Discovery Conference

            Per the Eighth Amended Standing Order for Procedures in the Personal Injury Hub Courts Effective October 10, 2022, ¶ 9E, “PI Hub Courts will not hear Motions to Compel Further Discovery Responses to Discovery until the parties have engaged in an Informal Discovery Conference (IDC) . . . The purpose of the IDC is to assist the parties to resolve and/or narrow the scope of discovery disputes.”   

            Here, the parties complied with the Standing Order in scheduling and attending an IDC on May 26, 2022.   

            Timeliness of Motion

            A motion to compel further answers to deposition questions must be made within 60 days after the completion of the record of the deposition.  (Code Civ. Proc., § 2025.480, subd. (b).)  

            Here, Plaintiff filed the motion June 8, 2022.  Defendant has not objected to the timeliness of the motion. 

            Meet and Confer

            A motion to compel further answers to deposition questions “[s]hall be accompanied by a meet and confer declaration under Code of Civil Procedure section 2016.040.”  (Code Civ. Proc., § 2025.480, subd. (b).)  “A meet and confer declaration must state facts showing a reasonable and good-faith attempt at an informal resolution of each issue presented by the motion.”  (Code Civ. Proc., § 2016.040.) 

            “The Discovery Act requires that, prior to the initiation of a motion to compel, the moving party declare that he or she has made a serious attempt to obtain an informal resolution of each issue. This rule is designed to encourage the parties to work out their differences informally so as to avoid the necessity of a formal order.  . . .  This, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes.”  (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1434-1435 [cleaned  up].)  To comply, “A reasonable and good-faith attempt at informal resolution entails something more than bickering with [opposing counsel].  Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.”  (Id. at p. 1439; see also Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294 [to satisfy the attempt at informal resolution required in section 2016.040 opposing parties must do more than try to persuade each other of their errors].)  In short, the Discovery Act “requires that there be a serious effort at negotiation and informal resolution.”  (Townsend v. Superior Court, supra, 61 Cal.App.4th at p. 1438.)

            To that end, trial courts are entrusted with discretion and judgment to determine the necessary effort required to satisfy the requirement of an informal resolution. (Obregon v. Superior Court (1998) Cal.App.4th 424, 433.)  In determining if parties have satisfied section 2016.040, judges may consider “the history of the litigation, the nature of the interaction between counsel, the nature of the issues, the type and scope of discovery requested, the prospects for success and other similar factors can be relevant.” (Id. at pp. 431-432 [holding that the trial court was correct in determining that sending a letter with oppositions was an insufficient attempt at an informal resolution].)  In sum, meet and confer efforts should go beyond counsel merely sending letters to each other stating each party’s respective positions.

            Here, as set forth in the Declaration of Nicholas H. Van Parys (“Van Parys”), Counsel for Plaintiff, Van Parys states verbatim as follows:

• I am an attorney licensed to practice law in the State of California and am the attorney of record for plaintiff and make this declaration in support of plaintiff’s motion to compel answers to deposition questions. The following facts are within my personal knowledge and if called to testify I could and would competently testify thereto.

• This is an action for medical negligence. Felipe Lanuza contends in part that the nurses employed by defendant Southern California Hospital at Culver City (1) failed to recognize an MRI was ordered after hours, and (2) failed to take action to expedite the MRI of Felipe. As a result, there was a delay in surgery, which in turn caused significant spinal damage. Michael Puttkamer (sic) Deposition – Director of Radiology Gil Gonzalez Deposition – Director of Emergency Department

• In deposition, I sought to explore the state of Mr. Puttkamer’s (sic) knowledge, training and skill concerning the department of radiology, at the time that he was caring for Felipe Lanuza. Likewise, I sought to explore Mr. Gonzalez’ state of mind, knowledge, training and skill concerning the department of emergency and the delay in obtaining an MRI, at the time he too was caring for Felipe Lanuza.

• Defendant’s counsel instructed each witness to refuse to answer several questions about their knowledge and skill -- at the time they were caring for Felipe --- concerning their understanding, if any, of the delay in obtaining an MRI at the time of his care. Specifically, if they would be concerned with a 6-hour delay in obtaining an MRI and why, and the importance of fast imaging in the emergency context. Those questions are identified in the Separate Statement of Discovery in Dispute, filed concurrently with this motion.

• Attached to this declaration as Exhibit A are true and correct copies of the relevant pages of the deposition of Mr. Gonzales.

• Attached to this declaration as Exhibit B are true and correct copies of the relevant pages of the deposition of Mr. Puttkamer, along with relevant Exhibits of that deposition, including print out of Defendant’s website referenced in Mr. Puttkamer’s (sic) deposition.

            Defendant contends that Plaintiff failed to meet and confer before the filing of the motion.  The Court agrees as Van Parys’s declaration is devoid of any information regarding Plaintiff’s attempt(s) to resolve the subject discovery issues informally. 

CONCLUSION AND ORDERS

Therefore, the Court denies Plaintiff’s motion to compel further answers to deposition questions based upon Plaintiff’s failure to comply with Code of Civil Procedure section 2025.480, subdivision (b).    

            Defendant shall provide notice of the Court’s ruling and file a proof of service regarding the same.