Judge: Richard S. Whitney, Case: 37-2021-00047031-CU-PO-CTL, Date: 2023-09-21 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 20, 2023

09/21/2023  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  PI/PD/WD - Other Discovery Hearing 37-2021-00047031-CU-PO-CTL LYNCH VS 24 HOUR ELEVATOR INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: Plaintiff's Motion To Compel Attendance Of PMK Witness For Deposition From Defendant Sharp Healthcare, Production of Documents Requested by Deposition Notice, And For Monetary Sanctions is GRANTED, in part, and DENIED, in part.

Defendant SHARP HEALTHCARE ('Defendant') objects to Plaintiff MARY LYNCH's ('Plaintiff') deposition notice for Defendant's person most knowledgeable ('PMK'). Plaintiff seeks to compel Defendant to produce for deposition a PMK(s) about Plaintiff's day-to-day employment and supervision, as well as other topics. Plaintiff also seeks an order compelling Defendant to produce documents relevant to the identity of Plaintiff's employer at the time of her injuries.

Defendant asserts its motion for summary judgment does not raise the issue of employer control or whether Plaintiff was an employee, but merely who was Plaintiff's employer. Defendant essentially asserts that Plaintiff should accept Defendant's assertion that 'Specialty Medical Groups,' which appears on Plaintiff's paystubs and W-2, is merely a department within Defendant such that Plaintiff was an employee of Defendant. Defendant fails to provide authority that Plaintiff must accept Defendant's assertion rather than attempt to dispute it via discovery. The Court agrees Plaintiff may seek information related to Defendant's control over Plaintiff related to her employment as 'the preeminent factor to be considered in determining this factual question of employer-employee relationship is 'the right of control.'' (Gigax v. Ralston Purina Co. (1982) 136 Cal.App.3d 591, 599 [Citation omitted].) Other factors to consider include: (a) whether or not the one performing service is engaged in a distinct occupation or business; (b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (c) the skill required in the particular occupation; (d) whether the principal or workman supplies the instrumentalities, tools, and the place of work for the persons doing the work; (e) the length of time for which the services are to be performed; (f) the method of payment, whether by time or by the job; (g) whether or not the work is a part of the regular business of the principal; (h) whether or not the parties believe they are creating the relationship of employer-employee.

(Id. [Citation omitted, emphasis in original].) The PMK deposition topics at issue relate to control, amount of work dedicated to Defendant, and source of equipment used. These are relevant to the issue of whether Plaintiff was employed by Calendar No.: Event ID:  TENTATIVE RULINGS

2989224  65 CASE NUMBER: CASE TITLE:  LYNCH VS 24 HOUR ELEVATOR INC [IMAGED]  37-2021-00047031-CU-PO-CTL Defendant. Defendant's objections are without merit. The motion is granted as to the PMK deposition topics.

As to the request for production of documents nos. 1, 2, 6, 7, 9, 10, and 11, Defendant asserts Plaintiff did not sufficiently meet and confer. Plaintiff's motion must be companied by a meet and confer declaration that states 'facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.' (Code Civ. Proc., (Code Civ. Proc., §§ 2016.040 and 2031.310(b)(3) [Emphasis added].) '[A]ttempting informal resolution means more than the mere attempt by the discovery proponent 'to persuade the objector of the error of his ways' [Citation]' it 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.'' (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294 [Citations omitted].) The Court agrees Plaintiff has not demonstrated 'a reasonable and good faith attempt at an informal resolution of each issue presented by the motion' because Plaintiff did not address Defendant's objections in the meet and confer efforts. (Sabzerou Decl.

¶ 10, Exhibit K.) Plaintiff did not make efforts to compare views on Defendant's objections. Therefore, the motion is denied as to the request for production of documents nos. 1, 2, 6, 7, 9, 10, and 11.

In sum, the motion is granted as to PMK topics no. 9-11, but denied as to request for production of documents nos. 1, 2, 6, 7, 9, 10, and 11. No sanctions are awarded.

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