Judge: Ronald F. Frank, Case: 21TRCV00278, Date: 2024-05-03 Tentative Ruling

Case Number: 21TRCV00278    Hearing Date: May 3, 2024    Dept: 8

Tentative Ruling¿ 

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HEARING DATE:                 May 3, 2024¿ 

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CASE NUMBER:                   21TRCV00278

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CASE NAME:                        Diane Stretch, et al. v. Sierra Tuscon, et al.

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MOVING PARTY:                 Defendants, Sierra Tucson and Acadia Healthcare

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RESPONDING PARTY:        Plaintiffs, Diane Stretch, et al. 

TRIAL DATE:                        June 3, 2024 

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MOTION:¿                              (1) Defendants, Sierra Tucson and Acadia Healthcare Motion to Compel Deposition Testimony from Diane Stretch

Tentative Rulings:                  ARGUE.  The Court finds itself at a crossroads as to whether to order the deposition and allow the chips to fall where they may, or whether to conditionally deny the motion on the conditions that (A) Plaintiff Diana Stretch shall not be permitted to testify at trial, and (B) the parties develop a stipulation as to how the finder of fact is to consider her inability to testify in a fashion that will not unfairly prejudice the Defendants.   There is no mental health care declaration attesting to the existence of lucid intervals, memory for events from two years ago as opposed to more current short-term memory, or other evidence from which most judges could fashion a proper order here as to Diana’s competency to sit for a deposition under oath.  But the Court also has respect for witnesses with serious cognitive decline and hopes to work out a resolution that respects her dignity while guaranteeing fairness to the defendants facing a potential jury award that could be tainted by unfair sympathy towards her. 

With the FSC looming 3 weeks away, the Court will be prepared to take argument on the stipulation if the parties have not agreed to those conditions by then.  The Court will entertain oral argument at the hearing on this motion as to what damages Diana Stretch is seeking that are not duplicative of the damages sought by the other plaintiffs.  But evidence that Diana may have been one of the last people to have spoken with Decedent before the incident is reasonably discoverable, whether Plaintiffs’ family members and counsel reasonably believe that her memory cannot be trusted.   

The crux of the issues between the parties is whether Plaintiff, Diane Stretch can provide  testimony at her deposition. In California, a party is incompetent if he or she lacks the capacity to understand the nature or consequences of the proceeding, or is unable to assist counsel in the preparation of the case.  (In re Jessica G. (2001) 93 Cal.App.4th 1180, 1186.)  Section 372 of the Code of Civil Procedure provides that when a person lacking legal capacity to make decisions is a party, “that person shall appear either by a guardian or conservator of the estate or by a guardian ad litem appointed by the court.”¿(Code Civ. Proc., 372, subd. (a)(1).) ¿ Section 373 of the Code of Civil Procedure provides, in relevant part, that when a guardian ad litem is appointed, he or she shall be appointed “if the person lacking legal competence to make decisions¿is a party to an action or proceeding.”  (Code Civ. Proc., 373, subd. (c).) ¿Incompetency may exist independently of any judicial determination thereof.  (Sarracino v. Superior Court (1974) 13 Cal.3d 1, 12, citing Olivera v. Grace (1942) 19 Cal.2d 570, 577.) 

Moving Defendants assert that Diane Stretch is a critical witness because she allegedly spoke with decedent after his discharge and prior to his suicide less than a day later. Further, Moving Defendants also note that Diane Stretch’s claim for economic damages related to the loss of earnings and loss of financial support from decedent necessitates Diane Stretch’s deposition. Moving Defendants contend that they are entitled to take Diane Stretch’s deposition for elaboration and clarification regarding her damages claim, as well as her personal and financial relationship with Decedent.  Moving Defendants have requested that in the alternative, the Court should preclude Diane Stretch from being a witness to the case.

Plaintiffs’ opposition contends that Diane Stretch is incompetent to testify at a deposition or at trial.   The Opposition attaches medical reports regarding Diane Stretch’s physical and mental status. This Court understands that Moving Defendants have objected to this, and while it may be insufficient evidence of certain matters at trial, the Court can rely on an insufficiently authenticated medical records to consider this motion. Exhibit B of the Stephanie Stretch Declaration indicates that the Neuropsychological Assessment Report found that at her August 26, 2022 assessment, she revealed below-expectation performance across aspects of verbal and nonverbal memory, as well as aspects of processing speed, executive functioning, and daily skills testing. This August 26, 2022 assessment diagnosed her with mild cognitive impairment at the time. The Exhibit B’s results and key findings indicate that the neuropsychologist found below-expectation performance across most aspects of nonverbal and verbal memory including: (1) visual attention; (2) an aspect of processing speed; (3) aspects of verbal memory; (4) aspects of nonverbal memory; (5) aspects of executive function; (6) an aspect of daily skills. However, the report also found that Diane Stretch had areas of ability that were within expectation, including: (1) auditory attention; (2) working memory (maintenance, manipulation); (3) most aspects of information processing speed; (4) language (confrontation naming, semantic fluency); (5) an aspect of nonverbal memory (cued recognition); (6)an aspect of verbal memory (learning); (7) visuospatial functioning (reproduction, mental rotation, construction); (8) most aspects of executive functioning (verbal abstract reasoning, letter fluency, motor set-shifting, basic health and safety judgment; and (9) most aspects of daily skills (time, money and calculation, communication.)

            California Evidence Code states that a person “is disqualified to be a witness if he or she is (1) [i]ncapable of expressing himself or herself concerning the matter so as to be understood, either directly or through interpretation by one who can understand him; or (2) [i]ncapable of understanding the duty of a witness to tell the truth.” (Evid. Code, § 701.) The burden of proof is on the party who objects to the proffered witness. (People v. Anderson (2001) 25 Cal.4th 543, 573.) Plaintiff has offered a physician’s note as viewed Exhibit C to the Stephanie Stretch Declaration, which is a letter from Ruth Morin, Ph.D. who is a Clinical Neuropsychologist at Hoag Neurosciences. In her letter, Dr. Morin indicates that: “In light of cognitive test performance below expectation across multiple domains with some declines compared to prior assessment, in combination with reported and observed functional decline, the current neuropsychological profile is considered to be conservative consistent with a Major Neurocognitive Disorder (i.e., dementia). Given the amnestic memory profile, cerebrovascular risk factors (e.g., history of TIA, hypertension, hyperlipidemia, and prediabetes), neuroimaging evidence of mild ischemic changes, and mixed etiology with vascular/mesial temporal dysfunction contribution are likely.”

            Plaintiffs’ evidence does not set forth the doctor’s qualifications to be providing opinion as to this matter (as to the ability to provide deposition testimony, specifically), nor do the notes indicate whether that doctor, who did provide the tests run on Diane Stretch, findings, etc. to make her findings, believes that Diane Stretch’s diagnosis would make her unable to provide deposition testimony. The findings include that Diane Stretch met the expectations of “working memory” amongst numerous other categories. This Court, thus, wonders whether the questions sought to be asked during deposition would be the kind that is of those portions of the test that were within expectation.

Here, because of the relevancy of Diane Stretch’s testimony, this Court notes that the declaration of an expert as to Diane Stretch’s ability to provide deposition testimony would have been more persuasive.  But there is no such competent evidence before the Court, other than her daughter’s lay opinion and specific instances of recent memory foibles. 

            Alternatively, the parties seem to be in agreement that Diane Stretch not be allowed to present testimony at trial. The Court will take oral argument at the hearing as outlined above.