Judge: Walter P. Schwarm, Case: 30-2018-01000575, Date: 2022-07-26 Tentative Ruling

Plaintiff’s (Mark Mason) Motion to Compel Person Most Knowledgeable Deposition Directed to Orange County Global Medical Center, Inc. dba Orange County Global Medical Center (Motion), filed on 5-11-22 under ROA No. 646, is GRANTED.

 

Code of Civil Procedure section 2025.450, subdivision (a) states, “If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.”

 

Code of Civil Procedure section 2025.230 provides, “If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.”

 

On 3-14-22, Plaintiff served an “Amended Notice of Taking Videotaped Deposition of Orange County Global Medical Center, Inc. dba Orange County Global Medical Center” (Notice) on Defendant (OCGMC). (Peck Decl., ¶ 2, Exhibit A.) On 3-16-22, Defendant objected to the Notice and refused to appear for the PMK deposition. (Peck Decl., ¶ 3, Exhibit B.)

 

The Notice lists four items under “Subject Matters,” but only Subject Matter Nos. 1 and 3 are at issue in this Motion. (Peck Decl., ¶ 2 and Notice; Motion 2:2-8.)

 

Subject Matter No. 1 states, “All the facts and circumstances of any investigations performed by the HOSPITAL or on its behalf related to Mark Mason’s pressure injuries at the HOSPITAL; For purposes of the Person Most Knowledgeable Deposition, HOSPITAL means, ORANGE COUNTY GLOBAL MEDICAL CENTER, INC. DBA ORANGE COUNTY GLOBAL MEDICAL CENTER.” (Peck Decl., ¶ 2 and Notice (Uppercase in Notice.)

 

Defendant objected to Subject Matter No. 1 on the grounds that “. . . any internal investigation of the hospital is protected by the attorney-client privilege, work product privilege, and potentially Evidence Code § 1157.” (Peck Decl., ¶ 3 and Exhibit B (Underscore in Exhibit B.).)  Defendant’s Opposition to Plaintiff’s Motion to Compel Person Most Knowledgeable Deposition (Opposition), filed on 7-13-22 under ROA No. 678, contends, “Here, as shown by the Declarations of Lee Dawson and the hospital's attorney, Harmon B. Levine, the hospital's investigation of Plaintiff’s claims began only after the hospital was served with Plaintiff’s Complaint. The investigation by the Risk Manager was performed in conjunction with the requests by defense counsel for information regarding Plaintiff’s care, and for information for responses to Plaintiff’s discovery. The Risk Manager was acting as an agent of Defense counsel. Under these circumstances, testimony concerning the hospital's investigation is privileged and is not subject to discovery.” (Opposition; 4:17-23.)

 

Scripps Health v. Superior Court (2003) 109 Cal.App.4th 529, 534 (Scripps), states, “The trial court rejected Scripps's assertion of the attorney-client privilege, essentially finding that the dominant purpose of the occurrence reports was accident prevention. We conclude that the trial court abused its discretion because the undisputed facts show the dominant purpose of the reports was for transmittal to an attorney in the course of the professional attorney-client relationship under circumstances where Scripps expected confidentiality. (§ 952; Holm v. Superior Court (1954) 42 Cal.2d 500, 507, 267 P.2d 1025 (Holm), disapproved on another point in Suezaki v. Superior Court (1962) 58 Cal.2d 166, 176, 23 Cal.Rptr. 368, 373 P.2d 432.)

 

The declaration of Lee Dawson states, “In this case, the hospital had no advance notification of Plaintiffs Complaint. Shortly after Plaintiff's Complaint was served on the hospital, defense counsel was retained. Any incident report for Plaintiff would have been accessed by myself as risk manager and utilized in the defense of this action.” (Dawson Decl., ¶ 4.)  This declaration states that Defendant had no advance notice of the filing of Plaintiff’s Complaint and that any incident report would have been accessed by the Declarant.  This declaration, however, does not affirmatively state that Defendant did not conduct any investigation related to allegations in the Complaint before Plaintiff filed the Complaint.

 

The court notes that Subject Matter No. 1 is not limited to investigations conducted before the filing of Complaint. As to investigations performed after Plaintiff filed the Complaint, Plaintiff is entitled to determine through the deposition what Defendant deems to be privileged.  Therefore, the court GRANTS the Motion as to Subject Matter No. 1, and Defendant can object to any matter it contends is protected by the attorney-client privilege, work product doctrine, or Evidence Code section 1157 during the deposition pertaining to Subject Matter No. 1.

 

Subject Matter No. 3 states, “All the facts and circumstances of any investigations performed by the HOSPITAL or on its behalf related to the allegations set forth in this action prior to this lawsuit being filed.” (Peck Decl., ¶ 2 and Notice (Uppercase in Notice.)

 

Defendant objected to Subject Matter No. 3 on the grounds of “. . . the attorney-client privilege, work product privilege, and potentially Evidence Code § 1157.” (Peck Decl., ¶ 3 and Exhibit B (Underscore in Exhibit B.).)   The Opposition asserts, “. . . with respect to Category No. 3, Defendant previously produced and submitted in support of its Opposition to Plaintiffs Request for Production of Documents, Set One, the Declaration of its former Risk Manager, Lee Dawson, who states that the hospital had no advance notification of Plaintiffs Complaint and that shortly after Plaintiff's Complaint was served, defense counsel was retained. Therefore, there could have been no investigation of the allegations that Plaintiff is making before this action was filed since the hospital had no knowledge about Plaintiff’s allegations until the Complaint was served.” (Opposition; 3:2-8.)

 

As discussed above, the declaration of Lee Dawson does not affirmatively state that Defendant did not conduct any investigation related to allegations in the Complaint before Plaintiff filed the Complaint.

 

Relying on Request for Production (RFP) No. 51, the Opposition states, “. . . Plaintiff has already been advised in verified Court-Ordered Further Responses . . . that ‘There are no Incident Reports relating to Plaintiff, and no Incident Report relating to Plaintiff ever existed.’ ” (Opposition; 4:24-26 (Levine Decl., ¶ 4 and Exhibit A.)  The Notice does not limit Subject Matter No. 3 to incident reports.  The declaration from Lee Dawson and  Defendant’s response to RFP No. 51 do not fully address the testimony requested by Plaintiff from Defendant’s Person Most Knowledgeable (PMK) as to Subject Matter No. 3.  Therefore, the court GRANTS the Motion as to Subject Matter No. 3, and Defendant can object to any matter it contends is protected by the attorney-client privilege, work product doctrine, or Evidence Code section 1157 during the deposition pertaining to Subject Matter No. 3.

 

Based on the above, the court GRANTS Plaintiff’s (Mark Mason) Motion to Compel Person Most Knowledgeable Deposition Directed to Orange County Global Medical Center, Inc. dba Orange County Global Medical Center filed on 5-11-22 under ROA No. 646.  The court ORDERS Defendant to appear for its PMK deposition within 10 days of the date of service of the notice of the court’s order.  The parties are to agree on the date, time, and place for the deposition.

 

Plaintiff is to give notice.