Judge William A. Crowfoot, Case 20STCV19634 2023-04-21 Tentative Ruling

Judge: William A. Crowfoot, Case: 20STCV19634, Date: 2023-04-21 Tentative Ruling

On May 22, 2020, plaintiff Linda Jean Pawlik (“Pawlik”) filed this action against Dedicato Treatment Center, Inc. (“Dedicato”) for negligence, intentional infliction of emotional distress, dependent adult abuse and neglect, breach of fiduciary duty, and rescission of void contract. Plaintiff alleges that she entered Defendant’s alcohol treatment and residential facility on June 29, 2018, and was scheduled to be admitted to the facility pursuant to a contract after undergoing physical and mental assessments. (Compl., ¶¶ 6-10.) Plaintiff alleges she agreed to tender $15,000 for 30 days of treatment at Defendant’s facility and on June 29, 2018, she instructed her attorney, Michael Anderson (“Anderson”), to issue a check to Defendant on her behalf. Plaintiff alleges that on July 2, 2018, Defendant forcibly removed her from their facility without her consent and dropped her off in front of Las Encinas Mental Health Hospital, stating that she was not medically fit for their facility. (Compl., ¶¶ 12-13.) Defendant refused to refund the $15,000 paid and when Plaintiff cancelled the check, Defendant filed a lawsuit against Anderson personally. (Compl., ¶ 14.)

On July 8, 2020, Dedicato filed an action against Anderson and Paul Tapia (“Tapia”) (collectively, “Cross-Defendants”) for fraudulent misrepresentation. On November 20, 2020, Cross-Complainant filed the operative First Amended Cross-Complaint (“FACC”). Cross-Defendants allegedly concocted a scheme to “foist” Pawlik onto Dedicato by misrepresenting Pawlik’s condition in order to secure Dedicato’s agreement to treat her, and then “ran away.” (Ibid.) Cross-Defendants allegedly represented that Pawlik was sober and recently received detoxification treatment at another hospital so no further detoxification services were necessary, and that she had no medical or physical health conditions of which Dedicato needed to be aware. (FACC, ¶ 10.) Dedicato alleges that Cross-Defendants made those representations knowing that Dedicato’s facilities were not available to provide effective and appropriate treatment to Pawlik because she had significant physical conditions and mental health illnesses. (FACC, ¶¶ 8, 12.)

On February 3, 2023, Dedicato filed this motion for an order compelling Pawlik to attend and testify at a deposition within 10 days of the hearing date of this motion and to produce the documents specified in the deposition notice. Dedicato also requests that the Court impose sanctions in the amount of $2,260 against Pawlik and her counsel of record, Anderson. This motion is brought under CCP 2025.010, 2025.450, and 2031.010.

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.)

“If, after service of a deposition notice, a party . . . without having served a valid objection . . . fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving notice may move for an order compelling deponent’s attendance and testimony, and the production . . . of any document . . . described in the deposition notice.” (Code Civ. Proc., § 2025.450, subd. (a).)

Ordinarily, a natural person may only be deposed once, unless the court grants leave on a showing of good cause or the parties may stipulate that a subsequent deposition be taken. (Code Civ. Proc., § 2025.610, subd. (b).) Dedicato admits that Pawlik has already been deposed on February 9, 2021, but argues that a second deposition should be ordered because the parties agreed that another deposition would take place. (MPA, 5:11-22.) Dedicato does not state what subjects would be covered at this second session or argue whether there is “good cause” for a second deposition. The motion is based on the existence of an agreement between the parties.

Pawlik opposes Dedicato’s motion on the grounds that Pawlik has already been deposed for 7 hours on February 9, 2021 and Dedicato lacks good cause for taking a second deposition. (Opp., 3:13-5:22.) Pawlik argues that Dedicato wishes to question her about her divorce and a criminal matter that they were aware of when she was first deposed. (Opp., 8:13-15.) Pawlik also claims that Dedicato failed to meet and confer about scheduling a second deposition before filing this motion and argues that she did not agree to a second deposition. (Opp., 5:23-6:18.)

Both parties submitted copies of the same communications regarding the scheduling of various depositions. The exhibits show that about a year after Pawlik was deposed, a paralegal for Dedicato’s counsel sought to arrange a second deposition on February 2, 2022, and acknowledged that there would need to be an agreement regarding the length and scope of her deposition. (Schick Decl., ¶ 7, Ex. A; Opp., Ex. C.) On February 18, 2022, Dedicato’s attorney, Malcolm Schick, emailed Anderson, to memorialize a telephone discussion in which Anderson would provide dates for himself and co-cross-defendant Joseph Tapia. (Schick Decl., ¶ 18, Ex. B.) In exchange, Mr. Schick would work on obtaining alternate dates for two other witnesses. (Ibid.) Mr. Schick also stated in his email: “Additionally, I will need to depose your client and intend to question her about her criminal conviction and the wrongful death lawsuit.” (Ibid.)

On March 14, 2022, Angela Buendia from Anderson’s office requested potential dates and times for the depositions of Anderson, Mr. Tapia, and Pawlik. (Schick Decl., Ex. C.) Less than an hour later, Mr. Schick stated that he would be happy to provide dates and proposed that the parties stipulate to a continuance of the trial date and hearing on a motion for summary adjudication so that the depositions can be taken and the transcripts can be prepared. (Ibid.) Within ten minutes, Anderson replied, “Go ahead and prepare [sic] stipulation to continue, but also send available depo dates.” (Ibid.)

In a letter dated June 15, 2022, Mr. Schick again asked Anderson to provide dates for his deposition as well as the depositions of Mr. Tapia and Pawlik. (Schick Decl., Ex. D.) Mr. Schick stated that if Anderson did not provide dates by the end of next week, he would set the depositions unilaterally based on his own calendar. (Ibid.) On July 21, 2022, after Mr. Schick did not receive a date for Pawlik’s deposition, Dedicato served Pawlik with a deposition notice scheduling her deposition on August 17, 2022. (Schick Decl., ¶¶ 12-13; Ex. E.)

On August 8, 2022, Mr. Schick and Anderson discussed a further trial continuance over the telephone. (Schick Decl., ¶ 14.) Anderson also asked to continue Pawlik’s deposition and provided a proposed stipulation. (Schick Decl., ¶ 14, Ex. F.) The final stipulation filed with the Court on August 10, 2022 reads, in relevant part:

PAWLIK and the Cross-Defendants need to take several percipient witnesses’ depositions to oppose the MSA, and Defendant Cross-Complainant [Dedicato] has requested to take the party depositions, [sic] PAWLIK, ANDERSON, and TAPIA. All counsel agrees that the depositions requested by both sides will occur before Mediation, so that PAWLIK has an opportunity to obtain transcripts of the depositions to oppose the MSA.

(Schick Decl., Ex. F, ¶ 5 [capitalization in original].) On August 10, 2022, the Court entered an order continuing the final status conference, trial date, and hearing on the motion for summary adjudication.

On November 15, 2022, Dedicato served an amended notice of deposition scheduling Pawlik’s deposition on Monday, December 19, 2022. (Schick Decl., Ex. G.) On December 16, 2022, only three days before the deposition, Anderson requested that the deposition be taken off calendar. (Schick Decl., Ex. H.) On December 21, 2022, Anderson’s assistant confirmed that Pawlik’s deposition would go forward on January 18, 2023. (Schick Decl., Ex. I.) An amended deposition notice was served. (Schick Decl., Ex. J.) On January 13, 2023, Anderson’s office informed Mr. Schick that Pawlik’s deposition would not go forward until Mr. Schick provided dates to Dedicato’s clients. (Schick Decl., Ex. K.) The next day, on January 14, 2023, Mr. Schick responded with dates of availability for two individuals, “Dr. Marshall” and Lilly Marshall, and said he was working on obtaining dates for two additional individuals, Tom Pitt and China Walker, by next week. (Ibid.) Anderson then cancelled Pawlik’s deposition on the grounds that Dedicato did not provide dates for Tom Pitt and China Walker. At no point did Pawlik serve any objections to these three deposition notices even though Pawlik previously served objections to the deposition notice for her first deposition. (Opp., Anderson Decl., Ex. B, 4:14-17.)

These extensive communications belie any argument from Pawlik (or Anderson) that there was no effort to meet and confer. Anderson also fails to provide any sworn testimony or other evidence that he was “reasonably mistaken” that Pawlik had not yet been deposed; this excuse is conspicuously absent from his declaration accompanying Pawlik’s opposition brief. (Opp., 5:25-6:18.) Instead, the evidence only confirms that the parties agreed for Pawlik to attend a second session of her deposition.

Accordingly, Dedicato’s motion is granted in part. Pawlik is ordered to appear for a second session of her deposition. Dedicato’s motion regarding the production of documents is DENIED because the motion failed to set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. (Code Civ. Proc., § 2025.450, subd. (b)(2).)

Dedicato’s motion to compel the second deposition of Pawlik is GRANTED and Pawlik is ordered to appear for a second session of her deposition within 10 days of the date of this Order. The deposition is limited to 4 hours and will only address the subjects of Pawlik’s criminal conviction and her wrongful death lawsuit.

Dedicato’s request for monetary sanctions is GRANTED and imposed against Pawlik and counsel of record, jointly and severally, in the reduced amount of $1,460, consisting of 7 hours at Dedicato’s counsel’s hourly rate of $200 and a $60 filing fee.

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

William A. Crowfoot

Judge of the Superior Court