Preview
Electronically FILED by Superior Court of California, County of Los Angeles on 01/05/2021 02:28 PM Sherri R. Carter, Executive Officer/Clerk of Court, by K. Hung,Deputy Clerk
1 MORANLAW
Michael F. Moran SB# 121665
2 Lisa Trinh Flint SB# 243468
5 Hutton Centre Drive, Suite 1050
3 Santa Ana, CA 92707
Telephone: (714) 549-0333
4 Facsimile: (714) 549-0444
5 Attorneys for Plaintiffs, JEFFREY MOR, in and through his Successor-in-Interest,
Jeffrey S. Reisbeck, and MARIE MOR, in and through her Guardian Ad Litem Michele
6 Mor
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8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF LOS ANGELES [CENTRAL]
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11 JEFFREY MOR, in and through his Successor-) CASE NO.: 20STCV12538
in-Interest, Jeffrey S. Reisbeck, and MARIE ) [Assigned for all purposes to the Hon.
12 MOR, an individual, ) Michelle Williams Court Dept. 74]
13 Plaintiffs, ~ NOTICE OF MOTION AND MOTION
TO QUASH DEFENDANTS'
)
14 vs. ~ DEPOSITION SUBPOENA FOR
PERSONAL APPEARANCE AND
15 MONTROSE SPRINGS SKILLED NURSING) AMENDED NOTICE OF TAKING
& WELLNESS CENTER; VERDUGO )
16 VALLEY SKILLED NURSING & ) DEPOSITION OF NON-RETAINED
WELLNESS CENTRE, LLC dba VERDUGO ) EXPERT TERRI HANSEN, RN;
17 VALLEY SKILLED NURSING & ) REQUEST FOR MONETARY
WELLNESSCENTRE;BRIUS ) SANCTIONS IN THE AMOUNT OF
18 MANAGEMENT CO., INC.; ROCKPORT ) $2,185.00; DECLARATION OF LISA
ADMINISTRATIVE SERVICES, LLC; )
19 SHLOMO RECHNITZ; and DOES 1 through ) TRINH FLINT, ESQ.
60, inclusive. )
20 Defendants. ~ Date: June 1, 2021
Time: 8:30 a.m.
l
21 Dept.: 74
22 Reservation No.: 432190927103
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l Complaint filed:
Trial Date:
March 30, 2020
January 25, 2021
26 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
27 PLEASE TAKE NOTICE that on June 1, 2021 at 8:30 a.m., or as soon thereafter as
28 this matter may be hearing in Department "74" of the above captioned court located at 111 N.
1
NOTICE OF MOTION AND MOTION TO QUASH DEFENDANTS' DEPOSITION SUBPOENA FOR
PERSONAL APPEARANCE AND AMENDED NOTICE OF TAKING DEPOSITION OF NON-
RETAINED EXPERT TERRI HANSEN, RN; REQUEST FOR MONETARY SANCTIONS IN THE
AMOUNT OF $2,185.00; DECLARATION OF LISA TRINH FLINT, ESQ.
1 Hill Street, Los Angeles, CA 90012, the Plaintiffs, JEFFREY MOR, in and through his
2 Successor-in-Interest, Jeffrey S. Reisbeck, and MARIE MOR, an individual, will move the
3 Court for an order to:
4 1. Quash Defendants', VERDUGO VALLEY SIULLED NURSING & WELLNESS
5 CENTRE, LLC dba MONTROSE SPRINGS SKILLED NURSING &
6 WELLNESS CENTRE, BRIUS MANAGEMENT CO., INC., ROCKPORT
7 ADMINISTRATIVE SERVICES, LLC, and SHLOMO RECHNITZ's Deposition
8 Subpoena for Personal Appearance on the grounds that Defendants' do not have
9 the authority to subpoena the deposition of their own non-retained expert.
10 2. Quash Defendants', VERDUGO VALLEY SKILLED NURSING & WELLNESS
11 CENTRE, LLC dba MONTROSE SPRINGS SKILLED NURSING &
12 WELLNESS CENTRE, BRIUS MANAGEMENT CO., INC., ROCKPORT
13 ADMINISTRATIVE SERVICES, LLC, and SHLOMO RECHNITZ's Amended
14 Notice of Taking Deposition of Non-Retained Expert TeITi Hansen, RN on the
15 grounds that the deposition notice is untimely given that the deposition date and
16 time fall after the discovery cutoff date.
17 Defendants' subpoena and notice of deposition of non-retained expert TeITi Hansen,
18 RN are untimely and made without legal authority. Therefore, Defendants' deposition
19 subpoena and notice of taking of deposition must be quashed.
20 This Motion to Quash is brought pursuant to California Code of Civil Procedure §§
21 1987.l(a) and 2024.020 and will be based upon this Notice, the attached Memorandum of
22 Points and Authorities, the attached Declaration of Lisa Trinh Flint, Esq., the supporting
23 documents and exhibits, together with such other and further documentaiy and/or oral
24 evidence as may be presented at the time of the hearing.
25 In addition, the moving party Plaintiffs will request the Court for an order that
26 Defendants pay monetary sanctions to the moving party pursuant to California Code of Civil
27 Procedure § 1987.2 and California Code of Civil Procedure § 2025 .410(d) in the sum of
28 $2,185.00 for the reasonable expenses and attorney's fees incu1Ted by the moving party in
11
NOTICE OF MOTION AND MOTION TO QUASH DEFENDANTS' DEPOSITION SUBPOENA FOR
PERSONAL APPEARANCE AND AMENDED NOTICE OF TAKING DEPOSITION OF NON-
RETAINED EXPERT TERRI HANSEN, RN; REQUEST FOR MONETARY SANCTIONS IN THE
AMOUNT OF $2,185.00; DECLARATION OF LISA TRINH FLINT, ESQ.
1 connection with this subject Motion to Quash on the grounds that Defendants have provided
2 no legal or justifiable grounds to subpoena the deposition of or notice the taking of the
3 deposition of their non-retained expert, TeITi Hansen, RN beyond the general discovery cutoff
4 date.
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6 DATED: January 5, 2021 MORANLAW
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8
Lisa Trinh Flint, Esq.
9 Attorneys for Plaintiffs, JEFFREY MOR, in
and through his Successor-in-Interest,
10 Jeffrey S. Reisbeck, and MARIE MOR, in
and through her Guardian Ad Litem Michele
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Mor
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NOTICE OF MOTION AND MOTION TO QUASH DEFENDANTS' DEPOSITION SUBPOENA FOR
PERSONAL APPEARANCE AND AMENDED NOTICE OF TAKING DEPOSITION OF NON-
RETAINED EXPERT TERRI HANSEN, RN; REQUEST FOR MONETARY SANCTIONS IN THE
AMOUNT OF $2,185.00; DECLARATION OF LISA TRINH FLINT, ESQ.
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 1. INTRODUCTION.
3 Plaintiff, Jeffrey Mor, along with his mother, Marie Mor ("Marie") [collectively,
4 "Plaintiffs"], brought an action against Defendants, MONTROSE SPRINGS SKILLED
5 NURSING & WELLNESS CENTER, VERDUGO VALLEY SKILLED NURSING &
6 WELLNESS CENTRE, LLC dba VERDUGO VALLEY SKILLED NURSING &
7 WELLNESS CENTRE, BRIUS MANAGEMENT CO., INC., ROCKPORT
8 ADMINISTRATIVE SERVICES, LLC, and SHLOMO RECHNITZ [collectively,
9 "Defendants"] for elder abuse, negligence, willful misconduct, violation of California Health
10 and Safety Code §1430(b), and wrongful death, in connection with Jeffrey Mar's ("Mr. Mor")
11 admission at Defendants' skilled nursing facility.
12 While under the care of Defendants, Mr. Mor, who was an elderly, contracted a
13 clostridium difficile ("C. cliff') infection, and exhibited signs of changed condition to which
14 Defendants failed to report to his physician and family in a timely manner. Hence, there was
15 a delay in Mar's diagnosis of the infection, and there was a delay in his care and treatment of
16 the infection by Defendants which caused him to suffer prolonged C. cliff infection beyond the
17 point of recove1y. In addition, Defendants continued to administer blood pressure medicine to
18 Mor against his physician's orders, which caused him to have uncontrollable blood pressure
19 and weakness. As a result, Plaintiff died suddenly without warning under the care of
20 Defendants in their facility.
21 Trial in this matter was initially set for November 30, 2020 making the general
22 discovery cut-off date on November 2, 2020. (Dec. Flint ,r 3). On November 16, 2020,
23 Plaintiffs counsel became engaged in trial on another matter. (Dec. Flint ,r 6). As a result, the
24 trial was continued to January 25, 2021. (Dec. Flint ,r 6). The Court did not re9pen general
25 discovery. (Dec. Flint ,r 6).
26 On December 22, 2020, Defendants issued a Deposition Subpoena for Personal
27 Appearance to Terri Hansen, RN and served on Plaintiffs their Amended Notice of Taking
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NOTICE OF MOTION AND MOTION TO QUASH DEFENDANTS' DEPOSITION SUBPOENA FOR
PERSONAL APPEARANCE AND AMENDED NOTICE OF TAKING DEPOSITION OF NON-
RETAINED EXPERT TERRI HANSEN, RN; REQUEST FOR MONETARY SANCTIONS IN THE
AMOUNT OF $3,885.00.
1 Deposition ofNon-Retained Expert Teni Hansen, RN for January 6, 2021. Ms. Hansen was
2 never designated on Plaintiff's expert designation.
3 Plaintiffs now file this Motion to Quash Defendants' Deposition Subpoena for
4 Personal Appearance and Amended Notice of Taking Deposition of Non-Retained Expert
5 TeITi Hansen, RN on the grounds Defendants' do not have the authority to subpoena their
6 own non-retained and that the noticed date and time for deposition is untimely since it is set to
7 occur after the discovery cutoff date.
8 2. PROCEDURAL HISTORY.
9 • On May 1, 2019, Plaintiffs filed their Complaint for Elder Abuse, Negligence,
10 Violation of California Health and Safety Code § l 430(b), Willful Misconduct, and
11 Wrongful Death against Defendants. (Declaration of Lisa Trinh Flint ("Dec. Flint") ,r
12 2).
13 • Pursuant to the Court's order granting Plaintiffs' Motion for Tdal Preference, tdal in
14 this matter was initially set for November 30, 2020 making the general discovery cut-
15 off date on November 2, 2020. (Dec. Flint ,r 3).
16 • On October 13, 2020, Defendants served their Disclosure of Expert Witness
17 Information, designating TeITi Hansen, RN as a non-retained expert. (Dec. Flint ,r 4;
18 See Exhibit "1").
19 • On November 6, 2020, Defendants served their Notice of Taking the Deposition of
20 Non-Retained Expert Terri Hansen, RN to take place on November 16, 2020.
21 Subsequently, the deposition of TeITi Hansen, RN scheduled for November 16, 2020
22 was taken off calendar. (Dec. Flint ,r 5).
23 • On November 16, 2020, Plaintiff's counsel became engaged in trial on another matter.
24 (Dec. Flint ,r 6). As a result, the trial was continued to January 25, 2021. (Dec. Flint ,r
25 6). The Court did not reopen general discovery. (Dec. Flint ,r 6).
26 • On December 22, 2020, Defendants served their Deposition Subpoena for Personal
27 Appearance and their Amended Notice of Talcing the Deposition of Non-Retained
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NOTICE OF MOTION AND MOTION TO QUASH DEFENDANTS' DEPOSITION SUBPOENA FOR
PERSONAL APPEARANCE AND AMENDED NOTICE OF TAKING DEPOSITION OF NON-
RETAINED EXPERT TERRI HANSEN, RN; REQUEST FOR MONETARY SANCTIONS IN THE
AMOUNT OF $3,885.00.
1 Expe1i Terri Hansen, RN to take place on Januaiy 6, 2021. (Dec. Flint ,r 7; See
2 Exhibit "2").
3 • On December 24, 2020, Plaintiffs' counsel sent cmrespondence to Defendants'
4 counsel in an attempt to meet and confer over Defendants' Amended Notice of Taking
5 the Deposition of Non-Retained Expe1i Terri Hansen, RN pursuant to California Code
6 of Civil Procedure§ 2016.040. Plaintiffs' counsel informed Defendants' counsel that
7 they were not authorized to notice the deposition of their own non-retained expert and
8 asked that Defendants withdraw the Deposition Subpoena and Notice of Deposition or
9 Plaintiffs would file a motion to quash. (Dec. Flint ,r 8; See Exhibit "3").
10 • On December 28, 2020, Defendants' counsel sent an email co1Tespondence to
11 Plaintiffs' counsel informing Plaintiffs that because Defendants had noticed the
12 deposition of TeITi Hansen, RN on November 16, 2020 and that the Court continued
13 the trial date, the deposition of Te1Ti Hansen, RN should go forward. (Dec. Flint ,r 9;
14 See Exhibit "4").
15 3. PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTION
16 1987.1, THIS COURT IS AUTHORIZED TO MAKE AN ORDER QUASHING
17 THE DEPOSITION SUBPOENA AND AMENDED NOTICE OF TAKING THE
18 DEPOSTION OF TERRI HANSEN, RN.
19 California Code of Civil Procedure Section 1987.1 states:
20 "If a subpoena requires the attendance of a witness or the production of books,
documents, electronically stored information, or other things before a comi, or
21 at the trial of an issue therein, or at the taking of a deposition, the court, upon
22 motion reasonably made by any person described in subdivision (b ),or
upon the court's own motion after giving counsel notice and an
23 opportunity to be heard, may make an order quashing the subpoena
entirely, modifying it, or directing compliance with it upon those terms or
24 conditions as the court shall declare, including protective orders. In
25 addition, the comi may make any other order as may be appropriate to protect
the person from unreasonable or oppressive demands, including unreasonable
26 violations of the right of privacy of the person." (Emphasis Added; Cal. Code
Civ. Proc.§ 1987.1).
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NOTICE OF MOTION AND MOTION TO QUASH DEFENDANTS' DEPOSITION SUBPOENA FOR
PERSONAL APPEARANCE AND AMENDED NOTICE OF TAKING DEPOSITION OF NON-
RETAINED EXPERT TERRI HANSEN, RN; REQUEST FOR MONETARY SANCTIONS IN THE
AMOUNT OF $3,885.00.
1 Thus, pursuant to California Code of Civil Procedure§ 1987.1, this Court is
2 authorized to make an order quashing Defendants' Deposition Subpoena for Personal
3 Appearance and their Amended Notice of Taking the Deposition of Non-Retained Expert
4 Terri Hansen, RN.
5 Furthermore, California Code of Civil Procedure § 2024.20(a) states in pertinent part
6 that "any party shall be entitled as a matter of right to complete discove1y proceedings on or
7 before the 30th day, and to have motions concerning discovery heard on or before the
8 15th day, before the date initially set for the trial of the action." (Emphasis added; Cal. Code
9 Civ. Proc. § 2024.20).
10 Trial is currently set for January 25, 2021. In this case, pursuant to California Code of
11 Civil Procedure§ 2024.20(a), motions concerning discovery may be heard on or before
12 January 10, 2021. Thus, this Comi is authorized to hear this subject Motion to Quash on or
13 before Januaiy 20, 2021.
14 4. THE CALIFORNIA CODE OF CIVIL PROCEDURE DOES NOT
15 AUTHORIZE DEFENDANTS TO TAKE THE DEPOSITION OF THEIR OWN
16 NON-RETAINED EXPERT, TERRI HANSEN, RN.
17 "On receipt of an expe1i witness list from a party, any other party may take the
18 deposition of any person on the list." (Emphasis Added; Cal. Code Civ. Proc. § 2034.410).
19 Plaintiffs were served with Defendants' expert designation list which designated Terri
20 Hansen, RN as their non-retained expert. At that time, Plaintiffs were authorized by the
21 California Code of Civil Procedure to take the deposition of Terri Hansen, RN; however, the
22 California Code of Civil Procedure does not authorize Defendants to take the deposition of
23 any non-retained expert on their own expert witness list.
. .
24 The California Code of Civil Procedure only authorizes another party to depose a non-
25 retained expert listed on the opposing paiiy's expert designation list. As such, Defendants
26 cannot take the deposition of Terri Hansen, RN because she is designated as an expe1i witness
27 on Defendants' own expert designation list.
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NOTICE OF MOTION AND MOTION TO QUASH DEFENDANTS' DEPOSITION SUBPOENA FOR
PERSONAL APPEARANCE AND AMENDED NOTICE OF TAKING DEPOSITION OF NON-
RETAINED EXPERT TERRI HANSEN, RN; REQUEST FOR MONETARY SANCTIONS IN THE
AMOUNT OF $3,885.00.
1 Since Defendants' cannot depose their own non-retained expert, the Court should
2 grant Plaintiffs' Motion to Quash Defendants' Deposition Subpoena for Personal Appearance
3 and their Amended Notice of Taking the Deposition of Non-Retained Expert TeITi Hansen,
4 RN.
5 5. THE CALIFORNIA CODE OF CIVIL PROCEDURE DOES NOT
6 AUTHORIZE DEFENDANTS TO TAKE THE DEPOSITION OF A NON-
7 RETAINED EXPERT AFTER THE GENERAL DISCOVERY CUTOFF DATE,
8 AND DISCOVERY WAS NOT RE-OPENED.
9 California functionally treats a non-retained expert as a fact witness, and it allows the
10 testimony of such experts based on the idea that such witnesses have valid and useful
11 observations to assist factfinders. As such, a non-retained expe1i must be deposed before the
12 general discovery cutoff date just like any other percipient witness. The paiiies are precluded
13 from taking the deposition of any percipient witness or non-retained expe1i after the general
14 discovery cutoff period. After the general discovery cutoff date, the paiiies may only take the
15 depositions of the parties' retained expe1is.
16 California Code of Civil Procedure § 2024.20 states:
17 "(a) Except as otherwise provided in this chapter, any party shall be entitled
as a matter of right to complete discovery proceedings on or before the
18 30th day, and to have motions concerning discovery heard on or before the
19 15th day, before the date initially set for the trial of the action.
(b) Except as provided in Section 2024.050, a continuance or postponement
20 of the trial date does not operate to reopen discovery proceedings."
(Emphasis added; Cal. Code Civ. Proc. § 2024.20).
21
22 Thus, the parties were entitled to complete discovery, including all depositions of
23 percipient witnesses and non-retained experts, prior to the 30 th day of the date initially set for
24 trial of the action, subject to Section 2024.050.
25 Section 2024.050 states that the court on motion of any party may grant leave to
26 complete discovery proceedings, or to have a motion concerning discovery heard, on a later
27 date. (Cal. Code Civ. Proc. §2024.050(a).) Here, Defendants have not made any such motion
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NOTICE OF MOTION AND MOTION TO QUASH DEFENDANTS' DEPOSITION SUBPOENA FOR
PERSONAL APPEARANCE AND AMENDED NOTICE OF TAKING DEPOSITION OF NON-
RETAINED EXPERT TERRI HANSEN, RN; REQUEST FOR MONETARY SANCTIONS IN THE
AMOUNT OF $3,885.00.
1 prior to issuing the deposition subpoena and notice of taking deposition that is the subject of
2 this Motion.
3 The law is clear that a continuance or postponement of the trial date does not
4 automatically re-open discovery. (Cal. Code Civ. Proc. §2024.020(b).) The California
5 Supreme Court in Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245 ("Fairmont")
6 interpreted section 2024 and construed the language, "before the date initially set for trial of
7 the action" in former section 2024, subdivision (a) (now§ 2024.020, subd. (a)). The Fairmont
8 court held that in the event of a mistrial, order granting a new trial, or remand for a new trial
9 after reversal of a judgment on appeal, the quoted language refers to the first date set for trial
10 in the action following a mistrial, order granting a new trial, or remand for a new trial after
11 reversal on appeal. (Fairmont, supra, 22 Cal.4th at p. 250.) In those circumstances, the
12 discove1y clock is reset and the last day for completing discove1y is measured from the new
13 date initially set for trial. @. at pp. 250-251.)
14 On the other hand, "[i]n the context of an action that has not yet proceeded to trial or
15 otherwise resulted in a dispositive judgment, the phrase 'date initially set for the trial of the
16 action' (Cal. Code Civ. Proc. §2024, subd. (a)) is unambiguous. In such instance, it plainly
17 refers to the first date set for trial of the action. Thus, the statute expressly states that
18 continuance or postponement of that date will not operate to reopen discovery. (Ibid.)"
19 (Fairmont, supra, 22 Cal.4th at p. 250.) (Emphasis added.)
20 Here, the continuance of the trial date from November 30, 2020 to January 25, 2021,
21 was not after a mistrial, remand, or reversal of a judgment after appeal. Rather, the Court
22 continued the trial date to January 25, 2021 because of Plaintiff's counsel's unavailability.
23 The Court did not re-open general discovery. As the California Supreme Court stated in
24 Fairmont, section 2024, subdivision (a) is unambiguous in the context of actions that have not
25 proceeded to trial or otherwise resulted in a dipositive judgment, such as the matter before this
26 Court. The continuance or postponement of the trial date will not operate to reopen discovery
27 automatically.
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NOTICE OF MOTION AND MOTION TO QUASH DEFENDANTS' DEPOSITION SUBPOENA FOR
PERSONAL APPEARANCE AND AMENDED NOTICE OF TAKING DEPOSITION OF NON-
RETAINED EXPERT TERRI HANSEN, RN; REQUEST FOR MONETARY SANCTIONS IN THE
AMOUNT OF $3,885.00.
1 In this case, trial was initially set for November 30, 2020, making the discove1y cutoff
2 date on November 2, 2020. Pursuant to California Code of Civil Procedure§ 2024.20(a),
3 depositions of all fact witness and non-retained experts were to take place on or before
4 November 2, 2020. Neither party has the right to take the deposition of any percipient witness
5 or non-retained expert after November 2, 2020. After November 2, 2020, the parties were
6 authorized to conduct only expert depositions before 15 days of the start of the trial. (See
7 California Code of Civil Procedure§ 2024.030: "Any party shall be entitled as a matter of
8 right to complete discovery proceedings pertaining to a witness identified under Chapter 18
9 (commencing with Section 2034.010) on or before the 15th day[ ... ]before the date initially set
10 for the trial of the action.).
11 Defendants are not authorized to subpoena a percipient witness or a non-retained
12 expert, such as Teni Hansen, RN, after the initial discovery cutoff date of November 2, 2020
13 without a court order. Since this Court did not make an order authorizing the parties to
14 continue general discove1y proceedings, Defendants are precluded from continuing discove1y,
15 especially taking the deposition of their own non-retained expert, after November 2, 2020.
16 Therefore, Defendants' Deposition Subpoena for Personal Appearance and their
17 Amended Notice of Taking the Deposition of Non-Retained Expert Teni Hansen, RN are
18 untimely as they were served after the general discovery cutoff date of November 2, 2020
19 without a court order to continue discove1y proceedings. Thus, this Court should quash
20 Defendants' deposition subpoena and deposition notice of Terri Hansen, RN.
21 6. THE TAKING OF THE DEPOSITION OF TERRI HANSEN, RN MUST BE
22 STAYED PENDING THE OUTCOME OF PLAINTIFFS' MOTION TO
23 QUASH.
24 Pursuant to Califomia Code of Civil Procedure§ 2025.410(c), "a party may also move
25 for an order staying the taking of the deposition and quashing the deposition notice. This
26 motion shall be accompanied by a meet and confer declaration under Section 2016.040. The
27 taking of the deposition is stayed pending the determination of this motion." (Emphasis
28 added; Cal. Code Civ. Proc.§ 2025.410(c)). Thus, if a party is served with a deposition
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NOTICE OF MOTION AND MOTION TO QUASH DEFENDANTS' DEPOSITION SUBPOENA FOR
PERSONAL APPEARANCE AND AMENDED NOTICE OF TAKING DEPOSITION OF NON-
RETAINED EXPERT TERRI HANSEN, RN; REQUEST FOR MONETARY SANCTIONS IN THE
AMOUNT OF $3,885.00.
1 notice, it may move for an order staying the deposition and quashing the deposition notice. If
2 a motion to quash is filed, the taking of the deposition is stayed pending the court's decision
3 on the motion.
4 In this case, upon the filing of this Motion to Quash Defendants' Deposition Subpoena
5 for Personal Appearance and their Amended Notice of Taldng the Deposition of Non-
6 Retained Expert Te1ri Hansen, RN, this Court is required to stay the taking of the deposition
7 of Terri Hansen, RN until such time that this Motion can be heard by the court.
8 Thus, Plaintiffs respectfully request that this Court to stay the taking of the deposition
9 of Terri Hansen, RN upon the filing of this subject Motion to Quash and until such time that
10 the Court renders an order on this motion.
11 7. SANCTIONS AGAINST DEFENDANTS ARE WARRANTED PURSUANT TO
12 CALIFORNIA CODE OF CIVIL PROCEDURE§§ 1987.2 AND 2025.410(d)
13 California Code of Civil Procedure§ 1987.2(a) provides that,
14 "Except as specified in subdivision (b ),in making an order pursuant to
motion made under subdivision (c) or Section 1987.1, the comi may in
15 its discretion award the amount of the reasonable expenses incurred in
16 making or opposing the motion, including reasonable attorney's fees, if
the court finds the motion was made or opposed in bad faith or
17 without substantial justification or that one or more of the requirements
of the subpoena was oppressive. (Cal. Code Civ. Proc. § 1987.2(a).)
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19 And more specific to this Motion to Quash, California Code of Civil Procedure §
20 2025 .410(d) provides that,
21 "The comi shall impose a monetary sanction under Chapter 7 ... against any
party, person, or attorney who unsuccessfully makes or opposes a motion to
22 quash a deposition notice, unless it finds that the one subject to the sanction
23 acted with substantial justification or that other circumstances make the
imposition of the sanction unjust." (Cal. Code Civ. Proc. § 2025.410(d).)
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25 This provision of the Discovery Act of 1986 shifted the "presumption and the burden
26 with respect to 'substantial justification."' (2 Hogan, Cal. Civil Discovery (1997) Sanctions,
27 § 15.4, p. 274.) Under the prior law, the court could impose a monetary sanction only if it
28 made a specific finding that there was no "substantial justification." (See, e.g., Deyo v.
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NOTICE OF MOTION AND MOTION TO QUASH DEFENDANTS' DEPOSITION SUBPOENA FOR
PERSONAL APPEARANCE AND AMENDED NOTICE OF TAKING DEPOSITION OF NON-
RETAINED EXPERT TERRI HANSEN, RN; REQUEST FOR MONETARY SANCTIONS IN THE
AMOUNT OF $3,885.00.
1 Kilbourne (1978) 84 Cal.App.3d 771, 798. Under cunent law therefore, the court will impose
2 the monetary sanction unless the losing party convinces the comi that it acted with
3 "substantial justification."
4 During the parties' meet and confer effo1i, there was no agreement that the taking of
5 the deposition of Teni Hansen, RN would take place. Defendants merely stated that because
6 they had previously noticed the deposition of Teni Hansen, RN on November 16, 2020, they
7 were entitled to re-notice the deposition. Plaintiffs were provided no explanation for the
8 underlying reason why the deposition of Defendants' non-retained expert, Teni Hansen, RN
9 should take place other than that Plaintiffs should accommodate the deposition due to the trial
10 continuance and Teni Hansen, RN's schedule. Plaintiffs were vehement that Defendants
11 could not take the deposition of their own non-retained expert after the general discovery
12 cutoff date and were forced to file a Motion to Quash to preserve their rights.
13 As set forth in the Declaration of Plaintiffs' counsel, Plaintiffs have and will incur
14 $3,885.00 in total fees and costs associated with bringing this Motion to Quash, which
15 includes five (5) hours for preparing the Motion to Quash, three and one-half (3.5) hours for
16 preparation of a Reply brief and appearance time for the hearing at counsel's hourly rate of
17 $450, and $60 filing fee. (Dec. Flint ,r 10).
18 Therefore, Plaintiffs respectfully request that the Court order the Defendants to pay
19 Plaintiffs monetary sanctions in the amount of $3,885.00.
20 8. CONCLUSION
21 Based on the foregoing, Plaintiffs respectfully request that the Court issue an order
22 quashing Defendant's Defendants' Deposition Subpoena for Personal Appearance and their
23 Amended Notice of Taking the Deposition of Non-Retained Expert Teni Hansen, RN
24 pursuant to California Code of Civil Procedure §§ 1987.1 and 2024.020. In addition, Plaintiffs
25 also request that sanctions be awarded in the amount of $3,885.00 to be paid within twenty
26 (20) calendar days from the hearing on this Motion.
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NOTICE OF MOTION AND MOTION TO QUASH DEFENDANTS' DEPOSITION SUBPOENA FOR
PERSONAL APPEARANCE AND AMENDED NOTICE OF TAKING DEPOSITION OF NON-
RETAINED EXPERT TERRI HANSEN, RN; REQUEST FOR MONETARY SANCTIONS IN THE
AMOUNT OF $3,885.00.
1 DATED: January 5, 2021 MORAN LAW
2
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4 Lisa Trinh Flint, Esq.
Attorneys for Plaintiffs, JEFFREY MOR, in
5 and through his Successor-in-Interest,
Jeffrey S. Reisbeck, and MARIE MOR, in
6 and through her Guardian Ad Litem Michele
7 Mor
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NOTICE OF MOTION AND MOTION TO QUASH DEFENDANTS' DEPOSITION SUBPOENA FOR
PERSONAL APPEARANCE AND AMENDED NOTICE OF TAKING DEPOSITION OF NON-
RETAINED EXPERT TERRI HANSEN, RN; REQUEST FOR MONETARY SANCTIONS IN THE
AMOUNT OF $3,885.00.
1 DECLARATION OF LISA TRINH FLINT, ESQ.
2 I, Lisa Trinh Flint, Esq. declare and state the following under penalty of perjury:
3 1. I am an attorney licensed to practice in all the Comis of the State of California.
4 I am a pa1iner at Moran Law, counsel of record for the Plaintiffs, JEFFREY MOR, in and
5 through his Successor-in-Interest, Jeffrey S. Reisbeck, and MARIE MOR, in and through her
6 Guardian Ad Litem Michele Mor. I have personal knowledge of the facts set fmih in this
7 declaration, and if were called upon to do so, could and would competently testify thereto.
8 2. On May 1, 2019, Plaintiffs filed their Complaint for Elder Abuse, Negligence,
9 Violation of California Health and Safety Code§ 1430(b), Willful Misconduct, and Wrongful
10 Death against Defendants.
11 3. Pursuant to the Court's order granting Plaintiffs' Motion for Trial Preference,
12 trial in this matter was initially set for November 30, 2020 making the general discovery cut-
13 off date on November 2, 2020.
14 4. On October 13, 2020, Defendants served their Disclosure of Expert Witness
15 Information, designating Terri Hansen, RN as a non-retained expe1i.
16 5. On November 6, 2020, Defendants served their Notice of Taking the
17 Deposition of Non-Retained Expert Terri Hansen, RN to take place on November 16, 2020.
18 Subsequently, the deposition of Terri Hansen, RN scheduled for November 16, 2020 was
19 taken off calendar.
20 6. On November 16, 2020, Plaintiffs counsel became engaged in trial on another
21 matter. As a result, the trial was continued to January 25, 2021. The Court did not reopen
22 general discovery.
23 7. On December 22, 2020, Defendants served a Deposition Subpoena for
24 Personal Appearance and their Amended Notice of Taking the Deposition of Non-Retained
25 Expert Terri Hansen, RN to take place on Januaiy 6, 2021.
26 8. On December 24, 2020, Plaintiffs' counsel sent correspondence to Defendants'
27 counsel in an attempt to meet and confer over Defendants' Amended Notice of Taking the
28 Deposition of Non-Retained Expert Terri Hansen, RN pursuant to California Code of Civil
Preview
Electronically FILED by Superior Court of California, County of Los Angeles on 01/05/2021 02:28 PM Sherri R. Carter, Executive Officer/Clerk of Court, by K. Hung,Deputy Clerk 1 MORANLAW Michael F. Moran SB# 121665 2 Lisa Trinh Flint SB# 243468 5 Hutton Centre Drive, Suite 1050 3 Santa Ana, CA 92707 Telephone: (714) 549-0333 4 Facsimile: (714) 549-0444 5 Attorneys for Plaintiffs, JEFFREY MOR, in and through his Successor-in-Interest, Jeffrey S. Reisbeck, and MARIE MOR, in and through her Guardian Ad Litem Michele 6 Mor 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF LOS ANGELES [CENTRAL] 10 11 JEFFREY MOR, in and through his Successor-) CASE NO.: 20STCV12538 in-Interest, Jeffrey S. Reisbeck, and MARIE ) [Assigned for all purposes to the Hon. 12 MOR, an individual, ) Michelle Williams Court Dept. 74] 13 Plaintiffs, ~ NOTICE OF MOTION AND MOTION TO QUASH DEFENDANTS' ) 14 vs. ~ DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND 15 MONTROSE SPRINGS SKILLED NURSING) AMENDED NOTICE OF TAKING & WELLNESS CENTER; VERDUGO ) 16 VALLEY SKILLED NURSING & ) DEPOSITION OF NON-RETAINED WELLNESS CENTRE, LLC dba VERDUGO ) EXPERT TERRI HANSEN, RN; 17 VALLEY SKILLED NURSING & ) REQUEST FOR MONETARY WELLNESSCENTRE;BRIUS ) SANCTIONS IN THE AMOUNT OF 18 MANAGEMENT CO., INC.; ROCKPORT ) $2,185.00; DECLARATION OF LISA ADMINISTRATIVE SERVICES, LLC; ) 19 SHLOMO RECHNITZ; and DOES 1 through ) TRINH FLINT, ESQ. 60, inclusive. ) 20 Defendants. ~ Date: June 1, 2021 Time: 8:30 a.m. l 21 Dept.: 74 22 Reservation No.: 432190927103 23 24 25 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _) l Complaint filed: Trial Date: March 30, 2020 January 25, 2021 26 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 27 PLEASE TAKE NOTICE that on June 1, 2021 at 8:30 a.m., or as soon thereafter as 28 this matter may be hearing in Department "74" of the above captioned court located at 111 N. 1 NOTICE OF MOTION AND MOTION TO QUASH DEFENDANTS' DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND AMENDED NOTICE OF TAKING DEPOSITION OF NON- RETAINED EXPERT TERRI HANSEN, RN; REQUEST FOR MONETARY SANCTIONS IN THE AMOUNT OF $2,185.00; DECLARATION OF LISA TRINH FLINT, ESQ. 1 Hill Street, Los Angeles, CA 90012, the Plaintiffs, JEFFREY MOR, in and through his 2 Successor-in-Interest, Jeffrey S. Reisbeck, and MARIE MOR, an individual, will move the 3 Court for an order to: 4 1. Quash Defendants', VERDUGO VALLEY SIULLED NURSING & WELLNESS 5 CENTRE, LLC dba MONTROSE SPRINGS SKILLED NURSING & 6 WELLNESS CENTRE, BRIUS MANAGEMENT CO., INC., ROCKPORT 7 ADMINISTRATIVE SERVICES, LLC, and SHLOMO RECHNITZ's Deposition 8 Subpoena for Personal Appearance on the grounds that Defendants' do not have 9 the authority to subpoena the deposition of their own non-retained expert. 10 2. Quash Defendants', VERDUGO VALLEY SKILLED NURSING & WELLNESS 11 CENTRE, LLC dba MONTROSE SPRINGS SKILLED NURSING & 12 WELLNESS CENTRE, BRIUS MANAGEMENT CO., INC., ROCKPORT 13 ADMINISTRATIVE SERVICES, LLC, and SHLOMO RECHNITZ's Amended 14 Notice of Taking Deposition of Non-Retained Expert TeITi Hansen, RN on the 15 grounds that the deposition notice is untimely given that the deposition date and 16 time fall after the discovery cutoff date. 17 Defendants' subpoena and notice of deposition of non-retained expert TeITi Hansen, 18 RN are untimely and made without legal authority. Therefore, Defendants' deposition 19 subpoena and notice of taking of deposition must be quashed. 20 This Motion to Quash is brought pursuant to California Code of Civil Procedure §§ 21 1987.l(a) and 2024.020 and will be based upon this Notice, the attached Memorandum of 22 Points and Authorities, the attached Declaration of Lisa Trinh Flint, Esq., the supporting 23 documents and exhibits, together with such other and further documentaiy and/or oral 24 evidence as may be presented at the time of the hearing. 25 In addition, the moving party Plaintiffs will request the Court for an order that 26 Defendants pay monetary sanctions to the moving party pursuant to California Code of Civil 27 Procedure § 1987.2 and California Code of Civil Procedure § 2025 .410(d) in the sum of 28 $2,185.00 for the reasonable expenses and attorney's fees incu1Ted by the moving party in 11 NOTICE OF MOTION AND MOTION TO QUASH DEFENDANTS' DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND AMENDED NOTICE OF TAKING DEPOSITION OF NON- RETAINED EXPERT TERRI HANSEN, RN; REQUEST FOR MONETARY SANCTIONS IN THE AMOUNT OF $2,185.00; DECLARATION OF LISA TRINH FLINT, ESQ. 1 connection with this subject Motion to Quash on the grounds that Defendants have provided 2 no legal or justifiable grounds to subpoena the deposition of or notice the taking of the 3 deposition of their non-retained expert, TeITi Hansen, RN beyond the general discovery cutoff 4 date. 5 6 DATED: January 5, 2021 MORANLAW 7 8 Lisa Trinh Flint, Esq. 9 Attorneys for Plaintiffs, JEFFREY MOR, in and through his Successor-in-Interest, 10 Jeffrey S. Reisbeck, and MARIE MOR, in and through her Guardian Ad Litem Michele 11 Mor 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 111 NOTICE OF MOTION AND MOTION TO QUASH DEFENDANTS' DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND AMENDED NOTICE OF TAKING DEPOSITION OF NON- RETAINED EXPERT TERRI HANSEN, RN; REQUEST FOR MONETARY SANCTIONS IN THE AMOUNT OF $2,185.00; DECLARATION OF LISA TRINH FLINT, ESQ. 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 1. INTRODUCTION. 3 Plaintiff, Jeffrey Mor, along with his mother, Marie Mor ("Marie") [collectively, 4 "Plaintiffs"], brought an action against Defendants, MONTROSE SPRINGS SKILLED 5 NURSING & WELLNESS CENTER, VERDUGO VALLEY SKILLED NURSING & 6 WELLNESS CENTRE, LLC dba VERDUGO VALLEY SKILLED NURSING & 7 WELLNESS CENTRE, BRIUS MANAGEMENT CO., INC., ROCKPORT 8 ADMINISTRATIVE SERVICES, LLC, and SHLOMO RECHNITZ [collectively, 9 "Defendants"] for elder abuse, negligence, willful misconduct, violation of California Health 10 and Safety Code §1430(b), and wrongful death, in connection with Jeffrey Mar's ("Mr. Mor") 11 admission at Defendants' skilled nursing facility. 12 While under the care of Defendants, Mr. Mor, who was an elderly, contracted a 13 clostridium difficile ("C. cliff') infection, and exhibited signs of changed condition to which 14 Defendants failed to report to his physician and family in a timely manner. Hence, there was 15 a delay in Mar's diagnosis of the infection, and there was a delay in his care and treatment of 16 the infection by Defendants which caused him to suffer prolonged C. cliff infection beyond the 17 point of recove1y. In addition, Defendants continued to administer blood pressure medicine to 18 Mor against his physician's orders, which caused him to have uncontrollable blood pressure 19 and weakness. As a result, Plaintiff died suddenly without warning under the care of 20 Defendants in their facility. 21 Trial in this matter was initially set for November 30, 2020 making the general 22 discovery cut-off date on November 2, 2020. (Dec. Flint ,r 3). On November 16, 2020, 23 Plaintiffs counsel became engaged in trial on another matter. (Dec. Flint ,r 6). As a result, the 24 trial was continued to January 25, 2021. (Dec. Flint ,r 6). The Court did not re9pen general 25 discovery. (Dec. Flint ,r 6). 26 On December 22, 2020, Defendants issued a Deposition Subpoena for Personal 27 Appearance to Terri Hansen, RN and served on Plaintiffs their Amended Notice of Taking 28 1 NOTICE OF MOTION AND MOTION TO QUASH DEFENDANTS' DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND AMENDED NOTICE OF TAKING DEPOSITION OF NON- RETAINED EXPERT TERRI HANSEN, RN; REQUEST FOR MONETARY SANCTIONS IN THE AMOUNT OF $3,885.00. 1 Deposition ofNon-Retained Expert Teni Hansen, RN for January 6, 2021. Ms. Hansen was 2 never designated on Plaintiff's expert designation. 3 Plaintiffs now file this Motion to Quash Defendants' Deposition Subpoena for 4 Personal Appearance and Amended Notice of Taking Deposition of Non-Retained Expert 5 TeITi Hansen, RN on the grounds Defendants' do not have the authority to subpoena their 6 own non-retained and that the noticed date and time for deposition is untimely since it is set to 7 occur after the discovery cutoff date. 8 2. PROCEDURAL HISTORY. 9 • On May 1, 2019, Plaintiffs filed their Complaint for Elder Abuse, Negligence, 10 Violation of California Health and Safety Code § l 430(b), Willful Misconduct, and 11 Wrongful Death against Defendants. (Declaration of Lisa Trinh Flint ("Dec. Flint") ,r 12 2). 13 • Pursuant to the Court's order granting Plaintiffs' Motion for Tdal Preference, tdal in 14 this matter was initially set for November 30, 2020 making the general discovery cut- 15 off date on November 2, 2020. (Dec. Flint ,r 3). 16 • On October 13, 2020, Defendants served their Disclosure of Expert Witness 17 Information, designating TeITi Hansen, RN as a non-retained expert. (Dec. Flint ,r 4; 18 See Exhibit "1"). 19 • On November 6, 2020, Defendants served their Notice of Taking the Deposition of 20 Non-Retained Expert Terri Hansen, RN to take place on November 16, 2020. 21 Subsequently, the deposition of TeITi Hansen, RN scheduled for November 16, 2020 22 was taken off calendar. (Dec. Flint ,r 5). 23 • On November 16, 2020, Plaintiff's counsel became engaged in trial on another matter. 24 (Dec. Flint ,r 6). As a result, the trial was continued to January 25, 2021. (Dec. Flint ,r 25 6). The Court did not reopen general discovery. (Dec. Flint ,r 6). 26 • On December 22, 2020, Defendants served their Deposition Subpoena for Personal 27 Appearance and their Amended Notice of Talcing the Deposition of Non-Retained 28 2 NOTICE OF MOTION AND MOTION TO QUASH DEFENDANTS' DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND AMENDED NOTICE OF TAKING DEPOSITION OF NON- RETAINED EXPERT TERRI HANSEN, RN; REQUEST FOR MONETARY SANCTIONS IN THE AMOUNT OF $3,885.00. 1 Expe1i Terri Hansen, RN to take place on Januaiy 6, 2021. (Dec. Flint ,r 7; See 2 Exhibit "2"). 3 • On December 24, 2020, Plaintiffs' counsel sent cmrespondence to Defendants' 4 counsel in an attempt to meet and confer over Defendants' Amended Notice of Taking 5 the Deposition of Non-Retained Expe1i Terri Hansen, RN pursuant to California Code 6 of Civil Procedure§ 2016.040. Plaintiffs' counsel informed Defendants' counsel that 7 they were not authorized to notice the deposition of their own non-retained expert and 8 asked that Defendants withdraw the Deposition Subpoena and Notice of Deposition or 9 Plaintiffs would file a motion to quash. (Dec. Flint ,r 8; See Exhibit "3"). 10 • On December 28, 2020, Defendants' counsel sent an email co1Tespondence to 11 Plaintiffs' counsel informing Plaintiffs that because Defendants had noticed the 12 deposition of TeITi Hansen, RN on November 16, 2020 and that the Court continued 13 the trial date, the deposition of Te1Ti Hansen, RN should go forward. (Dec. Flint ,r 9; 14 See Exhibit "4"). 15 3. PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 16 1987.1, THIS COURT IS AUTHORIZED TO MAKE AN ORDER QUASHING 17 THE DEPOSITION SUBPOENA AND AMENDED NOTICE OF TAKING THE 18 DEPOSTION OF TERRI HANSEN, RN. 19 California Code of Civil Procedure Section 1987.1 states: 20 "If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a comi, or 21 at the trial of an issue therein, or at the taking of a deposition, the court, upon 22 motion reasonably made by any person described in subdivision (b ),or upon the court's own motion after giving counsel notice and an 23 opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or 24 conditions as the court shall declare, including protective orders. In 25 addition, the comi may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable 26 violations of the right of privacy of the person." (Emphasis Added; Cal. Code Civ. Proc.§ 1987.1). 27 28 3 NOTICE OF MOTION AND MOTION TO QUASH DEFENDANTS' DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND AMENDED NOTICE OF TAKING DEPOSITION OF NON- RETAINED EXPERT TERRI HANSEN, RN; REQUEST FOR MONETARY SANCTIONS IN THE AMOUNT OF $3,885.00. 1 Thus, pursuant to California Code of Civil Procedure§ 1987.1, this Court is 2 authorized to make an order quashing Defendants' Deposition Subpoena for Personal 3 Appearance and their Amended Notice of Taking the Deposition of Non-Retained Expert 4 Terri Hansen, RN. 5 Furthermore, California Code of Civil Procedure § 2024.20(a) states in pertinent part 6 that "any party shall be entitled as a matter of right to complete discove1y proceedings on or 7 before the 30th day, and to have motions concerning discovery heard on or before the 8 15th day, before the date initially set for the trial of the action." (Emphasis added; Cal. Code 9 Civ. Proc. § 2024.20). 10 Trial is currently set for January 25, 2021. In this case, pursuant to California Code of 11 Civil Procedure§ 2024.20(a), motions concerning discovery may be heard on or before 12 January 10, 2021. Thus, this Comi is authorized to hear this subject Motion to Quash on or 13 before Januaiy 20, 2021. 14 4. THE CALIFORNIA CODE OF CIVIL PROCEDURE DOES NOT 15 AUTHORIZE DEFENDANTS TO TAKE THE DEPOSITION OF THEIR OWN 16 NON-RETAINED EXPERT, TERRI HANSEN, RN. 17 "On receipt of an expe1i witness list from a party, any other party may take the 18 deposition of any person on the list." (Emphasis Added; Cal. Code Civ. Proc. § 2034.410). 19 Plaintiffs were served with Defendants' expert designation list which designated Terri 20 Hansen, RN as their non-retained expert. At that time, Plaintiffs were authorized by the 21 California Code of Civil Procedure to take the deposition of Terri Hansen, RN; however, the 22 California Code of Civil Procedure does not authorize Defendants to take the deposition of 23 any non-retained expert on their own expert witness list. . . 24 The California Code of Civil Procedure only authorizes another party to depose a non- 25 retained expert listed on the opposing paiiy's expert designation list. As such, Defendants 26 cannot take the deposition of Terri Hansen, RN because she is designated as an expe1i witness 27 on Defendants' own expert designation list. 28 4 NOTICE OF MOTION AND MOTION TO QUASH DEFENDANTS' DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND AMENDED NOTICE OF TAKING DEPOSITION OF NON- RETAINED EXPERT TERRI HANSEN, RN; REQUEST FOR MONETARY SANCTIONS IN THE AMOUNT OF $3,885.00. 1 Since Defendants' cannot depose their own non-retained expert, the Court should 2 grant Plaintiffs' Motion to Quash Defendants' Deposition Subpoena for Personal Appearance 3 and their Amended Notice of Taking the Deposition of Non-Retained Expert TeITi Hansen, 4 RN. 5 5. THE CALIFORNIA CODE OF CIVIL PROCEDURE DOES NOT 6 AUTHORIZE DEFENDANTS TO TAKE THE DEPOSITION OF A NON- 7 RETAINED EXPERT AFTER THE GENERAL DISCOVERY CUTOFF DATE, 8 AND DISCOVERY WAS NOT RE-OPENED. 9 California functionally treats a non-retained expert as a fact witness, and it allows the 10 testimony of such experts based on the idea that such witnesses have valid and useful 11 observations to assist factfinders. As such, a non-retained expe1i must be deposed before the 12 general discovery cutoff date just like any other percipient witness. The paiiies are precluded 13 from taking the deposition of any percipient witness or non-retained expe1i after the general 14 discovery cutoff period. After the general discovery cutoff date, the paiiies may only take the 15 depositions of the parties' retained expe1is. 16 California Code of Civil Procedure § 2024.20 states: 17 "(a) Except as otherwise provided in this chapter, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 18 30th day, and to have motions concerning discovery heard on or before the 19 15th day, before the date initially set for the trial of the action. (b) Except as provided in Section 2024.050, a continuance or postponement 20 of the trial date does not operate to reopen discovery proceedings." (Emphasis added; Cal. Code Civ. Proc. § 2024.20). 21 22 Thus, the parties were entitled to complete discovery, including all depositions of 23 percipient witnesses and non-retained experts, prior to the 30 th day of the date initially set for 24 trial of the action, subject to Section 2024.050. 25 Section 2024.050 states that the court on motion of any party may grant leave to 26 complete discovery proceedings, or to have a motion concerning discovery heard, on a later 27 date. (Cal. Code Civ. Proc. §2024.050(a).) Here, Defendants have not made any such motion 28 5 NOTICE OF MOTION AND MOTION TO QUASH DEFENDANTS' DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND AMENDED NOTICE OF TAKING DEPOSITION OF NON- RETAINED EXPERT TERRI HANSEN, RN; REQUEST FOR MONETARY SANCTIONS IN THE AMOUNT OF $3,885.00. 1 prior to issuing the deposition subpoena and notice of taking deposition that is the subject of 2 this Motion. 3 The law is clear that a continuance or postponement of the trial date does not 4 automatically re-open discovery. (Cal. Code Civ. Proc. §2024.020(b).) The California 5 Supreme Court in Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245 ("Fairmont") 6 interpreted section 2024 and construed the language, "before the date initially set for trial of 7 the action" in former section 2024, subdivision (a) (now§ 2024.020, subd. (a)). The Fairmont 8 court held that in the event of a mistrial, order granting a new trial, or remand for a new trial 9 after reversal of a judgment on appeal, the quoted language refers to the first date set for trial 10 in the action following a mistrial, order granting a new trial, or remand for a new trial after 11 reversal on appeal. (Fairmont, supra, 22 Cal.4th at p. 250.) In those circumstances, the 12 discove1y clock is reset and the last day for completing discove1y is measured from the new 13 date initially set for trial. @. at pp. 250-251.) 14 On the other hand, "[i]n the context of an action that has not yet proceeded to trial or 15 otherwise resulted in a dispositive judgment, the phrase 'date initially set for the trial of the 16 action' (Cal. Code Civ. Proc. §2024, subd. (a)) is unambiguous. In such instance, it plainly 17 refers to the first date set for trial of the action. Thus, the statute expressly states that 18 continuance or postponement of that date will not operate to reopen discovery. (Ibid.)" 19 (Fairmont, supra, 22 Cal.4th at p. 250.) (Emphasis added.) 20 Here, the continuance of the trial date from November 30, 2020 to January 25, 2021, 21 was not after a mistrial, remand, or reversal of a judgment after appeal. Rather, the Court 22 continued the trial date to January 25, 2021 because of Plaintiff's counsel's unavailability. 23 The Court did not re-open general discovery. As the California Supreme Court stated in 24 Fairmont, section 2024, subdivision (a) is unambiguous in the context of actions that have not 25 proceeded to trial or otherwise resulted in a dipositive judgment, such as the matter before this 26 Court. The continuance or postponement of the trial date will not operate to reopen discovery 27 automatically. 28 6 NOTICE OF MOTION AND MOTION TO QUASH DEFENDANTS' DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND AMENDED NOTICE OF TAKING DEPOSITION OF NON- RETAINED EXPERT TERRI HANSEN, RN; REQUEST FOR MONETARY SANCTIONS IN THE AMOUNT OF $3,885.00. 1 In this case, trial was initially set for November 30, 2020, making the discove1y cutoff 2 date on November 2, 2020. Pursuant to California Code of Civil Procedure§ 2024.20(a), 3 depositions of all fact witness and non-retained experts were to take place on or before 4 November 2, 2020. Neither party has the right to take the deposition of any percipient witness 5 or non-retained expert after November 2, 2020. After November 2, 2020, the parties were 6 authorized to conduct only expert depositions before 15 days of the start of the trial. (See 7 California Code of Civil Procedure§ 2024.030: "Any party shall be entitled as a matter of 8 right to complete discovery proceedings pertaining to a witness identified under Chapter 18 9 (commencing with Section 2034.010) on or before the 15th day[ ... ]before the date initially set 10 for the trial of the action.). 11 Defendants are not authorized to subpoena a percipient witness or a non-retained 12 expert, such as Teni Hansen, RN, after the initial discovery cutoff date of November 2, 2020 13 without a court order. Since this Court did not make an order authorizing the parties to 14 continue general discove1y proceedings, Defendants are precluded from continuing discove1y, 15 especially taking the deposition of their own non-retained expert, after November 2, 2020. 16 Therefore, Defendants' Deposition Subpoena for Personal Appearance and their 17 Amended Notice of Taking the Deposition of Non-Retained Expert Teni Hansen, RN are 18 untimely as they were served after the general discovery cutoff date of November 2, 2020 19 without a court order to continue discove1y proceedings. Thus, this Court should quash 20 Defendants' deposition subpoena and deposition notice of Terri Hansen, RN. 21 6. THE TAKING OF THE DEPOSITION OF TERRI HANSEN, RN MUST BE 22 STAYED PENDING THE OUTCOME OF PLAINTIFFS' MOTION TO 23 QUASH. 24 Pursuant to Califomia Code of Civil Procedure§ 2025.410(c), "a party may also move 25 for an order staying the taking of the deposition and quashing the deposition notice. This 26 motion shall be accompanied by a meet and confer declaration under Section 2016.040. The 27 taking of the deposition is stayed pending the determination of this motion." (Emphasis 28 added; Cal. Code Civ. Proc.§ 2025.410(c)). Thus, if a party is served with a deposition 7 NOTICE OF MOTION AND MOTION TO QUASH DEFENDANTS' DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND AMENDED NOTICE OF TAKING DEPOSITION OF NON- RETAINED EXPERT TERRI HANSEN, RN; REQUEST FOR MONETARY SANCTIONS IN THE AMOUNT OF $3,885.00. 1 notice, it may move for an order staying the deposition and quashing the deposition notice. If 2 a motion to quash is filed, the taking of the deposition is stayed pending the court's decision 3 on the motion. 4 In this case, upon the filing of this Motion to Quash Defendants' Deposition Subpoena 5 for Personal Appearance and their Amended Notice of Taldng the Deposition of Non- 6 Retained Expert Te1ri Hansen, RN, this Court is required to stay the taking of the deposition 7 of Terri Hansen, RN until such time that this Motion can be heard by the court. 8 Thus, Plaintiffs respectfully request that this Court to stay the taking of the deposition 9 of Terri Hansen, RN upon the filing of this subject Motion to Quash and until such time that 10 the Court renders an order on this motion. 11 7. SANCTIONS AGAINST DEFENDANTS ARE WARRANTED PURSUANT TO 12 CALIFORNIA CODE OF CIVIL PROCEDURE§§ 1987.2 AND 2025.410(d) 13 California Code of Civil Procedure§ 1987.2(a) provides that, 14 "Except as specified in subdivision (b ),in making an order pursuant to motion made under subdivision (c) or Section 1987.1, the comi may in 15 its discretion award the amount of the reasonable expenses incurred in 16 making or opposing the motion, including reasonable attorney's fees, if the court finds the motion was made or opposed in bad faith or 17 without substantial justification or that one or more of the requirements of the subpoena was oppressive. (Cal. Code Civ. Proc. § 1987.2(a).) 18 19 And more specific to this Motion to Quash, California Code of Civil Procedure § 20 2025 .410(d) provides that, 21 "The comi shall impose a monetary sanction under Chapter 7 ... against any party, person, or attorney who unsuccessfully makes or opposes a motion to 22 quash a deposition notice, unless it finds that the one subject to the sanction 23 acted with substantial justification or that other circumstances make the imposition of the sanction unjust." (Cal. Code Civ. Proc. § 2025.410(d).) 24 25 This provision of the Discovery Act of 1986 shifted the "presumption and the burden 26 with respect to 'substantial justification."' (2 Hogan, Cal. Civil Discovery (1997) Sanctions, 27 § 15.4, p. 274.) Under the prior law, the court could impose a monetary sanction only if it 28 made a specific finding that there was no "substantial justification." (See, e.g., Deyo v. 8 NOTICE OF MOTION AND MOTION TO QUASH DEFENDANTS' DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND AMENDED NOTICE OF TAKING DEPOSITION OF NON- RETAINED EXPERT TERRI HANSEN, RN; REQUEST FOR MONETARY SANCTIONS IN THE AMOUNT OF $3,885.00. 1 Kilbourne (1978) 84 Cal.App.3d 771, 798. Under cunent law therefore, the court will impose 2 the monetary sanction unless the losing party convinces the comi that it acted with 3 "substantial justification." 4 During the parties' meet and confer effo1i, there was no agreement that the taking of 5 the deposition of Teni Hansen, RN would take place. Defendants merely stated that because 6 they had previously noticed the deposition of Teni Hansen, RN on November 16, 2020, they 7 were entitled to re-notice the deposition. Plaintiffs were provided no explanation for the 8 underlying reason why the deposition of Defendants' non-retained expert, Teni Hansen, RN 9 should take place other than that Plaintiffs should accommodate the deposition due to the trial 10 continuance and Teni Hansen, RN's schedule. Plaintiffs were vehement that Defendants 11 could not take the deposition of their own non-retained expert after the general discovery 12 cutoff date and were forced to file a Motion to Quash to preserve their rights. 13 As set forth in the Declaration of Plaintiffs' counsel, Plaintiffs have and will incur 14 $3,885.00 in total fees and costs associated with bringing this Motion to Quash, which 15 includes five (5) hours for preparing the Motion to Quash, three and one-half (3.5) hours for 16 preparation of a Reply brief and appearance time for the hearing at counsel's hourly rate of 17 $450, and $60 filing fee. (Dec. Flint ,r 10). 18 Therefore, Plaintiffs respectfully request that the Court order the Defendants to pay 19 Plaintiffs monetary sanctions in the amount of $3,885.00. 20 8. CONCLUSION 21 Based on the foregoing, Plaintiffs respectfully request that the Court issue an order 22 quashing Defendant's Defendants' Deposition Subpoena for Personal Appearance and their 23 Amended Notice of Taking the Deposition of Non-Retained Expert Teni Hansen, RN 24 pursuant to California Code of Civil Procedure §§ 1987.1 and 2024.020. In addition, Plaintiffs 25 also request that sanctions be awarded in the amount of $3,885.00 to be paid within twenty 26 (20) calendar days from the hearing on this Motion. 27 28 9 NOTICE OF MOTION AND MOTION TO QUASH DEFENDANTS' DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND AMENDED NOTICE OF TAKING DEPOSITION OF NON- RETAINED EXPERT TERRI HANSEN, RN; REQUEST FOR MONETARY SANCTIONS IN THE AMOUNT OF $3,885.00. 1 DATED: January 5, 2021 MORAN LAW 2 3 4 Lisa Trinh Flint, Esq. Attorneys for Plaintiffs, JEFFREY MOR, in 5 and through his Successor-in-Interest, Jeffrey S. Reisbeck, and MARIE MOR, in 6 and through her Guardian Ad Litem Michele 7 Mor 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 NOTICE OF MOTION AND MOTION TO QUASH DEFENDANTS' DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND AMENDED NOTICE OF TAKING DEPOSITION OF NON- RETAINED EXPERT TERRI HANSEN, RN; REQUEST FOR MONETARY SANCTIONS IN THE AMOUNT OF $3,885.00. 1 DECLARATION OF LISA TRINH FLINT, ESQ. 2 I, Lisa Trinh Flint, Esq. declare and state the following under penalty of perjury: 3 1. I am an attorney licensed to practice in all the Comis of the State of California. 4 I am a pa1iner at Moran Law, counsel of record for the Plaintiffs, JEFFREY MOR, in and 5 through his Successor-in-Interest, Jeffrey S. Reisbeck, and MARIE MOR, in and through her 6 Guardian Ad Litem Michele Mor. I have personal knowledge of the facts set fmih in this 7 declaration, and if were called upon to do so, could and would competently testify thereto. 8 2. On May 1, 2019, Plaintiffs filed their Complaint for Elder Abuse, Negligence, 9 Violation of California Health and Safety Code§ 1430(b), Willful Misconduct, and Wrongful 10 Death against Defendants. 11 3. Pursuant to the Court's order granting Plaintiffs' Motion for Trial Preference, 12 trial in this matter was initially set for November 30, 2020 making the general discovery cut- 13 off date on November 2, 2020. 14 4. On October 13, 2020, Defendants served their Disclosure of Expert Witness 15 Information, designating Terri Hansen, RN as a non-retained expe1i. 16 5. On November 6, 2020, Defendants served their Notice of Taking the 17 Deposition of Non-Retained Expert Terri Hansen, RN to take place on November 16, 2020. 18 Subsequently, the deposition of Terri Hansen, RN scheduled for November 16, 2020 was 19 taken off calendar. 20 6. On November 16, 2020, Plaintiffs counsel became engaged in trial on another 21 matter. As a result, the trial was continued to January 25, 2021. The Court did not reopen 22 general discovery. 23 7. On December 22, 2020, Defendants served a Deposition Subpoena for 24 Personal Appearance and their Amended Notice of Taking the Deposition of Non-Retained 25 Expert Terri Hansen, RN to take place on Januaiy 6, 2021. 26 8. On December 24, 2020, Plaintiffs' counsel sent correspondence to Defendants' 27 counsel in an attempt to meet and confer over Defendants' Amended Notice of Taking the 28 Deposition of Non-Retained Expert Terri Hansen, RN pursuant to California Code of Civil