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John P. Sciacca, SBN 265049
Taylor J. Turville, SBN 319877
POWERS MILLER
A Professional Corporation
3500 Douglas Blvd, Suite 100
Roseville, California 95661
Telephone No. (916) 924-7900
Telecopier No. (916) 924-7980
Attorneys for Defendant,
KAN MORGAN
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
ELIZABETH MARY POPE, BY AND Case No. 19CV349134
THROUGH HER GUARDIAN AD LITEM,
CLIVEDEN CHEW HAAS, MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
Plaintiff(s), MOTION TO COMPEL DEPOSITION OF
PERSON MOST KNOWLEDGEABLE
vs. REGARDING BILLING AT REGIONAL
MEDICAL CENTER AND COMPLIANCE
KAN MORGAN AND DOES 1-50 WITH SUBPOENA
Defendants.
Defendant KAN MORGAN respectfully submit the following points
and authorities in support of his motion to compel the deposition
of the person most knowledgeable (‘PMK’) regarding billing at
Regional Medical Center in San Jose (‘REGIONAL’) and compliance
with the accompanying subpoena for document production.
i. STATEMENT OF FACTS
This case arises out of an automobile collision that occurred
on December 28, 2018 in Milpitas, California and the resulting
personal injuries and damages claimed by Plaintiff. (Declaration of
Taylor J. Turville 43; hereinafter “TJT Dec.”).
On September 10, 2019, Plaintiff ELIZABETH MARY POPE responded
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL10
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POWERS & MILLER
A Professional Corporation
to Defendant KAN MORGANS’ Form Interrogatories, Set One and Special
Interrogatories, Set One. (TUT Dec. 44; Exhibit A attached
thereto). Specifically, Plaintiff ELIZABETH MARY POPE alleged to
have sustained injuries to her skull, scalp and brain matter
causing negative long-term effects to her mental capacity and
competence as a result of the incident. (Ibid.).
Plaintiff ELIZABETH MARY POPE was transported to REGIONAL via
ambulance after the incident occurred where she was treated for a
scalp laceration and evaluated for other injuries. (Ibid.) She had
imaging done that showed a brain bleed and she was admitted to the
ICU at REGIONAL. She was transferred from REGIONAL to Valley House
Rehabilitation on January 6, 2019. (Ibid.).
On May 26, 2020, defense counsel caused a notice and subpoena
to be served on REGIONAL located at 225 N Jackson Avenue, San Jose,
California 95116. (TJT Dec. 96; Exhibit B attached thereto). That
subpoena requested the oral deposition via Zoom of the PMK
regarding billings of Plaintiff ELIZABETH MARY POPE and to produce
the following on July 1, 2020 at 11:00 a.m.:
Any and all records, printouts, electronically
stored information, and all other documents
regarding billing for treatment provided at
Regional Medical Center to Elizabeth Mary
Pope, whose date of birth is 10/24/49, for
injuries as a result of the accident that
occurred on or about 12/28/18, the amounts
paid from any source, amounts written off,
adjusted or reduced, and efforts that have
been made, or will be made, to collect the
unpaid balance, if any. (Exhibit B.)
On June 9, 2020, defense counsel served an amended notice and
subpoena to REGIONAL, changing the date of the oral deposition of
REGIONAL PMK via Zoom and the above mentioned documents to be
produced on July 13, 2020 at 10:00 a.m. (TUT Dec. §8; Exhibit c
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPELOo ND
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POWERS & MILLER
A Professional Corporation
attached thereto.)
Defense counsel received no objection to the oral deposition
of the PMK at Regional nor an objection to producing the documents
mentioned in the subpoena. (TUT Dec. 410.) However on July 13,
2020, there was no appearance by the PMK of REGIONAL and no
documents produced. (Ibid.).
This PMK deposition and the records requested are considered
to be highly relevant to the present action due to Plaintiff
ELIZABETH MARY POPE’s accident related treatment for approximately
9 days at REGIONAL prior to her being transferred to Valley House
Rehabilitation on January 6, 2019. (TUT Dec. qil.).
To date, REGIONAL has failed to comply with the oral
deposition via Zoom and with the terms of the subpoena. (TUT Dec.
q12).
II. LEGAL ARGUMENT
A. A MOTION TO COMPEL IS PROPER
Pursuant to the language on the deposition subpoena,
“disobedience of this subpoena may be punished as contempt by this
court.” It is the subpoenaing party's obligation to seek a court
order if it wishes to compel compliance with the subpoena.
(Unzipped Apparel LLC v. Bader (2007) 156 Cal.App.4th 123.) Sucha
request for an order compelling response is being done herein.
B. REGIONAL SHOULD BE COMPELLED TO COMPLY WITH DEFENDANT’ S
LAWFUL NOTICE AND SUBPOENA
California Code of Civil Procedure § 1987.1(a) provides in
relevant part:
If a subpoena requires the attendance of a
witness or the production of books, documents,
electronically stored information, or other
things ... at the taking of a deposition, the
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPELYI DA WwW aA
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POWERS & MILLER
A Professional Corporation
court, upon motion reasonably made by any
person described in subdivision (b) ... may
take an order ... directing compliance with it
upon those terms or conditions as the court
shall declare ....”
In the instant case, Defendant’s counsel caused to be served
upon REGIONAL a lawful subpoena requesting appearance for an oral
deposition via Zoom and production of highly relevant and non-
privileged records. Pursuant to the amended subpoena, production
was to be made no later than July 13, 2020. REGIONAL failed to
comply with defendant’s subpoena request. As of the date of this
motion, REGIONAL has still not produced the PMK for oral deposition
or the documents sought via subpoena, nor has it provided the
grounds for its refusal to comply.
Cc. A REQUEST FOR SANCTIONS IS PROPER
Pursuant to Unzipped Apparel LLC v. Bader, (2007), Supra 156
, “{i]n civil litigation, discovery may be obtained froma nonparty
only through a “deposition subpoena.” (See C.C.P. § 2020.010 subd.
(b).) The Civil Discovery Act authorizes a nonparty’s “oral
deposition,” “written deposition,” and “deposition for [the]
production of business records” (C.C.P. § 2020.010, subd.
(a) (1)-(3);7 C.C.P. § 2020.410.)
Code of Civil Procedure § 2023.010 provides in pertinent part:
Misuse of the discovery process include, but
are not limited to, the following:
kK*
(d) Failure to respond or to submit to an
authorized method of discovery.
Code of Civil Procedure § 2030.030 provides in pertinent part:
To the extent authorized by the chapter
governing any particular discovery method or
any other provision of this title, the court,
after notice to any affected party, person, or
attorney, and after the opportunity for
4
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL1a we & w&
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OWS a TLR
A Peedenonat Connon
hearing, may impos follow
inst anyone engaging in condu
Misuse of @ discovery process:
fa) he court may impese a monetary
ordering that o jing in
the discovery process, or any attorney
ising that conduct, or both
icluding a
adv
reasonable expenses,
fees, incurred by anyone as 4 re
sonduct . . . . TE a
is authorized by any pro
title, the court shall impose
a pabetion unless it fin that the
” pub pect 2 sanction ted with
tantial justi at other
circumstances make the impasit the
sanction unjust,
On the basis of Code of Civil Procedure §
$9Q@7.50 rad ted in the following
anctions in the ameunt.
w
declaration of Taylor J. Turville are proper
ELE. CONCLUSION
for the foregoing reasons, Defendant tespect
ully requests
the Court grant its motion to compel the oral deposition of
the REGIONAL PMX with regard te Plaintiff's billing records for
accident related treatment and the requested documents sought
pursuant to Skbpcena served on REGIONAL and for an award o
sanctions in the amount of 5367.50 fer ite failure te comply with
4 lawful subpoena.
ATED: July 30, 2026 POWERS MILLER
SUPPORT OF MOTION [0 COMPELu
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Pope v. Morgan
Santa Clara County Superior Court No. 19CV349134
PROOF OF SERVICE
I ama citizen of the United States, employed in the County of
Placer, State of California. My business address is 3500 Douglas
Boulevard, Suite 100, Roseville, California 95661. I am over the
age of 18 years and not a party to the above-entitled action.
On July 31, 2020, I caused the within MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION TO COMPEL DEPOSITION OF PERSON
MOST KNOWLEDGEABLE REGARDING BILLING AT REGIONAL MEDICAL CENTER AND
COMPLIANCE WITH SUBPOENA the original of which was produced on
recycled paper, to be served as follows:
XX_ MAIL - I am readily familiar with Powers Miller’s practice for
collection and processing of correspondence for mailing with
the United States Postal Services. Pursuant to said practice,
each document is placed in an envelope, the envelope is
sealed, the appropriate postage is placed thereon and the
sealed envelope is placed in the office mail receptacle. Each
day’s mail is collected and deposited in a U.S. mailbox at
Roseville, California at or before the close of each day’s
business. (CCP Section 1013a(3) .)
FACSIMILE - July 31, 2020 at _ a.m./p.m., by use of
facsimile machine telephone number (916) 924-7980, I served a
true copy of the aforementioned document(s) on the parties in
said action by transmitting by facsimile machine to the
numbers as set forth below. The facsimile machine I used
complied with California Rules of Court, Rule 2003(3) and no
error was reported by the machine. Pursuant to California
Rules of Court, Rule 2008(e), I caused the machine to print a
transmission records of the transmission, a copy of which is
attached to this Declaration.
XX_ PERSONAL SERVICE - Delivered by hand to the addressee
addressed as set forth below.
OVERNIGHT COURIER - By causing a true copy and/or original
thereof to be personally delivered via the following overnight
courier service.
Louis S. Abronson Regional Medical Center
Abronson Law Offices 225 N Jackson Ave
332 North 2nd Street San Jose, CA 95116
San Jose CA 95112
F: 408-395-1955 VIA PERSONAL SERVICE ONLY
SENT VIA MAIL ONLY
I declare under penalty of perjury under the laws of the State
of California that the foregoing is true and correct, and that this
declaration was executed on July 31, 2020, at Roseville,
California.
f
(JORDAN FISCHER
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John P. Sciacca, SBN 265049 Taylor J. Turville, SBN 319877 POWERS MILLER A Professional Corporation 3500 Douglas Blvd, Suite 100 Roseville, California 95661 Telephone No. (916) 924-7900 Telecopier No. (916) 924-7980 Attorneys for Defendant, KAN MORGAN SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA ELIZABETH MARY POPE, BY AND Case No. 19CV349134 THROUGH HER GUARDIAN AD LITEM, CLIVEDEN CHEW HAAS, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF Plaintiff(s), MOTION TO COMPEL DEPOSITION OF PERSON MOST KNOWLEDGEABLE vs. REGARDING BILLING AT REGIONAL MEDICAL CENTER AND COMPLIANCE KAN MORGAN AND DOES 1-50 WITH SUBPOENA Defendants. Defendant KAN MORGAN respectfully submit the following points and authorities in support of his motion to compel the deposition of the person most knowledgeable (‘PMK’) regarding billing at Regional Medical Center in San Jose (‘REGIONAL’) and compliance with the accompanying subpoena for document production. i. STATEMENT OF FACTS This case arises out of an automobile collision that occurred on December 28, 2018 in Milpitas, California and the resulting personal injuries and damages claimed by Plaintiff. (Declaration of Taylor J. Turville 43; hereinafter “TJT Dec.”). On September 10, 2019, Plaintiff ELIZABETH MARY POPE responded 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL10 ia 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 POWERS & MILLER A Professional Corporation to Defendant KAN MORGANS’ Form Interrogatories, Set One and Special Interrogatories, Set One. (TUT Dec. 44; Exhibit A attached thereto). Specifically, Plaintiff ELIZABETH MARY POPE alleged to have sustained injuries to her skull, scalp and brain matter causing negative long-term effects to her mental capacity and competence as a result of the incident. (Ibid.). Plaintiff ELIZABETH MARY POPE was transported to REGIONAL via ambulance after the incident occurred where she was treated for a scalp laceration and evaluated for other injuries. (Ibid.) She had imaging done that showed a brain bleed and she was admitted to the ICU at REGIONAL. She was transferred from REGIONAL to Valley House Rehabilitation on January 6, 2019. (Ibid.). On May 26, 2020, defense counsel caused a notice and subpoena to be served on REGIONAL located at 225 N Jackson Avenue, San Jose, California 95116. (TJT Dec. 96; Exhibit B attached thereto). That subpoena requested the oral deposition via Zoom of the PMK regarding billings of Plaintiff ELIZABETH MARY POPE and to produce the following on July 1, 2020 at 11:00 a.m.: Any and all records, printouts, electronically stored information, and all other documents regarding billing for treatment provided at Regional Medical Center to Elizabeth Mary Pope, whose date of birth is 10/24/49, for injuries as a result of the accident that occurred on or about 12/28/18, the amounts paid from any source, amounts written off, adjusted or reduced, and efforts that have been made, or will be made, to collect the unpaid balance, if any. (Exhibit B.) On June 9, 2020, defense counsel served an amended notice and subpoena to REGIONAL, changing the date of the oral deposition of REGIONAL PMK via Zoom and the above mentioned documents to be produced on July 13, 2020 at 10:00 a.m. (TUT Dec. §8; Exhibit c 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPELOo ND o 0 1 i 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 POWERS & MILLER A Professional Corporation attached thereto.) Defense counsel received no objection to the oral deposition of the PMK at Regional nor an objection to producing the documents mentioned in the subpoena. (TUT Dec. 410.) However on July 13, 2020, there was no appearance by the PMK of REGIONAL and no documents produced. (Ibid.). This PMK deposition and the records requested are considered to be highly relevant to the present action due to Plaintiff ELIZABETH MARY POPE’s accident related treatment for approximately 9 days at REGIONAL prior to her being transferred to Valley House Rehabilitation on January 6, 2019. (TUT Dec. qil.). To date, REGIONAL has failed to comply with the oral deposition via Zoom and with the terms of the subpoena. (TUT Dec. q12). II. LEGAL ARGUMENT A. A MOTION TO COMPEL IS PROPER Pursuant to the language on the deposition subpoena, “disobedience of this subpoena may be punished as contempt by this court.” It is the subpoenaing party's obligation to seek a court order if it wishes to compel compliance with the subpoena. (Unzipped Apparel LLC v. Bader (2007) 156 Cal.App.4th 123.) Sucha request for an order compelling response is being done herein. B. REGIONAL SHOULD BE COMPELLED TO COMPLY WITH DEFENDANT’ S LAWFUL NOTICE AND SUBPOENA California Code of Civil Procedure § 1987.1(a) provides in relevant part: If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things ... at the taking of a deposition, the 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPELYI DA WwW aA 10 ul 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 POWERS & MILLER A Professional Corporation court, upon motion reasonably made by any person described in subdivision (b) ... may take an order ... directing compliance with it upon those terms or conditions as the court shall declare ....” In the instant case, Defendant’s counsel caused to be served upon REGIONAL a lawful subpoena requesting appearance for an oral deposition via Zoom and production of highly relevant and non- privileged records. Pursuant to the amended subpoena, production was to be made no later than July 13, 2020. REGIONAL failed to comply with defendant’s subpoena request. As of the date of this motion, REGIONAL has still not produced the PMK for oral deposition or the documents sought via subpoena, nor has it provided the grounds for its refusal to comply. Cc. A REQUEST FOR SANCTIONS IS PROPER Pursuant to Unzipped Apparel LLC v. Bader, (2007), Supra 156 , “{i]n civil litigation, discovery may be obtained froma nonparty only through a “deposition subpoena.” (See C.C.P. § 2020.010 subd. (b).) The Civil Discovery Act authorizes a nonparty’s “oral deposition,” “written deposition,” and “deposition for [the] production of business records” (C.C.P. § 2020.010, subd. (a) (1)-(3);7 C.C.P. § 2020.410.) Code of Civil Procedure § 2023.010 provides in pertinent part: Misuse of the discovery process include, but are not limited to, the following: kK* (d) Failure to respond or to submit to an authorized method of discovery. Code of Civil Procedure § 2030.030 provides in pertinent part: To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after the opportunity for 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL1a we & w& 2M OWS a TLR A Peedenonat Connon hearing, may impos follow inst anyone engaging in condu Misuse of @ discovery process: fa) he court may impese a monetary ordering that o jing in the discovery process, or any attorney ising that conduct, or both icluding a adv reasonable expenses, fees, incurred by anyone as 4 re sonduct . . . . TE a is authorized by any pro title, the court shall impose a pabetion unless it fin that the ” pub pect 2 sanction ted with tantial justi at other circumstances make the impasit the sanction unjust, On the basis of Code of Civil Procedure § $9Q@7.50 rad ted in the following anctions in the ameunt. w declaration of Taylor J. Turville are proper ELE. CONCLUSION for the foregoing reasons, Defendant tespect ully requests the Court grant its motion to compel the oral deposition of the REGIONAL PMX with regard te Plaintiff's billing records for accident related treatment and the requested documents sought pursuant to Skbpcena served on REGIONAL and for an award o sanctions in the amount of 5367.50 fer ite failure te comply with 4 lawful subpoena. ATED: July 30, 2026 POWERS MILLER SUPPORT OF MOTION [0 COMPELu 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pope v. Morgan Santa Clara County Superior Court No. 19CV349134 PROOF OF SERVICE I ama citizen of the United States, employed in the County of Placer, State of California. My business address is 3500 Douglas Boulevard, Suite 100, Roseville, California 95661. I am over the age of 18 years and not a party to the above-entitled action. On July 31, 2020, I caused the within MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL DEPOSITION OF PERSON MOST KNOWLEDGEABLE REGARDING BILLING AT REGIONAL MEDICAL CENTER AND COMPLIANCE WITH SUBPOENA the original of which was produced on recycled paper, to be served as follows: XX_ MAIL - I am readily familiar with Powers Miller’s practice for collection and processing of correspondence for mailing with the United States Postal Services. Pursuant to said practice, each document is placed in an envelope, the envelope is sealed, the appropriate postage is placed thereon and the sealed envelope is placed in the office mail receptacle. Each day’s mail is collected and deposited in a U.S. mailbox at Roseville, California at or before the close of each day’s business. (CCP Section 1013a(3) .) FACSIMILE - July 31, 2020 at _ a.m./p.m., by use of facsimile machine telephone number (916) 924-7980, I served a true copy of the aforementioned document(s) on the parties in said action by transmitting by facsimile machine to the numbers as set forth below. The facsimile machine I used complied with California Rules of Court, Rule 2003(3) and no error was reported by the machine. Pursuant to California Rules of Court, Rule 2008(e), I caused the machine to print a transmission records of the transmission, a copy of which is attached to this Declaration. XX_ PERSONAL SERVICE - Delivered by hand to the addressee addressed as set forth below. OVERNIGHT COURIER - By causing a true copy and/or original thereof to be personally delivered via the following overnight courier service. Louis S. Abronson Regional Medical Center Abronson Law Offices 225 N Jackson Ave 332 North 2nd Street San Jose, CA 95116 San Jose CA 95112 F: 408-395-1955 VIA PERSONAL SERVICE ONLY SENT VIA MAIL ONLY I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, and that this declaration was executed on July 31, 2020, at Roseville, California. f (JORDAN FISCHER