LaRumbe-Torres, Josiah vs. Kaweah Health Medical Center et al

Here, the motion is timely, as the deposition occurred May 12, 2026, this motion was filed June 18, 2026 and the parties appear to have sufficiently met and conferred. "Not less than five days prior to the hearing on this motion, the moving party shall lodge with the court a certified copy of any parts of the stenographic transcript of the deposition that are relevant to the motion." (Code Civ. Proc., Sec. 2025.480, subd. (h).) The declaration of counsel attaches relevant excerpts from the deposition.

"For discovery purposes, information is relevant if it 'might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement..."" (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal. App. 4th 1006, 1013.) Information, "unless privileged, is discoverable if it might reasonably lead to admissible evidence. These rules are applied liberally in favor of discovery, and (contrary to popular belief), fishing expeditions are permissible in some cases." (Gonzalez v. Superior Court (1995) 33 Cal. App. 4th 1539, 1546.)

A deponent may be instructed not to answer to protect privileged or private information. (Code Civil Procedure, Sec. 2025.460(a); Stewart, supra, 87 Cal.App.4th at 1015.) Further, counsel must object to defects in the form that might be cured if promptly raised or the defect is waived (Code Civil Procedure, Sec. 2025.460(b)). However, defects in the form of a question asked are not grounds for instructing a witness not to answer and the witness must answer over the objections to form, unless the deponent's counsel suspends the deposition to seek a protective order. (Stewart, supra, 87 Cal.App.4th at 1015.)

Deponents may not be "prevented by counsel from answering a question unless it pertains to privileged matters or deposing counsel's conduct has reached a stage where suspension is warranted." (Id.) "The fact that suspension is available only where an interrogation into improper matters reveals an underlying purpose to harass, annoy etc. indicates that witnesses are expected to endure an occasional irrelevant question without disrupting the deposition process." (Id.)

Here, the Court notes each instruction not to answer does not appear connected to a privilege, but included objections as to the form of the question. As noted above, however, this objection does not permit the instruction not to answer.

Additionally, Plaintiff notes that, under Code of Civil Procedure section 2023.010, the following are examples of missuses of the discovery process: (a)?Persisting, over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery. (b)?Using a discovery method in a manner that does not comply with its specified procedures. (c)?Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. (d)?Failing to respond or to submit to an authorized method of discovery. (e)?Making, without substantial justification, an unmeritorious objection to discovery. (f)?Making an evasive response to discovery.

Plaintiff argues that Defendant Dr. Barrera's counsel coached Dr. Barrera by reframing questions, answering questions, making physical contact with the witness, engaged in numerous speaking objections and interrupted the deposition questions. The Court's review of the separate statement and transcript confirm to the Court that Dr. Barrera's counsel engaged in this conduct, which resulted in a number of questions going unanswered by the deponent. Further, the areas of deposition questioning, as to the term "safety culture," training, hospital policies, physician obligations, knowledge, training and duties, patient safety and medical risks appear within the bounds of discovery applicable to this case.

To the extent plaintiff intends to use this testimony to explore Reptile Theories at trial, the court notes it has generally and routinely granted in limine motions that exclude this type of evidence or other Golden Rule evidence at trial. As counsel is well aware, discoverable and admissible are not always synonymous. Trial evidence will be focused on the relevant standard of care. The Court's review of the portions of the deposition reveal no purpose to harass or annoy, but counsel for plaintiff should understand that much of the testimony he tried to elicit at the deposition about culture will likely be inadmissible at trial if the intent is to pursue the theories discussed above. (Stewart, supra, 87 Cal. App. 4 th at 1015.)

Counsel for Defendant should be cognizant of his tenancy to jump in mid-question with objections or contentions that prevent the deponent from providing a coherent answer. The Court rejects the argument that the declaration of Mungcal lacks personal knowledge of the events of the deposition and therefore should be disregarded. The Court notes no objection to the excerpts of the deposition transcript provided and the Court's review of the declaration of Mungcal and attachments reveals no issue as contents thereof. The Court, therefore, grants the motion and will order the further deposition of Defendant Dr. Barrera.

Deposition Referee Plaintiff indicates, and Defendant notes, the parties have agreed the appointment of a deposition referee is necessary and seeks appointment thereof under Code of Civil Procedure section 638, which states: A referee may be appointed upon the agreement of the parties filed with the clerk, or judge, or entered in the minutes, or upon the motion of a party to a written contract or lease that provides that any controversy arising therefrom shall be heard by a referee if the court finds a reference agreement exists between the parties: (a) To hear and determine any or all of the issues in an action or proceeding, whether of fact or of law, and to report a statement of decision. (b) To ascertain a fact necessary to enable the court to determine an action or proceeding...

Plaintiff proposes the following scope of the proposed referee: As to the deposition of Dr. Barrera and witnesses whose depositions are being defended by his Counsel, and all other witnesses as designated by any party, the scope of authority for the appointed deposition referee shall be as follows: The scope of the referee's appointment shall be limited to enforcing compliance with the Code of Civil Procedure governing discovery depositions and enforcing orderly deposition protocol. The Referee will be present at designated depositions for purposes of real time enforcement which shall include the power to 1.) require witnesses to provide responsive answers to all questions which do not implicate privilege, regardless of whether the witnesses have been instructed not to answer; and 2.) prohibit the following: a.) improperly instructing witnesses not to answer, b.) witness coaching (or other direct or indirect communication with the witness during questioning), c.) obstructing the deposition, or d.) other improper conduct.

The Referee shall not conduct any sidebars or accept argument during the depositions. The parties may submit arguments, briefings, and submissions in advance of the depositions concerning matters within the scope of the referee's authority. The Referee shall not accept any argument or decide the admissibility of any deposition testimony, which shall be reserved for the trial judge to rule upon in limine or at trial. The parties retain the right to seek relief from the trial court and appeal the referee's decisions to the trial court.

Defendant seeks to limit the use of the referee to Dr. Barrera's deposition and seeks to permit argument and sidebar during the deposition. The Court is inclined to appoint the referee for the continued deposition of Dr. Barrera only. Despite the contentious tone of the deposition the parties agreed that a referee would be useful at the continued deposition of Dr. Barrera and can likely agree on the future use of a referee, if necessary. The Court will not limit or instruct the referee as suggested by plaintiff other to instruct him to perform his duties in accordance with Code of Civil Procedure section 638.

Additional Time Code of Civil Procedure section 2025.290 states, in part: (a) Except as provided in subdivision (b), or by any court order, including a case management order, a deposition examination of the witness by all counsel, other than the witness' counsel of record, shall be limited to seven hours of total testimony. The court shall allow additional time, beyond any limits imposed by this section, if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.

Here, the Court agrees that the conduct at the deposition has impeded or delayed the examination and therefore will grant the request to extend the deposition time an additional one hour beyond the seven-hour limit, for a maximum of eight hours of deposition of Dr. Barrera.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings. Re: Lobel Financial Corp., a California Corporation vs. Sandoval, Valerie Marie