Judge: Anne Hwang, Case: 22STCV21373, Date: 2024-07-02 Tentative Ruling

Case Number: 22STCV21373    Hearing Date: July 2, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

On June 30, 2022, Plaintiff Daniel Mariscal (“Plaintiff”) filed a complaint for injuries related to a motor vehicle accident.

On February 8, 2024, Defendants Christian Fernando Alanis, Salvador Alanis Zambrano, and Catalina Pizano G. De Alanis (“Defendants”) issued subpoenas to Kaiser Permanente Medical Center (“Kaiser”), seeking Plaintiff’s medical and billing records. (Renaud Decl. ¶ 4, Exh. B.) The subpoenas limit the records to the following body parts: “Neck, Midback, Lower Back, left and right lower extremities, feet, toes, left and right buttocks, right and left ankles, bilateral knees.”

On February 29, 2024, Kaiser stated it was unable to produce the records based on body parts, medical conditions, or symptoms” since it would require a review of the records by medical experts. Instead, Kaiser offered that the records could be sorted by provider name and department types. (Renaud Decl. ¶ 9, Exh. D.)

On March 27, 2024, Defendants filed the instant motion to compel compliance with the subpoenas. Non-party Kaiser opposes and Defendants reply.

LEGAL STANDARD

A party seeking discovery from a person who is not a party to the action may obtain discovery by oral deposition, written deposition, or deposition subpoena for production of business records.¿ (Code Civ. Proc., § 2020.010.)¿ A deposition subpoena may command either: (1) only the attendance and testimony of the deponent, (2) only the production of business records for copying, or (3) the attendance and testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things.¿ (Code Civ. Proc., § 2020.020.)¿  

A service of a deposition subpoena shall be affected a sufficient time in advance of the deposition to provide the deponent a reasonable opportunity to locate and produce any designated documents and, where personal attendance is commanded, a reasonable time to travel to the place of deposition.¿ (Code Civ. Proc., § 2020.220, subd. (a).)¿ Personal service of any deposition subpoena is effective to require a deponent who is a resident of California to: personally appear and testify, if the subpoena so specifies; to produce any specified documents; and to appear at a court session if the subpoena so specifies.¿ (Code Civ. Proc., § 2020.220, subd. (c).)¿ A deponent who disobeys a deposition subpoena may be punished for contempt without the necessity of a prior order of the court directing compliance by the witness.¿ (Code Civ. Proc., § 2020.240.)¿A motion to compel compliance with a deposition subpoena must be made within 60 days after completion of the deposition record, the date objections are served, or the date specified for production, and be accompanied by a meet and confer declaration. (Code Civ. Proc., §2025.480, subd., (b); Board of Registered Nursing v. Sup.Ct. (Johnson & Johnson) (2021) 59 CA5th 1011, 1032-1033.) 

California Code of Civil Procedure section 1987.1, subdivision (a) states, “[i]f a subpoena requires the attendance of a witness or the production of books, documents, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” 

California Code of Civil Procedure section 1987.2, subdivision (a) states, in relevant part, “. . . in making an order pursuant to motion made . . . under Section 1987.1, the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification . . . .” 

MEET AND CONFER

            The Declaration of Lisa L. Renaud, Defendants’ counsel, does not state facts that a meet and confer took place.  

DISCUSSION

As an initial matter, this motion is timely since it was made within 60 days after Kaiser objected to the subpoena on February 29, 2024.

In this situation, Defendants contend that the subpoenas must be limited by body part to prevent them from being overbroad and subject to Plaintiff’s objection. However, Kaiser contends it is incapable of producing the documents by body part.

In opposition, Kaiser asserts it can sort by Date Range(s); Department Type(s) such as orthopedics or neurology; Department Type(s) with Dates- for example neurology from 2013-Present; Medical Provider by Name(s); Medical Provider with Dates. (Calhoun Decl. ¶ 6.) Alternatively, it can produce the entire set of records to the Court and to Plaintiff’s attorney who can decide what to release to the opposing attorney with a privilege log. (Id. ¶ 7.)

In reply, Defendants contend they have since conferred with Kaiser on how to procure the records. Defendants assert that each method suggested by Kaiser has been rejected by at least one of the parties. (Reply, Renaud Decl. ¶ 8.) However, Defendants assert the parties have agreed on the appointment of Dan Quinn, Esq. as a Discovery Referee to review the over 320 pages of medical records and bills. (Renaud Decl. ¶ 9.) However, Plaintiff and Kaiser have not agreed to share in Mr. Quinn’s costs: he charges $600 per hour, a $3,000 retainer, and estimates it will take him 6-10 hours. Defendants ask the Court to order that the costs be shared equally by Defendants, Plaintiff, and Kaiser.

However, absent a written agreement and proposed order, see California Rule of Court 3.901, Defendant has not shown that appointment is necessary. (See Hood v. Superior Court (1999) 72 Cal.App.4th 446, 449.) Rather, Kaiser has proposed a number of reasonable solutions. Plaintiff has not filed an opposition and has not set forth any privacy objection. Moreover, the number of at issue body parts is expansive. Accordingly, the Court orders Kaiser to produce all records relating to Plaintiff to counsel for both parties, limited by date range. To the extent Plaintiff objects to certain records, the parties are to meet and confer and the non-responsive records shall be delivered to counsel for Plaintiff or destroyed. Therefore, the motion to compel compliance is granted in part.

The Court finds this motion was opposed in good faith and declines to award sanctions.

CONCLUSION AND ORDER

Therefore, the Court GRANTS in part the motion to compel compliance with the deposition subpoena. Kaiser Foundation Hospitals/Southern California Permanente Medical Group shall produce all records relating to Plaintiff to counsel for both parties.

            Defendants shall give notice of the Court’s order and file a proof of service of such.