Judge: Audra Mori, Case: 19STCV17123, Date: 2023-01-13 Tentative Ruling

Case Number: 19STCV17123    Hearing Date: January 13, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1.     Background

The present action arises from an automobile collision, which occurred on May 19, 2017.  On said date, Karuna I. Tanahashi (“Plaintiff”) was driving her motor vehicle near the intersection of North Hill Avenue and Maple Street in Pasadena, California, when a separate motor vehicle driven and/or owned by Diana G. Toumah and Dalal Toumah (collectively, “Defendants”) collided with Plaintiff’s vehicle.  Plaintiff alleges she suffered personal injuries as a result of the subject automobile collision.

On May 16, 2019, Plaintiff commenced the instant action by filing a Complaint against Defendants.  Plaintiff’s Complaint alleges the following causes of action: (1) Motor Vehicle; and (2) General Negligence.  Subsequently, on May 28, 2021, Defendants filed an Answer.

Defendants, now, move for an Order compelling Foojan Zeine, PSY.D., MFT (hereinafter “Psychotherapist Zeine”), the psychotherapist visited by Plaintiff following the subject automobile collision, to produce Plaintiff’s psychotherapy medical records, in compliance with the subpoena for production of business records served upon Psychotherapist Zeine on June 16, 2022.  (Edgerton Decl., ¶ 6, Ex. B.)  There has been no opposition filed by Plaintiff, or otherwise.  The Proof of Service indicates that the Motion was served on Plaintiff’s counsel.  The Court cannot locate a Proof of Service on Psychotherapist Zeine.

2. Motion to Compel Compliance with Business Records Subpoena

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: (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 effected 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 “written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail¿or electronic service¿at an address¿or electronic service address¿specified on the deposition record.”¿ (Cal. Rules of Court, Rule 3.1346.)

            As noted previously, Defendants presently move for an Order compelling Psychotherapist Zeine to produce Plaintiff’s psychotherapy medical records, in compliance with the deposition subpoena for the production of business records served upon Psychotherapist Zeine on June 16, 2022.  (Edgerton Decl., ¶ 6, Ex. B.)  The Court preliminarily observes, pursuant to Plaintiff’s responses to Defendants’ Form Interrogatories, Plaintiff alleges she suffered “post traumatic anxiety” as a result of the subject automobile collision, and, shortly thereafter, sought treatment for the aforementioned injury by visiting the office of Psychotherapist Zeine.  (Id., ¶ 5, Ex. A [Response to Form Interrogatory Nos. 6.2 and 6.4].)  The Court additionally observes Defendants served upon Psychotherapist Zeine a deposition subpoena for the production of business records, which requested Psychotherapist Zeine produce Plaintiff’s psychotherapy medical records for copying.  (Id., Ex. B.)  Plaintiff’s psychotherapy medical records have been requested by Plaintiff in order to allow Plaintiff the opportunity to assess and analyze the extent of Plaintiff’s alleged injury.  (Id., ¶ 13.)  The Court ascertains, following a review of the Declaration of Defendants’ counsel of record, Psychotherapist Zeine has refused to produce the business records requested by the aforementioned deposition subpoena.  (Id., ¶ 11.)

            However, an Order compelling Psychotherapist Zeine’s compliance with the above-referenced deposition subpoena may not be awarded at this juncture due to a dispositive procedural error associated with Defendants’ present Motion.  Succinctly, Defendants have failed to serve the Motion upon Psychotherapist Zeine, as required by California Rules of Court, Rule 3.1346.  (Cal. Rules of Court, Rule 3.1346.)  The Proof of Service attached to Defendants’ Motion provides that the present Motion was served upon Plaintiff’s counsel of record only, and was not served upon the nonparty deponent, Psychotherapist Zeine.  (Mot., at pp. 44-46 [Proof of Service].) 

            Based on the foregoing procedural error, Defendants’ Motion For Order Compelling Foojan Zeine, PSY.D., MFT, To Comply With Deposition Subpoena To Produce Business Records is DENIED, without prejudice.

Moving Defendants are ordered to give notice.

PLEASE TAKE NOTICE:

·       Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.

·       If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting. 

·       Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue. 

·       If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.

Dated this 13^th day of January, 2023