Judge: Audra Mori, Case: 21STCV35196, Date: 2022-12-06 Tentative Ruling

Case Number: 21STCV35196    Hearing Date: December 6, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Juliet Ansumana (“Plaintiff”) filed this action against Defendant Rochelle Sterling (“Defendant”), as Trustee of the Sterling Family Trust and dba Beverly Hills Properties, for injuries Plaintiff allegedly sustained as a result of an incident that occurred in Defendant’s elevator located at 120 South Reno Street in Los Angeles, California, on December 17, 2019. 

At this time, Defendant moves for an order requiring Plaintiff to execute three authorizations required for the release of third-party records from Medicare, Medicaid and the California Employment Development Department (“EDD”).  The motion is unopposed, and November 22, 2022, Defendant’s counsel filed a declaration providing that Plaintiff had not served any opposition to the motion. 

2. Motion to Compel Record Authorizations

Defendant asserts that the authorizations pertain to relevant medical and disability/unemployment benefit records from third party witnesses.  Defendant contends that these entities will not accept a subpoena as grounds for release of the records, but Plaintiff has refused to execute the authorizations Defendant provided to Plaintiff.  Defendant argues that the records are directly relevant to Plaintiff’s claims, so Plaintiff should be ordered to provide her signature for the release authorization forms to permit Defendant to obtain the discovery. 

However, in moving for an order compelling Plaintiff to sign an authorization for the release of the relevant medical records, Defendant does not cite any authority that gives the Court express authority under the Discovery Act to compel a party to sign an authorization for release of records.  Case law on this particular issue is limited and that which does exist is not clear.  For example, in Miranda v. 21st Century Ins. Co. (2004) 117 Cal.App.4th 913, the appellate court upheld the dismissal of an action where the plaintiff failed to comply with the court's order to sign an authorization for release of records. (Id. at pp. 918-919.)  However, in a footnote, the court stated it was not clear why the defendant moved to compel an authorization rather than compel compliance with a subpoena.  (Id. at p. 918, fn. 2.) 

Defendant cites to CCP §§ 1985, 1987, 2019.030, and 2020 in arguing that Defendant has the right to obtain third-party records.  First, CCP § 2020 has been repealed.  Second CCP § 1985 states (emphasis added):

(a) The process by which the attendance of a witness is required is the subpoena. It is a writ or order directed to a person and requiring the person's attendance at a particular time and place to testify as a witness. It may also require a witness to bring any books, documents, electronically stored information, or other things under the witness's control which the witness is bound by law to produce in evidence. When a county recorder is using the microfilm system for recording, and a witness is subpoenaed to present a record, the witness shall be deemed to have complied with the subpoena if the witness produces a certified copy thereof.

(b) A copy of an affidavit shall be served with a subpoena duces tecum issued before trial, showing good cause for the production of the matters and things described in the subpoena, specifying the exact matters or things desired to be produced, setting forth in full detail the materiality thereof to the issues involved in the case, and stating that the witness has the desired matters or things in his or her possession or under his or her control.

(c) The clerk, or a judge, shall issue a subpoena or subpoena duces tecum signed and sealed but otherwise in blank to a party requesting it, who shall fill it in before service. An attorney at law who is the attorney of record in an action or proceeding, may sign and issue a subpoena to require attendance before the court in which the action or proceeding is pending or at the trial of an issue therein, or upon the taking of a deposition in an action or proceeding pending therein; the subpoena in such a case need not be sealed. An attorney at law who is the attorney of record in an action or proceeding, may sign and issue a subpoena duces tecum to require production of the matters or things described in the subpoena.

            CCP § 1987(a) provides:

Except as provided in Sections 68097.1 to 68097.8, inclusive, of the Government Code, the service of a subpoena is made by delivering a copy, or a ticket containing its substance, to the witness personally, giving or offering to the witness at the same time, if demanded by him or her, the fees to which he or she is entitled for travel to and from the place designated, and one day's attendance there. The service shall be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance. The service may be made by any person.

Nowhere does CCP § 1985 or § 1987 authorize the Court to compel a party to sign an authorization for release of records; rather, they identify a subpoena as the vehicle for compelling records, and subpoenas are routinely used to obtain this result.  CCP § 2019.030 deals not with the compelling of authorizations, but the Court’s ability to issue a protective order restricting the use of a statutorily recognized discovery method.  Furthermore, Defendant is not moving to compel compliance with a subpoena in this motion, nor does Defendant provide evidence of such a subpoena being properly served. 

It is well established that California courts lack the power to order civil discovery by a method that is not authorized in the Code of Civil Procedure.  (Haniff v. Superior Court (2017) 9 Cal.App.5th 191, 200.)  The request that a party sign a release for records is not a method expressly or impliedly included in the Civil Discovery Act.  (See, e.g. CCP § 2019.010.)  Moreover, Defendant has not made a showing that Defendant’s efforts to use normal discovery procedures to obtain the records have failed to yield the documents. 

            Based on the foregoing, Defendant’s motion to compel Plaintiff to sign authorizations for release of her records is denied.

            Because the motion is denied, the request for sanctions is also denied.   

Defendant is 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 6^th day of December 2022