Judge: Audra Mori, Case: 21STCV37439, Date: 2023-02-07 Tentative Ruling

Case Number: 21STCV37439    Hearing Date: February 7, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Plaintiff Flor Figueroa (“Plaintiff”) filed this action against Defendant LV 1101, LLC (“Defendant”) for damages relating to Plaintiff’s trip and fall on Defendant’s property. 

Defendant asserts that as a result of the incident, Plaintiff obtained medical care and treatment with L.A. Health Care Plan (“L.A. Health”).  Defendant provides it propounded a deposition subpoena for production of business records on L.A. Health to obtain Plaintiff’s medical records, (Mot. Exh. A), but L.A. Health has not complied.  Defendant asserts it has made several attempts to obtain the records but has not been successful. 

Defendant now moves to compel L.A. Health to comply with the subpoena.  The motion is unopposed. 

This matter was last set for hearing for November 16, 2022, where it was continued to February 7, 2023.  Defendant was ordered to timely and personally serve the moving papers on L.A. Health.  (Cal. Rules of Court, Rule 3.1346.)  On January 10, 2023, Defendant filed a declaration regarding service of the motion and notice of continuance on L.A. Health.  The declaration from defense counsel’s employee provides that defense counsel sent a request to their process server to personally serve the moving papers and notice on L.A. Health.  (Lovato Decl. ¶ 3.)  The process server attempted to personally serve the papers but was unable to do so, as there was a notice posted on the door stating that L.A. Health was accepting service through email.  (Id. at ¶ 4.)  Defense counsel’s employee attempted to call a number on the notice posted on the door multiple times on different days but was never able to speak to a live person.  (Id. at ¶¶ 6-7.)  Defendant provides a photo of the notice posted on L.A. Health’s door, which states, “Re: Notice re Personal Delivery of Legal Documents… If you wish to serve legal documents on [L.A. Health], we are temporarily accepting service of process by email. Please email your documents to GLS@lacare.org and we will respond acknowledging receipt of the documents.”  (Id. Exh. D.)  The notice further provides, “This process will be in effect until February 28, 2023 …”  (Id.)  The declaration shows that the motion and notice of continuance were served on the email address on L.A. Health’s notice on January 5 and 10, 2023.  Accordingly, Defendant has given proper notice of its motion to L.A. Health. 

The service of a deposition notice, pursuant to CCP § 2025.240, is effective to require any party deponent to attend, testify, and produce materials for inspection at a deposition.  (CCP § 2025.280(a).)  To require the attendance and testimony of a non-party deponent, as well as his or her production of any document or tangible thing for inspection and copying, the party seeking discovery must serve on that deponent a deposition subpoena, pursuant CCP § 2020.010, et seq.  (CCP §§ 2020.010(b), 2025.280(b); See also Sears, Roebuck & Co. v. National Union Fire Insurance Company of Pittsburgh (2005) 131 Cal.App.4th 1342, 1350 [discovery from nonparties is governed by CCP §§ 2020.010, et seq., and is primarily carried out by way of subpoena].) 

If a deponent fails to answer any question or to produce any document, the party seeking discovery may move the court for an order compelling that answer or production.  (CCP § 2025.480(a).)  If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition.  (CCP § 2025.480(i).) 

In this case, Defendant argues that the business records subpoenaed from L.A. Health concerning Plaintiff’s care and treatment relating to the trip and fall incident are relevant to Plaintiff’s claims.  However, L.A. Health has not produced the requested medical records or responded to the attempts to obtain the records from L.A. Health’s custodian of records.  The motion to compel compliance with the relevant subpoena is unopposed.  Furthermore, there is no evidence that any objections were filed to the subpoena, nor was a motion to quash filed. 

The motion is therefore granted.  L.A. Health is ordered to produce the records requested in the subpoena attached to the motion within twenty (20) days.  (Mot. Exh. A.)

Additionally, Defendant requests monetary sanctions of $735 and a forfeiture fee of $500 under CCP § 1992 against L.A. Health.

As to the request for sanctions, Defendant cites to CCP §§ 2023.010 and 2023.030 in arguing L.A. Health should be sanctioned for its misuse of the discovery process.  However, these sections do not independently authorize the Court to impose monetary sanctions for misuse of discovery.  (City of Los Angeles v. PricewaterhouseCoopers, LLC (2022) 84 Cal.App.5th 466, 504 [“award of monetary sanctions … based solely on [CCP §§] 2023.010 and 2023.030 without regard to any other provision of the Discovery Act, constituted an abuse of discretion because it was outside the bounds of the court's statutory authority.”].)  Defendant does not otherwise identify any other sections Defendant is seeking sanctions under.   Therefore, Defendant’s request for monetary sanctions of $735 is denied.

As to the $500 forfeiture, the expenses allowed by CCP § 1992 must be sought in a civil suit separate from the pending action.  (See New York Times Co. v. Superior Court (1990) 51 Cal. 3d 453, 464.)  Thus, the request for the $500 forfeiture is denied.[1] 

Moving 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 7^th day of February 2023