Judge: Craig Griffin, Case: "Irvani v. Conway, et al.", Date: 2023-07-31 Tentative Ruling

The motion of Non-party TriWest Healthcare Alliance Corp. (“TriWest”) to quash the Deposition Subpoena for Personal Appearance and Production of Documents (the “Subpoena”) served by Plaintiff Sepideh Irvani (“Plaintiff”) is GRANTED.

TriWest’s argument that the current subpoena is an improper attempt to circumvent the 60-day deadline to file a motion to compel set forth in Code Civ. Proc., § 2025.480(b) is well-taken.  (See Professional Career Colleges v. Sup. Ct. (1989) 207 Cal.App.3d 490, 493.)  On May 8, 2023, the Court denied Plaintiff’s motion to compel TriWest to produce documents in response to the original subpoena on the ground that the motion was filed outside the mandatory 60-day deadline for filing said motion.  (See ROA 208; C.C.P. §2025.480(b); Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 127; Weinstein v. Blumberg (2018) 25 Cal.App.5th 316, 321.)

TriWest is correct that the document requests in the third subpoena call for the same information that was sought by the original subpoena.  Although there are some differences between the requests in the original and third subpoenas, it is evident that the document requests in the original subpoena would necessarily elicit the information requested in the third subpoena, specifically, the patient referral emails that Plaintiff seeks.  (Compare Sonnenberg Decl., Ex. A to Sonnenberg Decl., Ex. J.)  In addition, the topics of testimony in the third subpoena are “any facts relating to” each of the document requests.  Thus, the topics of testimony would also necessarily elicit the information sought by the original subpoena, i.e., patient referral information.

Plaintiff contends the third subpoena is not barred by Professional Career Colleges because the third subpoena seeks attendance at deposition and production of documents and is thus a different method of discovery than the original subpoena which sought only business records.  Plaintiff cites Carter v. Superior Court (1990) 218 Cal.App.3d 994, in which the court of appeal held that a waiver of the right to compel further response to inspection demand by a party who has missed the deadline provided by statute, does not prescribe a waiver of the party's right to use other discovery methods for obtaining the same documents or information.

Carter is distinguishable because it involved discovery between parties and attempted discovery under two separately authorized procedures under separate code sections (inspection demands and depositions) directed to parties.  Here, by contrast, the discovery is directed to a nonparty and there is only one procedure by which a nonparty is required to provide discovery, i.e., a deposition subpoena.  (Code Civ. Proc., § 2020.010(b) [“[T]he process by which a nonparty is required to provide discovery is a deposition subpoena.”]; see also, Board of Registered Nursing v. Superior Court of Orange County (2021) 59 Cal.App.5th 1011, 1033 [“ ‘While all discovery devices are available against a party, only deposition subpoenas can be directed to a nonparty....”].)

As the Court of Appeal in Board of Registered Nursing explained:

The discovery methods available against nonparties are more limited, and their procedures more streamlined. “ ‘While all discovery devices are available against a party, only deposition subpoenas can be directed to a nonparty.... [¶] The distinction between parties and nonparties reflects the notion that, by engaging in litigation, the parties should be subject to the full panoply of discovery devices, while nonparty witnesses should be somewhat protected from the burdensome demands of litigation.’ ” (Monarch Healthcare v. Superior Court (2000) 78 Cal.App.4th 1282, 1290, 93 Cal.Rptr.2d 619.)

The nonparty discovery statutes establish a one-step process for a nonparty responding to a business records subpoena. [¶] This one-step process minimizes the burden on the nonparty. It may comply (or not) with the subpoena, and it can be confident that its obligations under the subpoena will be swiftly addressed and adjudicated. The one-step process also reflects the reality that the discovery demanded from a nonparty will generally be more limited, and consequently less subject to lengthy dispute, than discovery demanded from a party.

(Board of Registered Nursing, supra, 59 Cal.App.5th at 1033.)

Just as the Court of Appeal determined in Board of Registered Nursing, here Plaintiff’s position is contrary to the language and intent of the statutory scheme governing nonparty discovery.  Because Plaintiff has already issued a deposition subpoena to TriWest seeking patient referral information, and failed to timely move to compel responses, the Court finds Plaintiff is barred from seeking the same information via the third subpoena.

The Court also finds TriWest has demonstrated that providing the information would be unduly burdensome on TriWest and that the burden on TriWest outweighs the likely benefit of production.  (Clement Decl., ¶¶ 4-5, 7-13, 20; Sonnenberg Decl., ¶ 10, Ex. K; see also, Code Civ. Proc., § 2020.220.)  Plaintiff also failed to show that she was diligent in seeking the information from Defendants.   “As between parties to litigation and nonparties, the burden of discovery should be placed on the latter only if the former do not possess the material sought to be discovered.”  (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 225.)

Accordingly, the motion is GRANTED.

The Court imposes a reasonable monetary sanction against Plaintiff in the amount of $5,250, payable to TriWest, through its counsel of record, within 30 days of the date of this ruling.  (C.C.P. § 1987.2(a).)

Counsel for TriWest is to give notice.