Judge: Daniel M. Crowley, Case: 19STCV09817, Date: 2022-08-12 Tentative Ruling

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Case Number: 19STCV09817    Hearing Date: August 12, 2022    Dept: 28

Defendants Luis Quintero and Tom Gores’s Motion to Compel Third Party Barbara Foley, Ph.D. to Comply with Deposition Subpoena for Records

Having considered the moving papers, the Court rules as follows.

BACKGROUND

On March 21, 2019, Plaintiff Marilyn Silver Lerman (“Plaintiff”) filed this action against Defendants Luis Quintero (“Quintero”), Tom Gores (“Tom”) and Holly Gores (“Holly”) for motor vehicle negligence and general negligence.

On May 1, 2019, Quitero filed an answer.

On September 16, 2019, Tom filed an answer and a Cross-Complaint against Moes 1 to 25 for breach of written contract, express indemnity, total equitable indemnity, partial equitable indemnity, contribution and repayment, declaratory relief and negligence.

On June 10, 2022, Tom and Quintero (“Defendants”) filed a Motion to Compel Third Party Barbara Foley, Ph.D.’s Compliance with Business Records Subpoena to be heard on August 12, 2022.

Trial is currently set for December 19, 2022.

PARTY’S REQUESTS

Defendants request the Court order Third Party Barbara Foley, Ph.D. (“Foley”) to produce the subpoenaed records and pay $1,260.00 in sanctions to Defendants.

LEGAL STANDARD

If a deponent fails to answer any question or produce any document, the party seeking discovery may move the court for an order compelling that answer or production. CCP § 2025.480. A plaintiff may serve a deposition notice without leave of court on any date that is 20 days after the service of the summons on, or appearance by, any defendant. CCP § 2025.210. A deposition subpoena for only the production of records shall command compliance on a date no earlier than 20 days after issuance or 15 days after service, whichever date is later. CCP § 2020.410.

The Court may impose monetary sanctions against any party, person, or attorney engaging in the misuse of the discovery process. (CCP § 2023.030(a).)

DISCUSSION

Defendants provided proper notice and service of the motion on Foley.

Plaintiff indicated that she sought treatment from Dr. Barbara Foley as a result of the incident. Defendants served a subpoena on Foley on November 20, 2019, with a production date of December 6, 2019. Foley did not object to the production until March 10, 2020, citing that the records were confidential and privileged. Defendants provided Foley with authorization from Plaintiff herself indicating the requested records could be produced; Foley responded approximately 2 months later indicating that the records had been destroyed, despite Foley being mandated to keep Plaintiff’s records for 7 years following her treatment. Defendants attempted to meet and confer in July of 2021 but received no response.  As the records appear to be relevant to the treatment of Plaintiff’s injuries and Plaintiff has granted explicit permission, the Court grants the motion ordering compliance with the outfit.

Defendants request the Court impose sanctions on Foley totaling $1,260.00 for failure to comply with the subpoena and misuse of the discovery process. Given that Foley was required to hold onto records beyond the time Foley claimed the records were destroyed, the Court finds that Foley has misused the discovery process, either in destroying or refusing to produce the requested records. The request amount is based upon 4 hours of attorney’s work, at a rate of $175.00 per hour, one $60.00 filling fee, and the identified $500.00 fee for failing to comply with the subpoena. The Court finds this request reasonable and grants it in full.

CONCLUSION

Defendants Luis Quintero and Tom Gores’s Motion to Compel Third Party Barbara Foley, Ph.D. to Comply with Deposition Subpoena for Records is GRANTED. Foley is ordered to produce all responsive documents within 30 days of the hearing on the motion.

Defendants Luis Quintero and Tom Gores’s Request for Sanctions is GRANTED. Foley is ordered to pay Defendants sanctions totaling $1,260.00 within 30 days of the hearing on this motion.

Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.