Judge: Daniel M. Crowley, Case: 21STCV22564, Date: 2022-10-14 Tentative Ruling

Case Number: 21STCV22564    Hearing Date: October 14, 2022    Dept: 28

Defendants Isabel Orozco, Ines M. Cuza and Fermin Cuza’s Motion to Compel Deposition of Non-Party Precise Imagining

Having considered the moving, opposing and reply papers, the Court rules as follows.

BACKGROUND

On June 16, 2021, Plaintiffs Dahlia Naomi Felder (“Felder”) and Arnoldo Andres Alvarez (“Alvarez”) filed this action against Defendants Isabel Orozco (“Orozco”), Ines M. Cuza (“Ines”), Fermin Cuza (“Fermin”), Shahab Rabin Hendizadeh (“Hendizadeh”) and Platinum European Motorcars, Inc. (“Platinum”) for motor vehicle negligence and general negligence.

On September 10, 2021, Fermin, Ines and Orozco filed an answer. On September 13, 2021, they filed an amended answer. On November 16, 2021, Platinum filed an answer.

On October 1, 2021, Hendizadeh filed an answer and a Cross-Complaint against Cross-Defendants Fermin, Ines and Isabel for indemnity, declaratory relief and apportionment of fault. Cross-Defendants filed an answer on October 6, 2021.

On June 10, 2022, Ines, Orozoco Defendant (collectively known as “Moving Defendants”) filed a Motion to Compel the Deposition of Non-Party Precise Imagining to be heard on September 9, 2022.  On August 25, 2022, Plaintiff filed an opposition. On August 30, 2022, Moving Defendants filed a reply. The Court continued the hearing to October 14, 2022, requesting additional briefs. On September 22, 2022, Non-Party Premise MRI Corp. (“Deponent”) filed an opposition. On October 6, 2022, Moving Defendants submitted a reply.

Trial is currently scheduled for June 16, 2023.

PARTY’S REQUESTS

Moving Defendants request that the Court order Deponent to produce a PMQ for an oral deposition on October 26, 2022, at 1:30 p.m. at 655 North Central Avenue, 12^th Floor, Glendale, California 91203. They also request the Court award monetary sanctions on Deponent and their counsel totaling $2,772.09.

Plaintiff requests the Court deny the motion and impose $3,200.00 in sanctions on Moving Defendants.

Deponent requests the Court deny the motion.

LEGAL STANDARD

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. (CCP § 2020.010.) A deposition subpoena may command the attendance and testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things. (CCP § 2020.020.) The Court may order a third party to comply with a deposition subpoena upon any terms or condition as the court shall declare. (CCP § 1987.1.)

DISCUSSION

Plaintiff alleges that after the subject incident, Plaintiff received radiological scans from Deponent; part of Plaintiff’s special damages include medical expenses allegedly billed by Deponent.

On April 8, 2022, Moving Defendants served a deposition subpoena on Deponent for April 21, 2022, with the intent of obtaining information about Deponent’s billing procedures. On April 18, 2022, Deponent served an objection to the deposition and production of documents. They later stated that they would not permit the deposition to go forward on all subjects described, nor would they provide all the documents called for by subpoena. Deponent did not appear for the deposition and did not produce the records requested in the subpoena.

The subpoena requested the production of four categories of documents: the complete file of Plaintiff, the complete billing records of Plaintiff, the contract between Deponent and Medlegal Solutions, Inc, and the sale and purchase of liens. Regarding the sale and purchase of liens, and all documents regarding the sale and purchase of liens between Deponent and Medlegal Solutions that pertain to Plaintiff’s treatment. Moving Defendants assert that they are entitled to the last two because Medlegal is involved in the billing for the services provided to Plaintiff. Moving Defendants cite to Moore v. Mercer (2016) 4 Cal.App.5th 424 in support of their assertion.

The Court finds Moving Defendants’ argument unconvincing. First, the Court notes, that the Moore Court clearly stated that “the probative value of such evidence in determining the reasonable value of the medical services provided an injured plaintiff is minimal.” (Id. at 443.) It is within the discretion of the Court to determine if the minimal probative value outweighs the other potential issues that arise out of this line of discovery. Other cases, such as Katiuzchinsky v. Perry (2007) 152 Cal. App.4^th 1288, 1297, support a finding that this is wholesale irrelevant to Moving Defendants: “a subsequent assignment of the bill to a third party cannot result in a decrease in the value of services that have already been rendered.” In order for the evidence to be of any potential use at trial, Moving Defendants will have to account for every potential reason why the amount collect differs from the amount billed, which are numerous and usually unrelated to the actual value of the services. As such, the Court denies the motion as to those documents. Should Moving Defendants take issue with the amount billed, that issue would be best addressed by an expert.

The Court also does not see the need to depose Deponent’s PMK to discuss billing procedures, based upon the above reasoning. Deponent has already agreed to produce the relevant medical and billing records.

Deponent cites to Allen v. Superior Court (1984) 51 Cal.App.3d 447, in which the appellate court reversed the trial court’s ruling, finding that the trial court abused its discretion by permitting disclosure of information invading nonparty’s privacy interests when there were less intrusive means to obtain the relevant information. Allen also specifically held that the moving party did not need to learn the detail financial information of a nonparty as it was unnecessary for moving party’s purposes. This is analogous to this case. Here, Plaintiff served a subpoena on a non-party deponent in order to ascertain the reasonable value of the medical services. There are other means to establish the reasonable value of medical services other than intrusive discovery of a non-party, such as expert medical testimony or data concerning healthcare charges. Given that Deponent’s contract with MedLegal Solutions, Inc. is not enforced on a case-by-case basism but rather apply to all accounts purchased by MedLegal, this line of inquiry would far exceed the bounds of this case. Other methods of discovery would not only be far less intrusive, but also far more tailored.

Moving Defendants argue that Allen is based on an individual constitutional right to privacy held by experts or their patients, and that the same right to privacy does not extend to corporations. The Court is unconvinced by this argument; Deponent represented that Deponent and MedLegal’s contractual agreement covers all liens between the two parties. Meaning that the information contained in the contract may also have private information regarding patients, doctors, and other individuals.

Moving Defendants also argue that Allen and Stony Brook both allowed some level of inquiry. In Allen, the court held the medical expert could be asked questions regarding the percentage of his practice dedicated to defense work and the amount derived from the work. In Stony Brook, the expert was required to provide numerical estimates of work for litigation and income generated. Moving Defendants argue this means that the Court should order Deponent be deposed and give oral testimony about the agreement, including its financial terms. The Court disagrees—in both of these examples, the questions to be asked went to establishing other issues, such as bias or previous work experience of the expert. These were questions that could not be answered except for by experts that were directly relevant to the credibility of said experts. An agreement for loan services is not the only way in which Moving Defendants can argue the merit of the damages asserted. Deponent has already agreed to produce all relevant medical and billing records, which can be submitted to an expert and compared against the bills produced by Plaintiff.

Moving Defendants argue that Moore found that there are three potential ways in which the requested agreement could be relevant: 1) the agreement could reveal what the doctor believed was the reasonable value of his services, 2) the expert could base an opinion on the reasonable value accepted as full payment, and 3) the agreement may have information or lead to the discovery of admissible evidence. Moore supra at 443. Moving Defendants argue that it is also essential to ascertain whether Plaintiff actually incurred a financial obligation to a medical provider, which is necessary to establish whether Plaintiff is entitled to special damages, as Moving Defendants claim Plaintiff would not be entitled to special damages resulting from a MedLegal lien. Moving Defendants specifically note that the billing statements in the record were mailed to MedLegal, not Plaintiff; the lien signed at the commencement of treatment is to MedLegal, making it unclear if Deponent ever billed plaintiff prior to transferring the debt.

The Court does not find that any of these potentially relevant pieces of information must be obtained via the subject subpoena. Moving Defendants could identify the reasonable value by deposing Plaintiff’s treating physician, obtaining the physician’s medical or billing records, or obtaining the opinion of an expert. Moving Defendants’ argument that they are unsure whether Plaintiff was ever billed by Deponent can easily be solved by serving discovery requests on Plaintiff. If Plaintiff states she was billed but can provide no proof and states that Moving Defendants must request the information from Deponent, then the Court would find good cause as there would be no other less intrusive method. Moving Defendants have not shown that there are no other less intrusive methods. As Moore held, the decision to allow this type of discovery is up to the Court—the Court must balance a non-party's right to privacy with litigants right to discovery. Here, the Court does not find that the circumstances warrant violating Deponent’s privacy rights, as there are other, less intrusive and more tailored means to obtain this information.

Sanctions

The Court find that this area of the law is evolving, and declines to issue sanctions.

CONCLUSION

Defendants Isabel Orozco, Ines M. Cuza and Fermin Cuza’s Motion to Compel Deposition of Non-Party Precise Imagining is GRANTED, as to the request for medical and billing records.

Defendants Isabel Orozco, Ines M. Cuza and Fermin Cuza’s Motion to Compel Deposition of Non-Party Precise Imagining is DENIED, as to the oral deposition of the Deponent’s PMK and the request for records or documents relating to Deponent’s relationship with Medlegal.

Plaintiffs’ Request for Sanctions is DENIED.

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.