Judge: David B. Gelfound, Case: 23CHCV01436, Date: 2025-03-07 Tentative Ruling

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Case Number: 23CHCV01436    Hearing Date: March 7, 2025    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION TO COMPEL FURTHER DEPOSITION ANSWERS AND RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS; REQUEST FOR SANCTIONS

Motion filed: 1/6/25

MOVING PARTY: Defendant Carlo Safarian

RESPONDING PARTY: Non-party DOCS Surgery Center

NOTICE: OK.¿¿¿ 

RELIEF REQUESTED: An order compelling Non-party DOCS Surgery Center to provide further answers to 12 Deposition questions, and further responses to Defendant Carlo Safarian’s Request for Production of Documents Nos. 6-7, 9-13, 15-18, and 21-23, and imposing monetary sanctions in the amount of $1,210.00. Additionally, Non-party DOCS Surgery Center seeks monetary sanctions of $1,520.00 against Defendant Carlo Safarian and his counsel.

TENTATIVE RULING: The motion is GRANTED IN PART. The request for monetary sanctions is DENIED.

BACKGROUND

This action arises from a motor vehicle accident that occurred on May 9, 2022.

On December 19, 2022, Plaintiff Tadhe Hovsepian (“Plaintiff” or “Hovsepian”) filed a Complaint against Defendant Carlo Safarian (“Defendant” or “Safarian”), alleging a sole cause of action for Motor Vehicle negligence. Subsequently, Safarian filed an Answer on January 24, 2023.

On January 6, 2025, Safarian filed the instant Motion to Compel Further Deposition Answers and Production of Documents (the “Motion”) as to non-party DOCS Surgery Center (“DSC”). Subsequently, DSC filed its Opposition on February 24, 2025, and Safarian submitted a Reply on February 28, 2025.

ANALYSIS

Code of Civil Procedure section 2025.480, subdivision (a), provides in part that: “If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.”

A.    Procedural Requirements

1.      Timeliness

“The motion shall be made no later than 60 days after the completion of the record of the deposition.” (Code Civ. Proc., § 2025.480, subd. (b).)

Here, the court reporter certified the transcript on November 7, 2024. (Mendoza Decl. Ex. “E.”) The parties further agreed to extend Defendant Safarian’s motion deadline to January 20, 2025. (Id. Ex. “G.”)

The Motion was served and filed on January 6, 2025, prior to the established deadline.

Accordingly, the Motion is timely.

2.      Meet and Confer

“The motion ... shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2025.480, subd. (b).)

“A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., § 2016.040.)

The Court finds that Safarian has sufficiently satisfied the meet and confer requirements. (Mendoza Decl. Ex. “I.”)

3.      Separate Statement

A motion to compel further responses to a demand for production must be accompanied by a separate statement. (Cal. Rules of Court, rule 3.1345(a)(3).) “A separate statement is a separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue.” (Cal. Rules of Court, rule 3.1345(c).)

Here Safarian has substantially fulfilled this requirement by including a separate statement.

B.     Motion to Compel Further Answers to Deposition Questions

A party is entitled to take the oral deposition, in California, “of any person, including any party to the action.” (Code Civ. Proc., § 2025.010.) “If a deponent fails to answer any question . . . the party seeking discovery may move the court for an order compelling that answer . . . .” (Id., § 2025.480, subd. (a).) “If the court determines that the answer . . . sought is subject to discovery, it shall order that the answer be given . . . on the resumption of the deposition.” (Id., § 2025.480, subd. (i).)

Safarian moves to compel DSC’s further answers to 12 deposition questions, arguing that DSC’s Person Most Knowledgeable (“PMK”) failed to adequately answer these questions during the October 23, 2024 deposition.

(1)   Deposition Question Nos. 1-3

Question No. 1: What percentage of the practice is attributed to personal injury lien patients?

Question No. 2: All right. And what about the percentage of the practice that’s attributed to Medicare patients?

Question No. 3: All right. And I’m going to ask the same question but with respect to workers’ compensation, PPO, cash patients as well.

(Safarian’s Separate Statement, at p. 2.)

The above-listed questions pertain to DSC’s practice composition. Safarian argues that the information sought is relevant to his defense disputing the reasonable value of Plaintiff’s medical expenses. However, Safarian does not specifically explain how DSC’s practice composition – namely the percentage of its practice attributed to lien-based, Medicare, workers’ compensation, PPO, and cash patients, respectively – is either relevant to or reasonably calculated to lead to the discovery of admissible evidence regarding the reasonableness of Plaintiff’s medical expenses for a single left shoulder operation at DSC.

Due to a lack of sufficient showing of relevance, the Court DENIES the Motion as to Deposition Question Nos. 1-3.

(2)   Deposition Questions Nos. 4, 6, 7, 11, and 12

Question No. 4: Okay. So is there an authorization process for procedures getting done at DOCS Surgery Center? So what type of payers require an authorization?

Question 6: When DOCS Surgery Center sells a lien to a third-party company, do they get the patient’s consent in order to do that?

Question 7: How long does it typically take for you to recover payment for a patient that’s treating through private insurance?

Question 11: How often does DOCS recover a hundred percent of the total lien amount?

Question 12: How often does DOCS receive 75 percent of the total bill charges?

(Safarian’s Separate Statement, at pp. 3-5.)

These questions pertain to the authorization process, consent to the sale of lien, and time to recover payments.

Safarian fails to provide any explanation or legal analysis establishing the relevance of the information sought in these questions to the reasonableness of Plaintiff’s medical expenses. As a result, the Court is unable to discern the relevance, as Safarian’s separate statement fails to address this central issue.

            Accordingly, the Court DENIES the Motion as to Deposition Question Nos. 4, 6, 7, 11 and 12.

(3)   Deposition Question No. 5

Question 5: And what about the specific values for each CPT code? Who determines that? Do you know if the fee schedule is based on a certain percentage of Medicare?

(Safarian’s Separate Statement, at p. 3.)

Safarian argues that references to insurance and Medicare reimbursement rates are helpful and even necessary for the jury’s understanding of the reasonable value of medical expenses, citing Stoke v. Muschinskie (2019) 34 Cal.App.5th 45. In that case, the defendant’s expert used the Medicare “allowable amount” and 130 percent of the Medicare allowable amount as methods to calculate reasonable value of past services. (Id. at p 59, fn. 6.)

The Court finds Safarian’s reasoning unpersuasive, as it relies on a method that applies the Medicare allowable amount and a multiplier, neither of which directly relates to the fee schedule information sought by the question. Nevertheless, the Court recognizes that the fee schedule information may be reasonably calculated to lead to the discovery of admissible evidence. For example, if the fee schedule price differs from the billed amount – specifically $92,162.10 (Mendoza Decl. ¶ 3) – it may have a tendency in reason to prove or disprove the reasonableness of the billed charges.

Acknowledging this limited relevance, the Court GRANTS IN PART the Motion as to Deposition Question No. 5. DSC is only required to provide the answer as to the treatment or procedure that Plaintiff received at DSC, rather than an entire fee schedule.

(4)   Deposition Question Nos. 8 - 10

Question 8: Does DOCS typically reduce the outstanding lien amount once a personal injury case resolves?

Question 9: How often do you see the balance reduced or written off?

Question 10: Do you know what the average amount received or accepted by DOCS is - for the same or similar procedures that provided to plaintiff in this case, which would be a left shoulder surgery?

The Court finds these questions are reasonably calculated to lead to the discovery of admissible evidence, including information regarding DSC’s voluntary adjustments and acceptance of a negotiated lower payment from patients.

i.                    DSC’s Privacy Objection

DSC objects on the grounds that these questions invade its right of privacy.

California case law remains unsettled regarding the extent of any privacy rights for business entities. (S.B.C.C., Inc. v. St. Paul Fire & Marine Ins. Co. (2010) 186 Cal.App.4th 383, 396, fn. 6.) Some opinions hold that the California Constitution protects only the privacy rights of individuals, while other opinions hold that business entities have zones of privacy rights, and still others assume, without deciding, that corporations enjoy a constitutional right of privacy. (See Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 314, fn. 16 [comparing cases without deciding issue].) However, it is established that corporate privacy rights are not constitutionally protected at the same level as individual privacy rights and are not considered fundamental rights. (Ameri-Medical Corp. v. Workers' Comp. Appeals Bd. (1996) 42 Cal.App.4th 1260, 1287-1288.) “The discovery's relevance to the subject matter of the pending dispute and whether the discovery “ ‘appears reasonably calculated to lead to the discovery of admissible evidence’ ” is balanced against the corporate right of privacy. (Hecht, Solberg, Robinson, Goldberg & Bagley LLP v. Superior Court (2006) 137 Cal.App.4th 579, 595.) Doubts about relevance generally are resolved in favor of permitting discovery. (Ibid.)

Additionally, the burden is on “the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion,” and then the court must “weigh the countervailing interests the opposing party identifies.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 557 (Williams).)

Here, DSC merely asserts that the questions invade its right of privacy. A generalized assertion of privacy rights, without explaining the nature of the alleged invasion, is insufficient to sustain such an objection. To the extent any legitimate privacy concerns exist, a protective order can be issued to safeguard any privacy rights.

Accordingly, the Court GRANTS the Motion as to Deposition Question Nos. 8-10.

C.    Motion to Compel Further Responses to Request for Production (RFP)

Safarian also moves to compel DSC to provide further responses to his RFP Nos. as specified in his Amended Notice of Deposition Subpoena dated September 12, 2024.

(1)   RFP Nos. 6

RFP No. 6: “Any and all DOCUMENTS, including any correspondences and communications, either in written or electronic form, concerning any and all authorizations for treatment and/or surgery, including any correspondences and communications with AGHABEGIAN & ASSOCIATES, PC (or any partner, associate, or employee of that firm, or any other associated firm.), or any attorney and law firms (or any partner, associate, or employee of that firm) that have previously represented, or will substitute in, as plaintiff(s)’ counsel as of the date of this notice, a funding company, factoring company, attorneys office and services provider relating to any and all authorization for treatment and/or surgery and charges on a medical lien.

As previously addressed, Safarian’s separate statement is devoid of explanation as to the relevance between Plaintiff’s authorization for treatment and the reasonableness of the medical expenses.

Accordingly, the Court DENIES the Motion as to RFP No. 6.

(2)   RFP Nos. 7 and 9

RFP No. 7 “Any and all DOCUMENTS from third party lien holders, factoring companies, bonafide purchases of accounts receivables and financing companies, assignments of bills, liens, payments, documents regarding negotiations, loan and/or lending agreements, documents regarding cash advances, and payments for the treatment of TADHE HOVSEPIAN (D.O.B. 07/25/77).”

RFP No. 9 “All DOCUMENTS reflecting any assignments, sales or transfers of liens, outstanding billings with balances or accounts receivable for TADHE HOVSEPIAN (D.O.B. 07/25/77).”

            DSC asserts no objection to RFP Nos. 7 and 9.

            The Court therefore GRANTS the Motion as to RFP Nos. 7 and 9.

(3)   RFP Nos. 10, 11, 12, 13, 15, 16, 21, 22, and 23

RFP No. 10 “Any and all DOCUMENTS, reports or records reflecting or evidencing the actual or average amount recovered, received or accepted by DOCS SURGERY CENTER, as payment for treatment provided to patients billed through private or commercial insurance plans that is the same or similar treatment that was provided to TADHE HOVSEPIAN (D.O.B. 07/25/77) for the last five years.”

RFP No. 11 “Any and all DOCUMENTS, reports or records reflecting or evidencing the actual or average amount recovered, received or accepted by DOCS SURGERY CENTER as payment for treatment provided to patients billed through government insurance plans, including medical and medicare, that is the same or similar treatment that was provided to TADHE HOVSEPIAN (D.O.B. 07/25/77) for the last five years.”

RFP No. 12 “Any and all DOCUMENTS, reports or records reflecting or evidencing the actual or average amount recovered, received or accepted by DOCS SURGERY CENTER as payment for treatment provided to patients billed through Worker’s Compensation, that is the same or similar treatment that was provided to TADHE HOVSEPIAN (D.O.B. 07/25/77), for the last five years.”

RFP No. 13 “Any and all DOCUMENTS, reports or records reflecting or evidencing the actual or average amount recovered, received or accepted by DOCS SURGERY CENTER as payment for treatment provided to patients treated on a personal injury lien or medical-legal lien-basis, that is the same or similar treatment that was provided to TADHE HOVSEPIAN (D.O.B. 07/25/77), for the last five years.”

RFP No. 15 “Any and all DOCUMENTS evidencing what DOCS SURGERY CENTER has previously accepted as full payment and/or reimbursement from any factoring company for the same and/or similar services provided to the plaintiff TADHE HOVSEPIAN (D.O.B. 07/25/77), for the last five years.“

RFP No. 16 “Any and all DOCUMENTS evidencing what DOCS SURGERY CENTER has previously accepted as full payment and/or reimbursement from Medicare for the same and/or similar services provided to the plaintiff TADHE HOVSEPIAN (D.O.B. 07/25/77), for the last five years.”

RFP No. 21 “All DOCUMENTS that evidence the amount that DOCS SURGERY CENTER has accepted post-trial, verdict, judgment or settlement for the same and/or similar services performed on plaintiff in this matter for the past five years.”

RFP No. 22 “All DOCUMENTS establishing or evidencing that DOCS SURGERY CENTER has received the full amount of your lien treatment charges for any patient that has received the same and/or similar services as those provided to TADHE HOVSEPIAN (D.O.B. 07/25/77), in this matter for the past five years.”

RFP No. 23 “All DOCUMENTS which evidence the collection actions you have undertaken, and/or on your behalf, on lien treatment patients for the past five years.”

These questions pertain to the full range of fees DSC has charged and accepted as payment over the past five years for similar services that Plaintiff received at DSC and at issue in this case. With the exception of RFP Nos. 15, the Court finds these RFP Nos. relevant.

The measure of recovery is well established: “[A] person injured by another's tortious conduct is entitled to recover the reasonable value of medical care and services reasonably required and attributable to the tort.” (Hanif v. Housing Authority (1988) 200 Cal.App.3d 635, 640 (Hanif).)

First, plaintiffs must prove that they actually incurred the medical expenses and the amount of their liability for the expenses caps their potential recovery. (Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298.)

Second, plaintiffs must prove the reasonable value of the medical services but are entitled to no more than the expenses they actually incurred. “[A] plaintiff may recover as economic damages no more than the reasonable value of the medical services received and is not entitled to recover the reasonable value if his or her actual loss was less.” (Howell, supra, 52 Cal.4th at p. 555.)

Courts recognize several factors as relevant in assessing the reasonable value of medical service, including the difficulty of procedure or surgery, the expertise of the surgeons, the number of surgeons competent to perform an intricate, high-risk surgery. (Moore, supra, 4 Cal.App.5th at p. 436.) Additionally, evidence of full range of fees hospital charged and accepted as payment for similar services was relevant to the issue of the reasonable and customary value of those services. (Children’s Hospital Central California v. Blue Cross of California (2014) 226 Cal.App.4th 1260, 1277.) Expenses incurred were, on their face, not unreasonable. (Townsend v. Keith (1917) 34 Cal.App. 564, 566.)

In Howell, supra, the health care providers accepted the discounted amounts as full payment pursuant to a preexisting agreement with the plaintiff's private insurance. The plaintiff's prospective liability therefore was limited to the amount the insurer had agreed to pay the providers for the services they were to render. The court in Howell reasoned that because insured plaintiffs incur only the fee amount negotiated by their insurer, not the initial billed amount, insured plaintiffs may not recover more than their actual loss, i.e., the amount incurred and paid to settle their medical bills. (Id. at p. 555.)

            Similarly, if the injured plaintiff is a Medi-Cal recipient, the recovery for his past medical expenses is limited to the amount Medi-Cal had actually paid on this behalf. (Hanif, supra.) The Hanif court reasoned that the “detriment” the plaintiff suffered [citation], his pecuniary “loss” [Citation], was only what Medi–Cal had paid on his behalf; to award more was to place him in a better financial position than before the tort was committed. (Id. at pp. 640–641.)

Conversely, distinction was made between prenegotiated payments by typical insurers and a third-party purchase of a medical liens. In the latter case, the plaintiff’s recovery is not limited to the amount paid by the third-party to purchase plaintiff’s accounts. (Katiuzhinsky v. Perry (2007) 152 Cal.App.4th 1288 (Katiuzhinsky).) The Supreme Court in Howell noted the holding in Katiuzhinsky that “ ‘[t]he intervention of a third party in purchasing a medical lien does not prevent a plaintiff from recovering the amounts billed by the medical provider for care and treatment, as long as the plaintiff legitimately incurs those expenses and remains liable for their [full] payment.’ [Citation.]” (Howell, at p. 554, 129 Cal.Rptr.3d 325, 257 P.3d 1130, italics in original.) Furthermore, the Katiuzhinsky court suggested that the purchase price of the medical lien is not related to the reasonable value of the service provided or the billed expense. (Katiuzhinsky, supra, 152 Cal.App.4th at p. 1298 [“The fact that a hospital or doctor, for administrative or economic convenience, decides to sell a debt to a third party at a discount does not reduce the value of the services provided in the first place. Moreover, the bills are not inflated due to MedFin's involvement. MedFin has no control over what the providers charge for their services, which are billed out at the usual and customary rates.”])

            Here, the above-listed Questions seek information on the full range of fees DSC has charged and accepted as payment for similar services including those related to medical liens (RFP Nos. 13, 22, 23), Medicare (RFP No. 16), and payment through judgment or settlement (RFP No. 21). Under established precedent, these fees are relevant or reasonably calculated to lead to the discovery of admissible evidence regarding the reasonableness of the expenses as well as Plaintiff’s actually incurred financial liabilities.

i.                    DSC’s Trade Secret Objection

The party claiming a trade secret privilege has the burden of establishing its existence. (Bridgestone/Firestone, Inc. v. Superior Court (1992) 7 Cal.App.4th 1384, 1393.) The propounding party must then make a showing that the discovery sought is relevant and necessary to proving or defending against an element of one or more causes of action in the case and that it is reasonably essential to resolving the lawsuit. (Ibid.) Upon this showing, it is up to the holder of the privilege to show that a protective order would be inadequate. (Ibid.) “Either party may propose or oppose less intrusive alternatives to disclosure of the trade secret, but the burden is upon the trade secret claimant to demonstrate that an alternative to disclosure will not be unduly burdensome to the opposing side and that it will maintain the same fair balance in the litigation that would have been achieved by disclosure.” (Ibid.)

Here, DSC, as the trade secret claimant, has the burden of demonstrating that an alternative to disclosure will not be unduly burdensome to the opposing side and that it will maintain the same fair balance in the litigation that would have been achieved by disclosure. Additionally, there is no indication in the case file that a protective order has been sought or stipulated by the parties.

Consequently, the Court finds that DSC’s trade secret objection lacks merit.

            Therefore, the Court GRANTS the Motion as to RFP Nos. 13, 16, 21-23.

            However, RFP No. 15 seeks information on fees paid by factoring companies. These fees, like those paid by medical finance companies and unlike private insurance, reflect what a third party was willing to pay for an account receivable or lien, rather than the reasonable value of medical service.

The Moore court explained that such fees are reached depending on a wide variety of factors “bearing no relevance to the reasonable value of the services” provided, such as “the probability of achieving a sizable jury verdict, the skill of the lawyers, and the strength of the evidence ... with absolutely no reflection on the value of the services the plaintiff received.” (Moore, supra, 4 Cal.App.5th at p. 442.)

Beyond being disconnected from the reasonable value of medical services, the fees paid by a third-party lien purchaser do not impact the actual medical expenses incurred by plaintiff, who remains liable to the factoring company for the original amounts of the bill.

Safarian cites Moore to argue that the evidence of a “medical factoring payment agreement ... was not irrelevant as a matter of law.” (Mot. at p. 6, underlines added.) While this statement suggests that the evidence surrounding the sale of the lien may bear some probative value in determining the reasonable value of the services, it does not establish that the actual amount paid by a factoring company, as sought in RFP No. 15, is relevant. On the contrary, as discussed above, California courts, including Moore, have expressly stated that the reduced purchase price of medical accounts or liens by a third party is irrelevant and does not reduce the actual liability incurred by Plaintiff. (See, e.g., Katiuzhinsky, supra.)

Additionally, unlike in Moore, where the lien was sold to a medical finance company (MedFin), Plaintiff’s lien has not been sold to a factoring company in this case. (Opp’n. at p. 6.)

The Court is not persuaded by Safarian’s argument and concludes that this inquiry is irrelevant to the central issue here.

Accordingly, the Court DENIES the Motion as to RFP No. 15.

(4)   RFP Nos. 17, 18

RFP No. 17 “All DOCUMENTS and resources utilized by DOCS SURGERY CENTER’S billing department, personnel and director to establish the facilities fee schedules for private insurance, medical lien, Medicare, Medical or government insurance, cash or workers compensation.”

RFP No. 18 “The fee schedule currently utilized by DOCS SURGERY CENTER for patients treated and/or billed through private insurance, medical lien, personal injury lien, Medicare, Medical or government insurance, cash or workers compensation.”

            The Court finds that the relevance of the fee schedule is limited to the specific fee for the procedure or surgeries Plaintiff received at DSC.

            Accordingly, the Court GRANTS IN PART the Motion as to RFP Nos. 17-18.

D.    Monetary Sanctions

Code of Civil Procedure section 2025.480 subdivision (j) provides, in the pertinent part, that: “The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

            Since the Court has GRANTED IN PART and DENIED IN PART the Motion, it finds that the monetary sanctions under Code of Civil Procedure section 2025.480 – reserved for a prevailing party – are inapplicable.

            Accordingly, the Court DENIES both parties’ requests for monetary sanctions.

CONCLUSION

Defendant Carlo Safarian’s Motion to Compel Further Answers to Deposition Questions and Further Responses to Request for Production of Documents is GRANTED IN PART, consistent with the ruling above.

Non-party DOCS Surgery Center is ordered to provide further answers to Deposition Question Nos. 5 (limited), and 8-10 within 15 days.

Non-party DOCS Surgery Center is further ordered to provide further responses to the Request for Production of Documents Nos. 7, 9, 10, 11, 12, 13, 16, 17 (limited), 18 (limited), 21, 22, and 23 within 15 days.

Defendant Carlo Safarian’s Request for Monetary Sanctions is DENIED.

Non-party DOCS Surgery Center’s Request for Monetary Sanctions is DENIED.

Moving party to give notice.