Judge: Helen Zukin, Case: 19SMCV00854, Date: 2023-01-12 Tentative Ruling
Case Number: 19SMCV00854 Hearing Date: January 12, 2023 Dept: 207
Background
Plaintiff Angelique Gettle (“Plaintiff”) brings this action
against Defendants Emilia Vaynman, Irina Pinchuck (together with Emilia
Vaynman, “Defendants”), and others stemming from claims of inhabitability and
negligence concerning her tenancy at a residential property located at 1419
Stanford St., Unit A in Santa Monica, California. Defendants bring this motion
to compel compliance with a subpoena they issued to third party Ruth Subrin,
LMFT (“Subrin”) for production of documents related to her treatment of
Plaintiff. Defendants also ask the Court to impose monetary sanctions against
Plaintiff, Plaintiff’s counsel, and Subrin. Plaintiff and Subrin oppose
Defendants’ 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.¿ (C.C.P. § 2020.010.)¿ A deposition subpoena may command: (1) only the
attendance and testimony of the deponent, (2) only the production of business records
for copying, or (3) the attendance and testimony of the deponent, as well as the
production of business records, other documents, electronically stored information,
and tangible things.¿ (C.C.P. § 2020.020.)¿
¿
¿“If a subpoena
requires the attendance of a witness or the production of books, documents, electronically
stored information, or other things before a court, or at the trial of an issue
therein, or at the taking of a deposition, the court, upon motion reasonably made
by [a party], or upon the court’s own motion after giving counsel notice and an
opportunity to be heard, may make an order quashing the subpoena entirely, modifying
it, or directing compliance with it upon those terms or conditions as the court
shall declare, including protective orders. In addition, the court may make any
other order as may be appropriate to protect the person from unreasonable or oppressive
demands, including unreasonable violations of the right of privacy of the person.”
(C.C.P. § 1987.1.)
“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.” (C.C.P. § 2025.480(a).) “This
motion shall be made no later than 60 days after the completion of the record of
the deposition, and shall be accompanied by a meet and confer declaration under
Section 2016.040.” (C.C.P. § 2025.480(b).)
A nonparty
deponent may be subject to contempt or monetary sanctions for disobeying a court
order (C.C.P. § 2025.480(k)) or for “flouting” the discovery process by suppressing
or destroying evidence (Temple Community Hospital v. Superior Court (1999)
20 Cal.4th 464, 476).¿ A nonparty may be punished by contempt (C.C.P. § 2020.240)
or payment of $500.00 (C.C.P. § 1992).¿
The court may in its discretion “award the amount of the reasonable
expenses incurred in making or opposing the motion [to compel a nonparty’s compliance
to a subpoena], including reasonable attorney’s fees, if the court finds the motion
was made or opposed in bad faith or without substantial justification or that one
or more of the requirements of the subpoena was oppressive.” (C.C.P. § 1987.2(a).) “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.” (C.C.P. § 2025.480(j).)
Analysis
1. Meet and Confer
Defendants have satisfied the meet
and confer requirement imposed by Code Civ. Proc. § 2025.480(b). (Schwartz
Decl. at ¶¶8-10.)
2. Production
of Documents
The facts giving rise to Defendants’ motion are largely
undisputed. Plaintiff’s claimed damages in this action include mental
suffering. Plaintiff has represented that she has sought treatment for
emotional distress relating to her claims from Subrin. Defendants served Subrin
with a subpoena calling for production of her entire file relating to her treatment
of Plaintiff. After Subrin refused to produce any documents on the basis that
Plaintiff had not authorized such disclosure, Plaintiff executed a release
allowing Subrin to produce the records called for in Defendants’ subpoena.
Subrin eventually produced some records to Defendants. Defendants argue
Subrin’s production is incomplete. Plaintiff and Subrin do not dispute that
Defendants are entitled to Subrin’s records relating to Plaintiff’s treatment.
Indeed, Plaintiff has plainly put such records at issue in this litigation as
she admits she saw Subrin for treatment of emotional distress relating to her
claims against Defendants and is claiming emotional distress as part of her
damages in this action.
The dispute over the subpoena centers on Subrin’s
handwritten notes. Defendants claim Subrin has improperly withheld her
handwritten notes from production based on the erroneous claim that she was
entitled to instead retype her handwritten notes and produce only the typed
version of her notes while withholding her handwritten notes.
Subrin retained an attorney to oppose Defendants’ motion to
compel. In her opposition, Subrin’s counsel admits he has not been able to get
in contact with Subrin to determine why she retyped her notes or whether the
typewritten notes are full and complete copies of her handwritten notes.
(Subrin Opposition at 2 [admitting “we do not know why Ms. Subrin retyped her
notes” or whether “Ms. Subrin typed her notes exactly as written”.] Counsel
speculates Subrin may have typed her notes “to make them more legible to third
parties” (id at 2) and asks the Court to find Subrin has turned over the
entire content of her file of Plaintiff’s therapy records. The Court cannot
reach that finding based solely on the speculation and conjecture of Subrin’s
counsel. Subrin is the only person with knowledge as to whether she has in fact
turned over all of her records of Plaintiff’s treatment. She has not put before
the Court any evidence establishing she has done so. In the absence of such
information, the Court cannot find the typewritten notes are a satisfactory
substitute for the handwritten notes. Subrin has not put forth any other basis
for withholding the handwritten notes—or any other part of her file—from
production in response to Defendants’ subpoena. Accordingly, the Court GRANTS
Defendants motion to compel Subrin to produce all records relating to her
treatment of Plaintiff, including handwritten notes, billing records, and any
other responsive documents previously withheld from production.
3. Sanctions
Defendants ask the Court to impose a monetary sanction of
$7,150 against Plaintiff, Plaintiff’s counsel, and Subrin. Plaintiff’s
opposition does not dispute Defendants’ right to receive Subrin’s records, but
instead only opposes Defendants’ motion to the extent it seeks monetary
sanctions against Plaintiff and Plaintiff’s counsel. Plaintiff argues she has
cooperated with Defendants’ efforts to obtain records from Subrin, and thus
there is no basis to sanction Plaintiff or her counsel in connection with this
motion. Defendants appear to concede this issue, as their reply only requests
sanctions against Subrin, not Plaintiff or her counsel. (Reply at 4.) The Court
agrees there is no basis to sanction Plaintiff or Plaintiff’s counsel in
connection with this motion to compel against Subrin. Accordingly, to the
extent Defendants’ requests for sanctions against Plaintiff and her counsel
were not withdrawn in Defendants’ reply, it is DENIED.
As to Defendants’ request for sanctions against Subrin, the
Court agrees monetary sanctions are appropriate given Subrin has not
established any legal basis for refusing to turn over the handwritten notes,
and has not even established whether the typewritten notes are full and
complete copies of the handwritten notes that she refused to turn over. In
other words, Subrin has not carried her burden to show her opposition to this
motion was made with substantial justification.
However, the Court finds Defendants request for $7,150 in
sanctions to be excessive. Defendants’ counsel claims he spent 7.5 hours
researching the instant motion. The Court notes Defendants’ motion totaled a
little over six pages in length and contained only two case citations, both for
general propositions regarding the scope of discovery. The Court in its
discretion instead imposes a monetary sanction of $1,000 against Subrin for
opposing Defendants’ motion to compel without substantial justification. (C.C.P. §
2025.480(j).).
Conclusion
Defendants’ motion to compel compliance with the subpoena
served on third party Ruth Subrin, LMFT is GRANTED and in its discretion the
Court imposes a monetary sanction against Subrin in the amount of $1,000 to be
paid to counsel for Defendants.