Judge Holly J. Fujie, Case 22STCP04460 2023-04-05 Tentative Ruling

This matter arises out of an underinsured motorist claim. On January 30, 2023, Petitioner filed: (1) a motion to compel the deposition of non-party Integrated Pain Management’s (“IPM”) custodian of records (“COR”) (the “COR Motion”) and (2) a motion to compel the deposition of IPM’s person most knowledgeable (“PMK”) (the “PMK Motion”).

Under California Code of Civil Procedure (“CCP”) section 1987.1, subdivision (a), 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 made by any person described in CCP section 1987.1, subdivision (b), 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. (CCP § 1987.1, subd. (a).) CCP section 1985.3, subdivision (b) provides: prior to the date called for in the subpoena duces tecum for the production of personal records, the subpoenaing party shall serve or cause to be served on the consumer whose records are being sought a copy of the subpoena duces tecum, of the affidavit supporting the issuance of the subpoena, if any, and of the notice described in subdivision (e), and proof of service as indicated in paragraph (1) of subdivision (c). This service shall be made as follows:

(1) To the consumer personally, or at his or her last known address, or in accordance with Chapter 5 (commencing with Section 1010) of Title 14 of Part 3, or, if he or she is a party, to his or her attorney of record. If the consumer is a minor, service shall be made on the minor's parent, guardian, conservator, or similar fiduciary, or if one of them cannot be located with reasonable diligence, then service shall be made on any person having the care or control of the minor or with whom the minor resides or by whom the minor is employed, and on the minor if the minor is at least 12 years of age;

(2) Not less than 10 days prior to the date for production specified in the subpoena duces tecum, plus the additional time provided by Section 1013 if service is by mail; and

(3) At least five days prior to service upon the custodian of the records, plus the additional time provided by Section 1013 if service is by mail.

CCP section 1985.3, subdivision (c) provides: prior to the production of the records, the subpoenaing party shall do either of the following: (1) serve or cause to be served upon the witness a proof of personal service or of service by mail attesting to compliance with subdivision (b); or (2) furnish the witness a written authorization to release the records signed by the consumer or by his or her attorney of record. (CCP § 1985.3, subd. (c).)

Petitioner served subpoenas on IPM’s COR and PMK (collectively, the “Subpoenas”) on March 4, 2022. (Declaration of Jonathan H. Colman (“Colman Decl.”), Exhibit 2.) Petitioner served Respondent Brenda Ramos (“Respondent”) with Notice to Consumer of the Subpoenas on February 22, 2022. (Colman Decl., Exhibit 3.) Neither IPM’s COR nor PMK appeared for their March 29, 2022 depositions. (Colman Decl. ¶ 6.)

In the opposition (the “Opposition”), Roofian declares that he received the Subpoenas on March 4, 2022, and that the Subpoenas did not include documents regarding consumer notice. (Declaration of Shawn Roofian (“Roofian Decl.”) ¶ 2.) Because Petitioner did not comply with CCP section 1985.3, subdivision (c), the Subpoenas are not code-compliant. The Court therefore DENIES the Motions.

Roofian seeks $2,4000 in connection to the opposition. This amount represents: (1) five hours preparing the Opposition; and (2) an anticipated hour attending the hearing at an hourly rate of $400 per hour. (Declaration of Farooq Mir (“Mir Decl.”) ¶ 2.) The Court exercises its discretion and awards Roofian sanctions in the reasonable amount of $800, which represents two hours of work on the Opposition at a rate of $400 per hour, which is to be paid within 20 days of the date of this order. (Moran v. Oso Valley Greenbelt Assn. (2004) 117 Cal.App.4th 1029, 1034.)

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court