Judge Jill Feeney, Case 20STCV02388 2023-03-29 Tentative Ruling

The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.

Regardless of whether there is any such agreement, each party who wishes to submit must send an email to the Court at SSCdept30@LACourt.org indicating the party's intention to submit.

Include the word "SUBMITS" in all caps and the case number in the subject line of the email and in the body provide the date and time of the hearing, your name, your contact information, the party you represent, whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, or non-party.

If a party submits but still intends to appear at the hearing, include the words "SUBMITS BUT WILL APPEAR" in the subject line of the email.

If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Unless all the parties have submitted, the Court will hear argument from any party that appears at the hearing and wishes to argue. The Court may change its tentative as a result of the argument and adopt the changed tentative as the final order at the end of that hearing, even if all the parties are not present.

Be advised that after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of said motion and may adopt the tentative ruling as the order of the Court.

Defendant Kim seeks to compel the billing person most knowledgeable (“billing PMK”) from Plaintiff’s medical provider, Biohealth Pain Management (“Biohealth”), to appear at deposition. Defendant alleges that the billing PMK, Dr. Rostam Khoshar, refused to appear for the deposition because he was demanding $1,200 per hour for the deposition. Defendant alleges that Code Civ. Proc., section 2020.230, subd. (a) provides that a witness appearing for a deposition on a deposition subpoena is only entitled to $35 per day, plus mileage.

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.¿ (Code Civ. Proc., § 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.¿ (Code Civ. Proc., § 2020.020.)¿

A service of a deposition subpoena shall be affected a sufficient time in advance of the deposition to provide the deponent a reasonable opportunity to locate and produce any designated documents and, where personal attendance is commanded, a reasonable time to travel to the place of deposition.¿ (Code Civ. Proc., § 2020.220, subd. (a).)¿ Personal service of any deposition subpoena is effective to require a deponent who is a resident of California to: personally appear and testify, if the subpoena so specifies; to produce any specified documents; and to appear at a court session if the subpoena so specifies.¿ (Code Civ. Proc., § 2020.220, subd. (c).)¿ A deponent who disobeys a deposition subpoena may be punished for contempt without the necessity of a prior order of the court directing compliance by the witness.¿ (Code Civ. Proc., § 2020.240.)¿

A “written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail¿or electronic service¿at an address¿or electronic service address¿specified on the deposition record.”¿ (Cal. Rules of Court, Rule 3.1346.)¿

California Code of Civil Procedure section 1987.1, subdivision (a) states, “[i]f a subpoena requires the attendance of a witness or the production of books, documents, 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 any person described in 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, 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.”

“[U]pon motion reasonably made by the party, judges may rule upon motions for quashing, modifying or compelling compliance with, subpoenas.” (Lee v. Swansboro Country Property Owners Ass'n (2007) 151 Cal.App.4th 575, 582-583.)

California Code of Civil Procedure section 1987.2, subdivision (a) states, in relevant part, “. . . in making an order pursuant to motion made . . . under Section 1987.1, the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, 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.

Defendant seeks orders compelling Biohealth’s billing PMK to appear for deposition concerning a deposition subpoena. Biohealth agreed to electronic service of the deposition notice and subpoena. (Mendoza Decl., ¶6.) This motion was properly served on Biohealth via personal service.

Defendant’s counsel testifies that on February 27, 2023 counsel’s office served a notice of deposition, subpoena, and other papers electronically on Biohealth. (Mendoza Decl., ¶6.) Biohealth sent its fee schedule stating that Dr. Khoshar, the billing PMK, would require $1,200 per hour for the deposition. (Id., ¶7.) Defendant’s counsel advised that he was only seeking a deposition of the billing PMK, not an expert deposition of Dr. Khoshar as a treating physician, and that Dr. Khoshar would only be entitled to $35. (Id.) Biohealth advised that the deposition would be cancelled because Dr. Khoshar would not agree to the $35 fee. (Id.) Defendant’s counsel sent Biohealth a check for $35, which Biohealth returned.. (Id., ¶8.)

Code Civ. Proc., section 2020.230, subd. (a) provides that if a deposition subpoena requires the personal attendance of the deponent, the party noticing the deposition shall pay the deponent the same witness fee and mileage required by Chapter 1 (commencing with Section 68070) of Title 8 of the Government Code for attendance and testimony. Gov. Code, section 68093 provides that witness fees for each day’s actual attendance, when legally required to attend a civil action or proceeding in the superior courts, are $35 a day and mileage actually travelled, both ways, at $0.20 per mile.

Here, Dr. Khoshar is being deposed as a records PMK, not as an expert witness. Therefore, he is only entitled to $35 plus mileage, the witness fees set forth in Code Civ. Proc., section 2020.230 and Gov. Code, section 68093. Defendant’s deposition subpoena was properly noticed and Defendant attempted to pay the appropriate fee. Defendant’s motion to compel Biohealth’s compliance with the deposition subpoena is granted.

With respect to sanctions, Code Civ. Proc., section 1987.2, subd. (a) provides that sanctions may be imposed at the court’s discretion 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. Here, Defendant’s motion was granted and it was not opposed. Therefore, sanctions are denied.