Judge Jill Feeney, Case 20STCV36767 2023-01-24 Tentative Ruling

This is an action for negligence and medical malpractice arising from a surgery performed on Plaintiff in September 2019. Plaintiff Djamileh Mahjoubi filed her Complaint against David E. Fermelia on September 25, 2020.

Plaintiff seeks an order compelling Cedars Sinai Medical Center’s (“Cedars Sinai”) compliance with a subpoena served on September 6, 2022. Plaintiff alleges that Cedars Sinai refused to comply with the subpoena on invalid technical matters and failed to respond to Plaintiff’s fax. Plaintiff argues that Cedars Sinai’s objections were improper because (1) Plaintiff was not required to serve the subpoena on the consumer because Plaintiff is the consumer requesting her own records, (2) she did not add to the subpoena after it was issued, and (3) Plaintiff can be the deposition officer.

Cedars Sinai in opposition argues (1) the motion is untimely, (2) the motion gave insufficient notice of the hearing, (3) there are no points or authorities supporting the motion, (4) there are evidentiary and service issues with the motion, and (5) document categories impinge upon third person privacy interests. Additionally, Cedars Sinai has already arranged to send Plaintiff her medical records by mail.

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 . . . .”

The Court notes that the underlying subpoena is defective. A subpoena must command compliance no sooner than 20 days after the subpoena’s issuance, or 15 days after service, whichever is later. (Code Civ. Proc., section 2020.410(c).) Here, the subpoenaed records were due on September 20, 2022. The subpoena was issued on August 24, 2022. The later date is 15 days after service, which is September 21, 2022. Plaintiff’s subpoena demanded compliance earlier than the September 21, 2022 deadline and is therefore defective.

Code of Civil Procedure Section 2020.420 states that a deposition officer may not be financially interested in the action and shall be a registered, professional photocopier. Here, Plaintiff listed herself as the deposition officer.

Although Plaintiff is the one issuing the subpoena, she still must include a notice to consumer/singed release so that the individual processing the subpoena has the required documentation necessary to release the records sought.

Plaintiff’s motion also has significant procedural defects. Cedars Sinai’s counsel testifies that Plaintiff never served this motion on Cedars Sinai and instead emailed a copy of the motion to counsel on January 12, 2023. (Dik Decl., ¶¶2-3.) Noticed motions must be served and filed 16 court days before the hearing date. (Code Civ. Proc., section 1005.) Cedars Sinai received the motion with only seven court days of notice. This motion was not timely served. The Court also notes that there is no proof of service filed with this motion. Additionally, this motion was not served via personal service as required by Cal. Rules of Court, Rule 3.1346. There is no evidence that Cedars Sinai agreed to be served via electronic service.