Judge Jill Feeney, Case 20STCV43630 2023-02-14 Tentative Ruling

This is an action for negligence arising from school bullying which took place between 2018 and 2020. Plaintiff Trinity Hernandez filed her Complaint against Azusa Unified School District on November 13, 2020.

Defendant seeks orders compelling Heredia Therapy Group (“HTG”) to comply with the subpoena served on November 29, 2021. Plaintiff has received no response to the subpoena despite several attempts to contact HTG.

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 . . . .”

Defendant seeks an order compelling Plaintiff’s therapy provider, HTG, to produce medical records pertaining to Plaintiff’s treatment for emotional and psychological injuries.

Defendant originally served its subpoena on HTG on November 29, 2021. (Stephenson-Cheang Decl., ¶3.) HTG did not respond to the subpoena despite several contact attempts. (Id., ¶4.) Defendant served a second subpoena on August 9, 2022. (Id., ¶5.) Defendant has not received a response to the subpoenas or its meet and confer correspondence to date. (Id., ¶¶8-9.)

Defendant’s evidence shows that HTG failed to respond to the subpoenas issued on November 29, 2021 and August 9, 2022. Because this motion was filed within 60 days of August 9, 2022, the motion is timely. Plaintiff’s records related to treatment for emotional and psychological injuries are discoverable because her FAC seeks damages for pain and suffering and emotional distress. Plaintiff also was served with notice of the subpoena as required under Code Civ. Proc., section 2020.510, subd. (c).

Defendant served HTG via mail. However, Code Civ. Proc., section 2020.220, subd. (b) and (c) require that deposition subpoenas be served via personal service. Additionally, Defendant’s proof of service shows that it served HTG with notice of this motion via mail and electronic service. HTG is a non-party and must be served via personal service. There is no evidence that HTG consented to other methods of service. Because Defendant failed to personally serve the subpoena on HTG, Defendant’s motion is continued to allow the appropriate method of service.