Judge Jill Feeney, Case 21STCV30940 2023-01-26 Tentative Ruling

This is an action for negligence arising from a vehicle collision which took place in September 2020. Plaintiff Avanes Molhemi filed his Complaint against Defendants Maurice Nipp and Prima Die Company, Inc. on August 20, 2021.

Plaintiff moves to quash the subpoena Defendants served on Dr. Alex Avila on the grounds that Dr. Avila is a retained expert whose work is protected under work product privilege. Plaintiff also argues that Plaintiff’s records related to his mental status are irrelevant because he stipulated not to seek damages for psychological injuries under Code Civ. Proc., section 2032.320(b). Plaintiff also seeks sanctions.

Plaintiff argues that sanctions against Defendants are warranted because Defendants’ counsel refused to withdraw the subpoena before Plaintiff made this motion and because Defendants’ counsel failed to sufficiently meet and confer.

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 provides that “the court may in its discretion award the amount of reasonable expenses incurred in making or opposing [a motion to quash], 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.” (Code Civ. Proc. section 1987.2(a).)

Plaintiff moves for orders quashing Defendants’ subpoena issued to Dr. Alex Avila on the grounds that his work is protected under work product privilege. Defendants represent in their opposition that they withdrew the subpoena. Plaintiff’s motion is denied.

With respect to sanctions, the Court declines to award either party sanctions. Plaintiff was justified in making the motion because Dr. Avila is a retained expert witness and not a treating physician and informed Defendants’ counsel repeatedly. (Motion, Exh. 4,5.) Defendants’ counsel was also justified in opposing this motion because she withdrew the subpoena and Plaintiff’s counsel refused to withdraw this motion. (Opposition, Exh. K.) The parties’ communications also show that Plaintiff’s counsel mistakenly informed Defendants’ counsel that Dr. Avila was a treating physician, which gave rise to this dispute in the first place. (Motion, Exh. 4; Opp. Exh. 4.) Because both sides were justified in making and opposing this motion, sanctions are denied.