Judge Jill Feeney, Case Number: 22STCV34273, Date: 2023-12-04 Tentative Ruling

This is an action for defamation, false light, and intentional infliction of emotional distress. Plaintiff alleges that he was enrolled in the Stella Adler Studio of Acting in January 2021. A mutual friend introduced Plaintiff to Defendant Romich in September 2021 because Defendant wanted to meet him. Despite Plaintiff being an openly homosexual man, Defendant aggressively pursued a relationship with Plaintiff. Plaintiff agreed to have lunch with Defendant out of respect for their mutual friend. Plaintiff discovered that Defendant had many pictures of him saved on her phone. When Plaintiff asked Defendant why she wanted to be an actor, she responded that she enjoyed fabricating stories and was a compulsive and pathological liar. Defendant refused to part company with Plaintiff after the lunch and persisted in asking to see where Plaintiff lived until he relented and allowed her to drive him home. When they arrived at Plaintiff’s home, Defendant attempted to kiss him and told him she wanted to be intimate with him. Plaintiff unequivocally informed Defendant that he was only interested in men and that he had a date that evening. Defendant became upset and threatened Plaintiff that he would regret it unless he cancelled the date and spent the evening with her. After Plaintiff agreed to go to a classmate’s party with Defendant, Defendant drove Plaintiff to his date. Plaintiff forgot to text Defendant about the party. Defendant continued to romantically pursue Plaintiff. In October 2021, Plaintiff learned that Defendant began telling others that Plaintiff sexually assaulted her following their lunch, which caused him to be expelled from the school.

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., section 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., section 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., section 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., section 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., section 2020.240.)¿A motion to compel compliance with a deposition subpoena must be made within 60 days after completion of the deposition record, the date objections are served, or the date specified for production. (Code Civ. Proc., section 2025.480, subd., (b); Board of Registered Nursing v. Sup.Ct. (Johnson & Johnson) (2021) 59 CA5th 1011, 1032-1033.)

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.”

Here, Defendant moves to compel Plaintiff’s healthcare provider, Exodus Recovery (“Exodus”), to comply with the deposition subpoena issued on June 1, 2023. (Drye Decl., ¶¶3-4.) Defendant’s counsel testifies that on June 23, 2023, Exodus objected to the subpoena, arguing it could not release the records without signed authorization from Plaintiff. (Id., ¶6.) Plaintiff did not respond to Defendant’s meet and confer requests on the issue. (Id., ¶¶7-11.)

The Court cannot compel plaintiff to sign an authorization for release of medical records because it is not a permitted method of discovery. Case law on this particular issue is limited and that which does exist is not clear. For example, in Miranda v. 21st Century Ins. Co. (2004) 117 Cal.App.4th 913, the appellate court upheld the dismissal of an action where the plaintiff failed to comply with the court’s order to sign an authorization for release of records. (Id. at pp. 918-919.) However, in a footnote, the court stated it was not clear why the defendant moved to compel an authorization rather than compel compliance with a subpoena. (Id. at p. 918, fn. 2.) Defendant does not cite any authority, and the Court is unaware of any, that specifically gives the court express authority under the Discovery Act to compel a plaintiff to sign an authorization for release of records.

The Court does have authority to compel a non-party’s compliance with a proper deposition subpoena for records. A provider of health care shall not disclose medical information regarding a patient of the provider of health care without first obtaining an authorization, except where compelled by a court pursuant to an order of that court or by a party to a proceeding pursuant to a subpoena, subpoena duces tecum, notice to appear served pursuant to Section 1987 of the Code of Civil Procedure, or any authorizing discovery in a proceeding before a court or administrative agency. (Civ. Code, section 56.10, subds. (a), (b)(1), (b)(3).)