Judge: Kerry Bensinger, Case: 19STCV06544, Date: 2023-10-16 Tentative Ruling

Case Number: 19STCV06544    Hearing Date: October 16, 2023    Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:     October 16, 2023                               TRIAL DATE:  December 1, 2023

CASE:                                Colin Andrew Hancock v. Barbara Dybnis, et al.

CASE NO.:                 19STCV06544

MOTION FOR COURT ORDER AUTHORIZING RELEASE OF DOCUMENTS

MOVING PARTY:               Defendant Barbara Dybnis

RESPONDING PARTY:     Plaintiff Colin Andrew Hancock

I.          INTRODUCTION

            On February 27, 2019, Plaintiff, Colin Andrew Hancock, initiated this action against Defendant, Barbara Dybnis, arising from an October 22, 2018 motor vehicle accident involving a motorcycle.  

            On July 23, 2021, Defendant served a deposition subpoena for the production of business records (the “Subpoena”) on nonparty Christensen Hsu Sipes, LLP and/or Elizabeth Trent Schaus (hereafter, “CHS”).  The Subpoena seeks documents regarding a 2015 motor vehicle accident involving Plaintiff and which resulted in a lawsuit captioned Hancock v. Cosco Fire Protection, Inc. (LASC Case No. BC663709) (the “Cosco Fire Action”).  Some of the injuries that Plaintiff suffered in the 2015 accident are related to the injuries suffered in the accident that is the subject of this litigation.  CHS handled the defense of Cosco Fire Protection, Inc. in the Cosco Fire Action.  CHS objected to the subpoena.

            On December 9, 2021, Defendant filed a motion to compel CHS to produce documents pursuant to the Subpoena.  The Court denied the motion without prejudice due to defects with service of the motion.  The Court also noted that parts of the Subpoena may not be enforceable because CHS was not the “custodian” of some of the documents that Defendant sought, such as deposition transcripts and medical records.  The Court also denied Defendant’s alternative request to compel Plaintiff to authorize the release of non-privileged documents from CHS.

            On August 15, 2023, Defendant re-filed the motion to compel CHS to produce documents pursuant to the Subpoena.  Defendant corrected the defect with service by personally serving CHS with this motion. 

            Nonparty CHS has filed the Declaration of Michael D. Hirsch in opposition. 

            Defendant replies.

II.        LEGAL STANDARDS

            A party is entitled to obtain discovery regarding any non-privileged matter that is relevant to the subject matter of the action.  (Code of Civil Procedure § 2017.010.)  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.)  If a nonparty deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.¿ (Code Civ. Proc. §§ 2024.480, 2025.480.)¿¿¿ 

            If the nonparty deponent is a natural person, any person may serve the subpoena by personal delivery of a copy of it to that person.¿ (Code Civ. Proc., § 2020.220, subd. (b)(1).)¿ Personal service of any deposition subpoena is effective to require the personal attendance and testimony of the nonparty deponent, if the subpoena so specifies.¿ (Code Civ. Proc., § 2020.220, subd. (c)(1).)¿¿¿ 

            “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.)¿¿ 

III.       DISCUSSION

            Evidence Code section 1561 requires, in relevant part, that the business records sought by a deposition subpoena “be accompanied by the affidavit of the custodian or other qualified witness, stating ... the affiant is the duly authorized custodian of the records or other qualified witness and has authority to certify the records.”  (Evid. Code, 1561, subd. (a)(1).)  A deposition subpoena for business records is to be “directed to the custodian of those records or another person qualified to certify the records.”  (Cooley v. Superior Court (2006) 140 Cal.App.4th 1039, 1044, citing Code Civ. Proc., § 2020.410, subd. (c).)

            Defendant seeks to compel nonparty CHS to comply with a subpoena for business records.  The Subpoena seeks records from the Cosco Fire Action, including medical records, deposition transcripts, court transcripts, and court records.  It is uncontested that CHS is not the “custodian” of these, and possibly other records, sought by the Subpoena.  Because CHS is not the custodian of records, under Cooley, supra, Defendant is not entitled to an order compelling CHS to comply with the entirety of the Subpoena.  

            In Cooley, the appellate court considered the very issue presented here: whether a nonparty may be compelled to produce business records pursuant to a properly served subpoena for business records when the nonparty did not prepare or generate the records sought.  The Cooley court held enforcement of such a subpoena is error.  This is so because a nonparty who merely possesses business records obtained from some other source cannot execute an affidavit required by Evidence Code section 1561.  Business records sought by a deposition subpoena must “be accompanied by the affidavit of the custodian or other qualified witness, stating ... the affiant is the duly authorized custodian of the records or other qualified witness and has authority to certify the records.”  (Evid. Code, 1561, subd. (a)(1).)  The Cooley court reasoned that “the custodian of records or other qualified witness contemplated by Evidence Code section 1561 must also be able to attest to various attributes of the records relevant to their authenticity and trustworthiness.  As such, execution of a section 1561 affidavit is more than simply a clerical task.”  (Cooley, 140 Cal.App.4th at p. 1044.)

            Here, Defendant’s subpoena seeks the following records from CHS:

Any non-privileged documents related to the action/litigation ... entitled Colin Andrew Hancock v. Cosco Fire Protection, Inc. et al. filed on or about June 6, 2017 including, but not limited to, all pleadings, discovery, deposition transcripts, medical records, court transcripts/records and/or any non-privileged correspondence related to Colin Andrew Hancock.

(Kang Decl., Ex. B.)

            Here, CHS is not the custodian of records for deposition transcripts, medical records, court transcripts, or court records.   As such, CHS cannot provide the attestation under Evidence Code section 1561.  (Cooley, supra, 140 Cal.App.4th at pp. 1044.)  To the extent the Subpoena seeks business records that CHS did not produce or generate and for which it cannot provide a EC 1561 affidavit, the Court cannot compel CHS’s compliance with the Subpoena.

IV.       CONCLUSION

            Where CHS can provide non-privileged documents supported by an Evidence Code section 1561 affidavit, the motion to compel is granted.  Otherwise, the motion to compel is denied.  CHS is to provide any responsive documents within 30 days. 

            Defendant is to pay CHS for the costs related to producing documents responsive to the Subpoena, including CHS’s reasonable attorney’s fees related to sorting through the five boxes of documents to locate the responsive documents and costs of reproduction as discussed in CCP section 1563.  Because the subpoena is silent, as is the motion, with respect to electrically stored information, the scope of the Order does not include electronically stored information. 

Moving party to give notice. 

Dated:   October 16, 2023                                         ___________________________________

                                                                                    Kerry Bensinger

                                                                                    Judge of the Superior Court

            Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  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.