Judge Kerry Bensinger, Case 20STCV34715 2023-04-28 Tentative Ruling

On September 11, 2020, Plaintiff Holly McKay (“Plaintiff”) filed this action against Defendant Samuel Nicholas Wechsler (“Defendant”) arising from a September 15, 2018, motor vehicle and electric scooter accident.

On October 11, 2022, Defendant filed a motion to reopen all discovery and reinstate the trial date of May 16, 2023. On December 8, 2022, the Court ordered the parties to formulate a joint discovery plan to allow the Court to determine whether a trial continuance to May 16, 2023, was necessary. The parties submitted a joint declaration regarding the discovery plan on December 21, 2022. After oral argument and at the request of the parties, the Court continued trial and reopened all discovery to allow the parties to move forward with their discovery plan.

On January 31, 2023, Defendant issued 27 Deposition Subpoenas for Production of Business Records to Plaintiff’s medical providers. Plaintiff objects, arguing that the Subpoenas are unreasonable and oppressive and exceed the scope of the Joint Discovery Plan. Plaintiff now moves for an order quashing 20 of the subpoenas. In the notice of motion, Plaintiff also seeks sanctions against Defendant and his counsel.

A deposition subpoena may request (1) only the attendance and testimony of a deponent, (2) only the production of business records for copying, or (3) the attendance and testimony, as well as the production of business records. (Code Civ. Proc., § 2020.020.) The court, upon motion or the court’s own motion, “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 orders as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” (Code Civ. Proc., § 1987.1, subd. (a).) “A deposition subpoena that commands only the production of business records for copying shall designate the business records to be produced either by specifically describing each individual item or by reasonably particularizing each category of item . . .” (Code Civ. Proc., §2020.410, subd. (a).)

Code of Civil Procedure section 2023.030 is a general statute authorizing the Court to impose discovery sanctions for “misuse of the discovery process,” which includes (without limitation) a variety of conduct such as: making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to discovery; and unsuccessfully and without substantial justification making or opposing a motion to compel or limit discovery. (Code Civ. Proc., § 2023.010.)

If sanctions are sought, Code of Civil Procedure section 2023.040 requires that the notice specify the identity of the person against whom sanctions are sought and the type of sanction requested, that the motion be supported in the points and authorities, and the facts be set forth in a declaration supporting the amount of any monetary sanction.

If the court finds that a party has unsuccessfully made or opposed a motion to compel responses to interrogatories or inspection demands, the court “shall impose a monetary sanction . . . unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., §§ 2030.290, subd. (c), 2031.300, subd. (c).)¿¿ ¿

Sanctions against counsel:¿ The court in Kwan Software Engineering, Inc. v. Hennings (2020) 58 Cal.App.5th 57, 81 (Hennings) noted that discovery sanctions against an attorney are governed by a different standard than sanctions against a party:

By the terms of the statute, a trial court under section 2023.030(a) may not impose monetary sanctions against a party’s attorney unless the court finds that the attorney “advised” the party to engage in the conduct resulting in sanctions. (§ 2023.030(a); Ghanooni v. Super Shuttle (1993) 20 Cal.App.4th 256, 261, 24 Cal.Rptr.2d 501.)¿ “Unlike monetary sanctions against a party, which are based on the party’s misuse of the discovery process, monetary sanctions against the party’s attorney require a finding the ‘attorney advis[ed] that conduct.’ ” (Ibid.) “It is not enough that the attorney’s actions were in some way improper.” (Corns v. Miller (1986) 181 Cal.App.3d 195, 200, 226 Cal.Rptr. 247 (Corns).) Because an attorney’s advice to a client is “peculiarly within [his or her] knowledge,” the attorney has the burden of showing that he or she did not counsel discovery abuse. (Ibid.) Accordingly, when a party seeking sanctions against an attorney offers sufficient evidence of a misuse of the discovery process, the burden shifts to the attorney to demonstrate that he or she did not recommend that conduct. (Id. at pp. 200–201, 226 Cal.Rptr. 247; Ghanooni, at p. 262, 24 Cal.Rptr.2d 501.)¿¿

The parties dispute what is permitted under the Joint Discovery Plan. The Plan provides, in relevant part:

As ordered on November 7, 2022, at the hearing on Plaintiff’s Motion for Reconsideration of Defendant’s Motion to Reopen Limited Discovery and Compel Defense Medical Examinations and Defendant’s Motion to Reopen All Discovery and Reinstate the Previous Trial Date, the parties, through their counsel of record, have met and conferred telephonically on November 29, 2022, and discussed the following discovery plan to address Defendant’s recent association of new counsel. The proposed discovery plan is as follows:

1. Defendant will be permitted to serve one set of Special Interrogatories (Set 2) (not to exceed 25 interrogatories), one set of Requests for Production (Set 2) (not to exceed 25 Requests for Production), and one set of Requests for Admission (not to exceed 25 Requests for Admission) on Plaintiff no later than December 30, 2022, for identification and production of Plaintiff’s employment records supporting her claims for loss of income and earning capacity; information regarding Plaintiff’s subsequent motor-vehicle accidents on February 7, 2019 and April 20, 2021; Plaintiff’s medical records from 2021 to the present regarding seizures, diagnosis of seizures, and prescription of anti-seizure medication; and the identification of Plaintiff’s psychotherapists, substance-abuse treatment facility where Plaintiff received treatment in February 2022, and all health insurance companies that provided coverage to Plaintiff from the date of the subject incident to the present.

3. Following Plaintiff’s providing substantive responses to the Special Interrogatories (Set 2), Requests for Production (Set 2), and Requests for Admission, Defendant will be permitted to serve subpoenas duces tecum on (1) all identified insurance companies for the claim files for Plaintiff’s subsequent motor-vehicle accidents on February 7, 2019 and April 20, 2021, (2) all identified health insurance companies who provided coverage to Plaintiff from the date of the subject incident to the present, (3) all medical treaters and treatment facilities previously identified in Plaintiff’s discovery responses and deposition testimony, (4) all counselors or psychotherapists identified by Plaintiff in her responses to Special Interrogatories (Set 2) and Requests for Production (Set 2), and (5) all identified employers of Plaintiff, to the extent Plaintiff does not possess and has not produced any responsive documents regarding her employment. Plaintiff shall be entitled to order copies of the subpoenaed documents or request production from Defendant upon receipt of the documents through Requests for Production.

Plaintiff objects[1] to Defendant’s deposition subpoenas on the basis that they exceed the scope of the discovery plan. Specifically, Plaintiff argues that the subpoenas seek billing records from Plaintiff’s medical providers from September 15, 2018 to present when the Joint Discovery Plan authorizes the discovery of such records from 2021 to present only.

Defendant points out the dispute centers on the interpretation of the Joint Discovery Plan. Further, Defendant argues that Plaintiff’s interpretation of the Joint Discovery Plan is erroneous as there is no time limitation on the subpoenas from 2021 to present.

Upon review of the Joint Discovery Plan, the Court finds that the parties did not agree to a time limitation of 2021 to present. Paragraph 3 states, in relevant part, “Following Plaintiff’s providing substantive responses to the Special Interrogatories (Set 2), Requests for Production (Set 2), and Requests for Admission, Defendant will be permitted to serve subpoenas duces tecum on … (3) all medical treaters and treatment facilities previously identified in Plaintiff’s discovery responses and deposition testimony.” There is no express limitation on time. And, the use of the word “previously” necessarily refers to discovery that Defendant has already propounded and to which Plaintiff has already responded, which suggests that no such time limitation regarding the at-issue subpoenas. The Court also notes that all discovery was reopened so that the parties may move forward with their discovery plan. (Minute Order, 12/22/22.)

Plaintiff argues that the subpoenas are limited to discovery of records from 2021 to present. Plaintiff arrives at this conclusion by pointing to Paragraph 1 of the Joint Discovery Plan, which states, in part, “Defendant will be permitted to serve one set of Special Interrogatories (Set 2) …, one set of Requests for Production (Set 2) …, and one set of Requests for Admission … on Plaintiff …, for … Plaintiff’s medical records from 2021 to the present regarding seizures, diagnosis of seizures, and prescription of anti-seizure medication.” However, Paragraph 1 relates to the service of discovery requests. Paragraph 3, which authorizes the service of subpoenas, does not contain any such time limitation.

Moreover, the time period of September 15, 2018 to present, as requested by the subpoenas, are reasonable and calculated to the discovery of relevant information. By filing this Complaint and alleging injuries, Plaintiff has put her medical condition in question. The alleged incident and injuries arising therefrom occurred September 15, 2018. Since that time, Plaintiff has received treatment for those injuries and other conditions. Defendant is entitled to discovery of those relevant records.

Plaintiff requests sanctions against Defendant. Because the Court has found that Defendant has successfully opposed this motion, Plaintiff’s request is DENIED.

Defendant also requests sanctions against Plaintiff. Because the terms of the Joint Discovery Plan were not sufficiently clear, the Court finds that Plaintiff’s motion was not made in bad faith or without substantial justification. Accordingly, Defendant’s request for sanctions is DENIED.

Plaintiff’s motion is denied. Audio RX, Andrew Berman, M.D., Caduceus Medical Group – Business Office, Caduceus Medical Group, California Neuromodulation and Brain Health (Franc, M.D., Daniel), CNS, Paul Corona, M.D., CVS Pharmacy, Inc., Hoag Hospital – Billing, Hoag Hospital – Radiology, Hoag Hospital, International Orthopedic Center, Manisha Korb, M.D., Mahyar Okhovat, M.D., St. Joseph Hospital, UCLA Faculty Practice, UCLA Medical Center (Santa Monica) – Billing, UCLA Medical Center (Santa Monica) – Radiology, UCLA Medical Center (Santa Monica), and Sonnee D. Weedn, Ph.D. are ordered to produce documents response to Defendant’s subpoena.

On March 3, 2023, Defendant filed this motion to continue trial to a date in December of 2023 because Defendant has been unable to obtain documents, medical records and depositions necessary to prepare for trial. Defendant has filed motions to compel Plaintiff’s compliance with the Joint Discovery Plan, which is set for hearing on September 20, 2023.

Trial is scheduled for May 30, 2023. This is the fifth request for a trial continuance in this matter.

California Rules of Court, rule 3.1332, subdivision (b) outlines that “a party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered.”

Under California Rules of Court, rule 3.1332, subd. (c), the Court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include “a party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts.” The Court should consider all facts and circumstances relevant to the determination, such as proximity of the trial date, prior continuances, prejudice suffered, whether all parties have stipulated to a continuance, and whether the interests of justice are served. (Cal. Rules of Court, rule 3.1332, subd. (d).)

Notwithstanding any other law and unless ordered otherwise by a court or otherwise agreed to by the parties, a continuance or postponement of a trial¿or arbitration¿date extends any deadlines that have not already passed as of March 19, 2020, applicable to discovery, including the exchange of expert witness information, mandatory settlement conferences, and summary judgment motions in the same matter. The deadlines are extended for the same length of time as the continuance or postponement of the trial date. (Code Civ. Proc., § 599.)

Defendant argues good cause exists for a trial continuance because Plaintiff has failed to produce any documents pursuant to the Joint Discovery Plan and has improperly objected to Defendant’s subpoenas for medical records.

Plaintiff argues that Defendant’s motion should be denied because Defendant’s lack of diligence in conducting discovery has already resulted in five trial continuances. However, given the Court’s disposition of Plaintiff’s motion to quash and that the parties have agreed to a Joint Discovery Plan which has yet to be realized, the Court finds good cause exists to continue the trial.

Trial is continued from ¿¿May 30, 2023¿¿ to ¿December 7, 2023¿ at 8:30 a.m. in Department 27 of the Spring Street Courthouse. The final status conference is continued from ¿May 16, 2023¿ to ¿November 22, 2023¿ at 10:00 a.m. in Department 27 the Spring Street Courthouse. Pursuant to Code of Civil Procedure section 599, all discovery cut-off dates, all pretrial deadlines including discovery, expert, and motion cut-off dates are set to the new trial date of December 7, 2023.

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.

Hon. Kerry Bensinger

Judge of the Superior Court

[1] In opposition, Defendant asserts that the deposition subpoenas for Dr. Hormos Zahari (International Orthopedic Center), Dr. Paul Corona and Dr. Okhovat have been withdrawn. (Dondanville Decl. ¶10, Ex. E.) Plaintiff contends that Defendant withdrew the subpoenas only to reissue them. As it is not clear that Defendant withdrew any of the at-issue subpoenas, the Court considers the motion to quash all twenty subpoenas.