Judge Kerry Bensinger, Case 22STCV38701 2023-01-18 Tentative Ruling

This action arises from a three-vehicle accident that occurred on October 30, 2019. Respondent Ashley Fisher (“Respondent”) made a claim against her UM/UIM policy with Petitioner Geico General Insurance Company (“Petitioner”) for excess damages related to personal injuries including to the right shoulder.

Petitioner moves for an order compelling Prohealth Advanced Imaging’s (“Prohealth”) compliance with deposition subpoenas for the production of business records pursuant to §§ 2020.410 and 1985.3. Petitioner requests monetary sanctions of $984.15 pursuant to CCP §§ 1991 and 2023.030(a), and forfeiture of monies in the statutory amount of $500.00 pursuant to CCP § 1992. The motion is set to be heard on January 18, 2023. Having reviewed Respondent’s unopposed motion, the Court rules as follows.

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 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 of Civ. Proc., § 2020.020.) A deposition subpoena for the production of business records only requires that the deposing party designate the business records to be produced by specifically describing each individual item, or by reasonably particularizing each category item, required to be produced. (Code Civ. Proc., §¿2020.410(a).) The subpoena must be directed at the custodian of records or another person qualified to certify the records and must command compliance with the subpoena no earlier than 20 days after the issuance, or 15 days after the service, whichever is later. (Id., at (c).) The subpoena need not be accompanied by an affidavit or declaration showing good cause for the production. (Ibid.)

A deposition subpoena is enforceable under Code of Civil Procedure section 1987.1. (Code Civ. Proc., § 2020.030.) After notice and opportunity to be heard, the Court may issue an order quashing the subpoena entirely, modifying it, or directing compliance with it upon terms and conditions as the Court may declare. (Code Civ. Proc., § 1987.1(d).)

The Court may impose a monetary sanction on a party engaging in the misuse of the discovery process to pay the reasonable expenses, including attorney’s fees, incurred by anyone because of that conduct. (Code Civ. Proc., § 2023.030(a).) Misuse of discovery includes “failing to respond or submit to an authorized method of discovery.” (Code Civ. Proc. §¿2023.010(d).) Further, disobedience to a subpoena “may be punished as a contempt by the Court issuing the subpoena.” (Code Civ. Proc. §¿1991.) “A person failing to appear pursuant to a subpoena or a Court order also forfeits to the party aggrieved the sum of five hundred dollars ($500.), and all damages that he or she may sustain by the failure of the person to appear pursuant to the subpoena.” (Code Civ. Proc. §¿1992.)

On January 21, 2022, Petitioner received responses to discovery from Respondent identifying Prohealth as the facility having performed an MRI of Respondent’s right shoulder on January 31, 2020. (Declaration of Thomas ¶ 4.) Prohealth also performed an MR arthrogram of Respondent’s right shoulder on October 13, 2020. (Id., at ¶ 5; Exhibit “A”.) On September 30, 2022, Petitioner caused to be issued subpoenas to Prohealth to obtain Respondent’s records. (Id., at ¶ 6; Exhibit “B”.) To date, Prohealth has failed to provide the requested records in response to the subpoenas for imaging, despite receipt of payment and Petitioner’s repeated requests to comply. (Id., at ¶ 7-11.) Respondent requests monetary sanctions against Prohealth in the amount of $984.15 calculated as follows: hourly rate of $205 for 4.5 hours of work (2 hours to prepare the motion, 1.5 hours to review opposition and prepare reply, 1 hour for court appearance) plus filing fee of $60.00 and credit card processing fee of $1.65. (Id., at ¶14.) Respondent also requests forfeiture of monies in the statutory amount of $500.00 against Prohealth. (Id., at ¶ 15.)

The Court finds that Prohealth has failed to comply with its discovery obligation. In addition, Prohealth has failed to file an opposition and explain to the Court why it failed to provide the requested imaging. Respondent has also failed to file an opposition to the motion. The deadline for filing and serving any opposition to the motion was January 5, 2023, nine court days before the hearing on January 18, 2023. Accordingly, the Court orders Prohealth to comply with Petitioner’s subpoena. The Court orders Prohealth to pay monetary sanctions of $676.65 calculated as follows: hourly rate of $205 for 3 hours of work (2 hours to prepare the motion and 1 hour for court appearance) plus filing fee of $60.00 and credit card processing fee of $1.65. The Court orders Prohealth to pay forfeiture fees of $500.00.

The Court orders Prohealth to pay sanctions of $676.65 and forfeiture fees of $500.00 within ten (10) days of this ruling.

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