Judge: Kerry Bensinger, Case: 22STCV38701, Date: 2023-05-05 Tentative Ruling

Case Number: 22STCV38701    Hearing Date: May 5, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA 

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

                    I.INTRODUCTION 

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.

On April 4, 2023, Petitioner filed a motion compelling Robert I. Spector, M.D.’s

(“Spector”) compliance with deposition subpoena for the production of business records and requesting monetary sanctions pursuant to Code of Civil Procedure sections 2020.410, 1985.3, 1991 and 2023.030 subdivision (a).

            The motion is unopposed.

                 II.LEGAL STANDARD 

Code of Civil Procedure sections 2020.010, subdivision (a)(3) and 2020.410 allow a party to seek the production of business records from a non-party by deposition.

Pursuant to section Code of Civil Procedure section 2020.410, subdivision (d), a subpoena for the production of records for a consumer’s personal records that is directed to a witness must be accompanied by a copy of the proof of service of the notice to the consumer or by the consumer’s written authorization to release personal records. (Code Civ. Proc., § 2020.410, subd. (d); see also Code Civ. Pro., § 1985.3, subds. (b), (c), (e).)

The court has the authority to impose a monetary sanction against a party engaging in the misuse of the discovery process, including failing to respond or to submit to an authorized method of discovery.  (Code Civ. Pro., §§ 2023.030 subd. (a) and 2023.010 subd. (d).)  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 court order forfeits a sum of $500.00.  (Code Civ. Proc., § 1992.)

              III.DISCUSSION 

(a)   Compel Deposition Subpoena

To evaluate Respondent’s alleged right shoulder claims, on September 30, 2022, Petitioner caused to be issued subpoenas to Spector (a nonparty) seeking Respondent’s medical and billing records from September 1, 2021, to present.  (Thomas Decl., ¶ 7; Exhibit C.)  Despite service of the records subpoenas on Spector’s office location on October 13, 2022, Spector remains in noncompliance.  (Thomas Decl., ¶ 8; Ex. D.)  On November 29, 2022 and March 15, 2023, Petitioner’s counsel corresponded with Spector seeking compliance. (Thomas Decl., ¶ 9; Ex. E.)  However, as of the date Petitioner’s counsel signed his declaration for the instant motion, Spector has failed to respond to the subpoena. (Thomas Decl., ¶ 10.) 

Given Respondent’s alleged physical injury to her right shoulder, and Petitioner’s purpose in issuing a subpoena to Spector (to produce Respondent’s medical and billing records), the Court finds that there is good cause to grant the motion.  Further, attached to the submitted copy of the subpoena is proof of service of the notice to the consumer.  (Thomas Decl.; Exhibit C.)  Accordingly, Petitioner’s motion to compel Spector’s compliance with deposition subpoena for the production of business records is GRANTED.

The Court orders Spector to comply with Petitioner’s deposition subpoena, within 10 days of the date of this order.

(b)  Sanctions

Petitioner requests monetary sanctions of $984.15 against Spector, consisting of 2 hours to prepare the motion, 1.5 hours to review opposition and prepare the reply, and 1 hour to attend the hearing, all at the hourly rate of $205.00 per hour, plus $60.00 filing fee and $1.65 credit card processing fee.  (Thomas Decl., ¶ 13.)  Also, Petitioner requests forfeiture fees in the amount of $500.00 against Spector.  (Thomas Decl., ¶ 14.) 

The Court does not find the imposition of sanctions is unjust or that Spector acted with substantial justification.  The Court finds forfeiture fees under section 1992 warranted.  Accordingly, Petitioner’s request for monetary sanctions and forfeiture fees is GRANTED. 

The Court imposes monetary sanctions against Spector in the amount of $676.65 consisting of 2 hours to prepare to motion and 1 hour to attend the hearing, all at the hourly rate of $205.00 per hour, plus a $60.00 filing fee and $1.65 processing fee, to be paid within 10 days of the date of this order.  Also, the Court imposes forfeiture fees against Spector in the amount of $500.00, to be paid within 10 days of the date of this order.

              IV.CONCLUSION 

Petitioner’s motion to compel compliance with deposition subpoena for the production of

business records and request for sanctions is GRANTED.

Spector is ORDERED to comply with Petitioner’s deposition subpoena, within 10 days of the date of this order.

Spector is ORDERED to pay monetary sanctions in the amount of $676.65, within 10 days of the date of this order.

Spector is ORDERED to pay forfeiture fees in the amount of $500.00, within 10 days of the date of this order.

Moving party to give notice. 

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. 

Dated this 5th day of May 2023