Judge: Layne H. Melzer, Case: 2022-01254502, Date: 2023-01-05 Tentative Ruling

Petitioner State Farm Mutual Automobile Insurance Company

Motion - To Issue Foreign Subpoena and Commission by Court to Bradley Williams, M.D.

Petitioner’s Motion to Issue Foreign Subpoena and Commission by Court to Bradley Williams, M.D., is denied without prejudice.

In uninsured motorist claim cases, the Insurance Code generally provides for discovery by deposition “without leave of court.” (Ins. Code § 11580.2, subd. (f)(3).) However, the deponent must be served with a deposition subpoena. (Code Civ. Proc. § 2025.280, subd. (b).) Under the Discovery Act, “[a]ny party may obtain discovery by taking an oral deposition, as described in Section 2025.010, in another state of the United States, or in a territory or an insular possession subject to its jurisdiction.” (Code Civ. Proc., § 2026.010, subd. (a).) “If the deponent is not a party to the action or an officer, director, managing agent, or employee of a party, a party serving a deposition notice under this section shall use any process and procedures required and available under the laws of the state, territory, or insular possession where the deposition is to be taken[.]” (Code Civ. Proc., § 2026.010, subd. (c).) If such a commission is requested, “the clerk of the court shall issue a commission authorizing the deposition in another state or place,” without requiring a “noticed motion or court order.” However, if the sister state requires a “court order,” the commission “may be obtained by ex parte application.” (Code Civ. Proc., § 2026.010, subd. (f).)

Here, the motion is not accompanied by any evidence, e.g., a declaration, explaining why the requested commission should be issued. Aside from explaining that the deponent, Bradley Williams, M.D. is a “third party medical provider,” Petitioner presents absolutely no facts showing why the deponent’s records are being compelled by subpoena. (See Dow Chemical Co. v. Superior Court (1969) 2 Cal.App.3d 1, 8 [trial court did not err in denying issuance of commission to take deposition of plaintiff’s expert where petitioner failed to make any factual showing for the deposition; “the burden is upon petitioner to make a clear showing in this court that the trial court abused its discretion in refusing such order”].) Thus, the Court denies this motion, without prejudice to Petitioner making a proper showing for the commission to Dr. Williams.

As explained, above, Petitioner can come in ex parte for such an order. The same is true for the other six court-ordered commissions Petitioner is seeking. Although Petitioner may be subject to multiple filing fees, the request for each commission can be combined in one properly supported application.

Petitioner shall give notice of the ruling.