Judge Layne H. Melzer, Case 22-01256105 2022-08-04 Tentative Ruling

Judge: Layne H. Melzer, Case: 22-01256105, Date: 2022-08-04 Tentative Ruling

Pltf. Mercury Insurance Company
Motion to Compel Production

Petitioner Mercury Insurance Company’s motion for order compelling 3^rd party East West Medical Group to produce documents pursuant to its subpoena is granted.

East West Medical Group has been personally served with the motion and has not objected.

Ins. Code § 11580.2(f) provides that, in the event of a dispute between an insurer and insured (concerning an uninsured or underinsured motorist claim), the determination as to whether the insured is entitled to recover damages and the amount of such damages “shall” be made by arbitration. (Rutter, PI, §7:293.5, citing Ins.C. § 11580.2(f).) The parties may agree to resolve a UM dispute by methods other than UM arbitration, but the statute gives to insurer and insured the right to compel arbitration if either so elects. (Id., at §7:293.5g. citing Mercury Ins. Group v. Sup.Ct. (Wooster) (1998) 19 C4th 332, 346-348.) Thus, the parties may choose to litigate the insured's entitlement to and amount of damages (as well as other issues). (Id.)

Discovery procedures available to the parties in uninsured motorist cases are basically the same as those available in CA civil litigation, subject to some specific limitations. (Rutter, PI §7:301, citing Ins.C. § 11580.2(f) and Mallard v. Progressive Choice Ins. Co. (2010) 188 CA4th 531, 540, 543-544.) Jurisdiction to resolve discovery disputes (including the issuance of any orders to compel discovery) is vested in the superior court (a) in the proper county for the filing of a lawsuit against the uninsured motorist for bodily injury arising from the accident or (b) in any county specified in the policy as a proper county for arbitration or action on the policy. (Rutter PI §7:304.6, citing Ins.C. § 11580.2(f)(1), (2) and Miranda v. 21st Century Ins. Co. (2004) 117 CA4th 913, 921-926.)

The party seeking court assistance in connection with a discovery dispute need not file and serve on the other party a formal complaint. An “application to commence discovery” coupled, e.g., with a motion to compel compliance, may be filed with the court and, where the party against whom discovery is sought is represented by counsel, served upon counsel. (Rutter PI §7:304.7, citing CCP § 1015, 1012, and Miranda v. 21st Century Ins. Co., supra, 117 CA4th at 927-928.)

Miranda v. 21st Century Ins. Co., supra 117 Cal.App.4th at 924, noted that the contractual arbitration statute, giving an arbitrator the statutory power to exercise remedies under the Discovery Act, must be reconciled, if possible, with the uninsured motorist law, which makes the Discovery Act applicable, and requires that whenever it makes reference to a court, the court that has jurisdiction shall be the superior court. The DCA there concluded that: “the court had the power to rule on the discovery dispute. And because we conclude the Legislature could not have intended the arbitrator and the court to possess concurrent power, the uninsured motorist law grants the superior court the exclusive jurisdiction to hear discovery matters arising under uninsured motorist arbitrations.” (Id. at 926.) Ins. Code §11580.2(f)(1) thus vests exclusive jurisdiction in the superior court as to discovery disputes in an underinsured motorist arbitration.

The pending petition does not involve arbitration but simply the investigation of an insured’s claim. However, section 11580.2 includes the following language:

The arbitration shall be deemed to be a proceeding and the hearing before the arbitrator shall be deemed to be the trial of an issue therein for purposes of issuance of a subpoena by an attorney of a party to the arbitration under Section 1985 of the Code of Civil Procedure. Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure shall be applicable to these determinations, and all rights, remedies, obligations, liabilities and procedures set forth in Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure shall be available to both the insured and the insurer at any time after the accident, both before and after the commencement of arbitration, if any…

Ins. Code, § 11580.2(f) (emphasis added).

Where employee or consumer records are subpoenaed from a third party, notice must be served on the employee/consumer 5 days before the subpoena is served on the custodian of records and at least 10 days before the production date. Code Civ. Proc. § 1985.6(b)(3). Proof of service on the “consumer” must accompany the depo subpoena served on the records custodian. Code Civ. Proc. §§ 2020.410(d), 2020.510(c). Failure to comply with any of these requirements by itself invalidates the service, so that the custodian is under no duty to produce the records sought by the subpoena. Code Civ. Proc. § 1985.6(k).

Here, Petition has complied with the requirements for subpoenaing records from a nonparty. As a result, East West Medical Group is ordered to produce the requested documents.