Judge Lee S. Arian, Case Number: 22STCV13456, Date: 2023-12-20 Tentative Ruling

MOVING PARTY: Petitioner Liberty Mutual Fire Insurance Company (“Petitioner”)

This action arises out of a motor vehicle accident occurring on September 15, 2015, in which Respondent was a passenger in a vehicle that was rear-ended by a third-party tortfeasor. (Motooka Decl., ¶ 3.) Respondent submitted a notice of claim for Underinsured Motorist Benefits against Petitioner and demanded compensation for medical expenses, wage loss, loss of earning capacity, and general damages. (Motooka Decl., ¶ 4.)

On April 22, 2022, Petitioner Liberty Mutual Fire Insurance Company (“Petitioner”) filed a petition to open an underinsured motorist discovery case against Gabor Szabo (“Respondent”). According to the petition, “Respondent has declined to undergo an independent medical examination meanwhile he is alleging continued pain for injuries sustained from the subject accident citing the accident is remote and an examination would be in bad faith and constitute harassment.” (Petition, 1:20-22.) The petition seeks “to compel . . . Respondent to undergo an independent medical examination and requires a case number to proceed.” (Petition, 1:23-24.)

On June 15, 2022, the Court adopted its tentative ruling and denied Petitioner’s motion to compel Respondent to submit to a neuropsychological examination without prejudice.

On October 28, 2022, Petitioner filed a motion to compel a neuropsychological examination of Respondent. On January 4, 2023, Petitioner filed a notice taking the motion to compel neuropsychological examination off-calendar.

On October 11, 2023, Petitioner filed a proof of service showing that Respondent was served with the petition via electronic transmission on April 22, 2022.

On May 31, 2023, Petitioner filed the following three unopposed discovery motions: (1) a motion for an order compelling William Chow, M.D. (“Chow”) to comply with the subpoena duces tecum served on July 28, 2021, and produce records related to Respondent as requested in the subpoena duces tecum or, alternatively, for an order to show cause as to why Chow should not be ordered to produce the requested documents (the “Chow Subpoena Motion”); (2) a motion for an order compelling Life Touch Healing Center (“Life Touch”) to comply with the subpoena duces tecum served on July 28, 2021, and produce records related to Respondent as requested in the subpoena duces tecum or, alternatively, for an order to show cause as to why Life Touch should not be ordered to produce the requested documents (the “Life Touch Subpoena Motion”); and (3) a motion for an order compelling Minh-Thu Le (“Le”) to comply with the subpoena duces tecum served on July 30, 2021, and produce records related to Respondent as requested in the subpoena duces tecum or, alternatively, for an order to show cause as to why Le should not be ordered to produce the requested documents (the “Le Subpoena Motion”)(collectively, the “Motions).[1]

Each of the Motions request sanctions in the amount of $1,012.00. The Court will address the Motions in this one ruling. The Court finds that the Motions raise identical arguments and are substantively identical to one another.

The Motions are all unopposed. Any opposition to the Motions was required to have been filed and served at least nine court days prior to the hearing. (Code Civ. Proc., § 1005, subd. (b).)

“For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement.” (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.) Generally, all unprivileged information that is relevant to the subject matter of the action is discoverable if it would itself be admissible evidence at trial or if it appears reasonably calculated to lead to the discovery of admissible evidence. (Schnabel v. Superior Court (1993) 5 Cal.4th 704, 711.)

“If a subpoena requires . . . the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person . . . may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms and conditions as the court shall declare, including protective orders.” (Code Civ. Proc., § 1987.1, subd. (a).) “[T]he court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” (Ibid.) A party to the action may bring a motion under Code Civ. Proc. § 1987.1(a). (Code Civ. Proc., § 1987.1, subd. (b)(1).)

“When a medical provider fails to comply with Section 1158 of the Evidence Code, in addition to any other available remedy, the demanding party may apply to the court for an order to show cause why the records should not be produced.” (Code Civ. Proc., § 1985.7.) “Any order to show cause . . . shall be served upon respondent in the same manner as a summons . . . [and] the court shall impose monetary sanctions pursuant to Section 1158 of the Evidence Code unless it finds that the person subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Ibid.)

“In making an order pursuant to a motion made . . . under Section 1987.1, the court may in its discretion award the amount of reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” (Code Civ. Proc., § 1987.2, subd. (a).)

A Deposition Subpoena for Production of Business Records was served on Chow on July 28, 2021; Chow disregarded the subpoena and did not respond. (Motooka Decl., ¶¶ 5-6; Exhibits A-B.) Chow is one of Respondent’s treatment providers. (Motooka Decl., ¶ 5.)

“Any and all documents, paper and digital records, any and all x-ray films, to include MRI films, CAT scans, myelograms, radiological images, ultrasounds and any other films specific to Gabor Szabo, either in hard copy or electronic and/or faxed. Please provide breakdown of films and or studies reflecting body parts, dates taken, number of films and or studies, with associated cost for approval prior to production., pertaining to the care, treatment, and examination of Gabor Szabo, born on January 16, 1954, with SS # XXX-XX-7399, including, but not limited to, all office, emergency room, inpatient and outpatient charts and records. For the past 10 years, including all electronic communications from and to the patient. All records, including but not limited to, any and all medical records, diagnostics, laboratory studies, films and billings for the past ten (10) years.”

A Deposition Subpoena for Production of Business Records was served on Life Touch on July 28, 2021, and Life Touch disregarded the subpoena and did not respond. (Motooka Decl., ¶¶ 5-6; Exhibits A-B.) Life Touch is one of Respondent’s treatment providers. (Motooka Decl., ¶ 5.)

“Any and all documents, for the past 10 years, paper and digital records pertaining to care, treatment and examination, including but not limited to, all office, emergency room, inpatient/outpatient charts either in hard copy or electronic and/or faxed. Any and all x-ray films to include MRI films, CAT scans, myelograms, radiological images, ultrasounds and any other films specific to Gabor Szabo. Please provide breakdown of films and or studies reflecting body parts, dates taken, number of films and or studies, with associated cost for approval prior to production. Any and all records of payment and/or discount regarding any medical billing as well as the bills themselves, billing information, including but not limited to procedure and diagnosis codes, CPT codes, statements, computer printouts, itemized breakdown of all charges, payments, adjustments/write-offs or balance due, including but not limited to , all charges, credits, payments, adjustments and/or write-offs, and the sources of each, such as all EOBs from any insurance carrier reflecting any and all credits and adjustments and write-offs to the bills by virtue of any payments and/or contractual agreements/adjustments, including fees, etc. for professional services including Medicare, Medicaid, etc., pertaining to Gabor Szabo, born on January 16, 1954, with SS # XXX-XX-7399, for the past 10 years. To include all electronic communications from and to the patient. Include records from Jeffrey Benton DC.”

The Court references its discussion as to the Chow Motion and incorporates it herein. The Court finds that the records sought pursuant to the subpoena directed to Life Touch are relevant to ascertain the scope and extent of Respondent’s injuries, as well as the medical expenses incurred due to such injuries. The Court therefore GRANTS the Life Touch Motion, and orders Life Touch to comply with the subpoena within 30 days of the date of notice of this order. Moreover, given that the Life Touch Motion is unopposed, there is an inference it is meritorious. (Sexton v. Superior Court, supra, 58 Cal.App.4th 1403, 1410.)

The Court GRANTS Petitioner’s request for monetary sanctions in the reduced amount of $400, reducing the requested amount because the Motions are all substantially the same and straightforward and were unopposed. Monetary sanctions in the amount of $400 are to be paid by Life Touch to Petitioner within 30 days of the date of notice of this order.

A Deposition Subpoena for Production of Business Records was served upon Le on July 30, 2021, and Le disregarded the subpoena and did not respond. (Motooka Decl., ¶¶ 5-6; Exhibits A-B.) Le is one of Respondent’s treatment providers. (Motooka Decl., ¶ 5.)

“Any and all documents, for the past 10 years, paper and digital records, including but not limited to, all office, emergency room, inpatient/outpatient charts either in hard copy or electronic and/or faxed. Any and all records of payment and/or discount regarding any medical billing as well as the bills themselves, billing information, including but not limited to procedure and diagnosis codes, CPT codes, statements, computer printouts, itemized breakdown of all charges, payments, adjustments/write-offs or balance due, including but not limited to, all charges, credits, payments, adjustments and/or write-offs, and the sources of each, such as all EOBs from any insurance carrier reflecting any and all credits and adjustments and write-offs to the bills by virtue of any payments and/or contractual agreements/adjustments, including fees, etc. for professional services including Medicare, Medicaid, etc., pertaining to Gabor Szabo, born on January 16, 1954, with SS # XXX-XX-7399, for the past 10 years. Including all electronic communications to and from the patient. All records, including but not limited to, any and all medical records, diagnostics, laboratory studies, films and billings for the past ten (10) years.”

The Court references its discussion as to the Chow Motion and incorporates it herein. The Court finds that the records sought pursuant to the subpoena directed to Le are relevant to ascertain the scope and extent of Respondent’s injuries, as well as the medical expenses incurred due to such injuries. The Court therefore GRANTS the Le Motion and orders Le to comply with the subpoena within 30 days of the date of notice of this order. Moreover, given that the Le Motion is unopposed, there is an inference it is meritorious. (Sexton v. Superior Court, supra, 58 Cal.App.4th 1403, 1410.)

The Court GRANTS Petitioner’s request for monetary sanctions in the reduced amount of $400, reducing the requested amount because the Motions are all substantially the same and straightforward and were unopposed. Monetary sanctions in the amount of $400 are to be paid by Le to Petitioner within 30 days of the date of notice of this order.

The Chow Motion is GRANTED and Chow is ordered to comply with the Deposition Subpoena for Production of Business Records issued to Chow within 30 days of the date of notice of this order.

The Life Touch Motion is GRANTED and Life Touch is ordered to comply with the Deposition Subpoena for Production of Business Records issued to Life Touch within 30 days of the date of notice of this order.

The Le Motion is GRANTED and Le is ordered to comply with the Deposition Subpoena for Production of Business Records issued to Le within 30 days of the date of notice of this order.

The Court GRANTS Petitioner’s requests for monetary sanctions against Chow, Life Touch and Le in the reasonable amount of $400 each, to be paid to Petitioner within 30 days of the date of notice of this order.

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. Lee S. Arian

Judge of the Superior Court

[1] The Motions refer to the subpoenas at issue as subpoenas duces tecums; however, the subpoenas attached to each respective declaration of counsel are identified as a “Deposition Subpoena for Production of Business Records.” Thus, Petitioner is seeking to compel compliance with a deposition subpoena for production of business records. The Court clarifies such fact to prevent any confusion given the naming of the Motions by Petitioner.