Judge: Lee S. Arian, Case: 22STCV28406, Date: 2024-10-04 Tentative Ruling

Case Number: 22STCV28406    Hearing Date: October 4, 2024    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.                   INTRODUCTION

This action arises out of a motor vehicle collision that occurred on the Santa Ana Freeway in Los Angeles, California.  Defendant Kassandra Hernandez Rojas’s vehicle struck Plaintiff’s vehicle from the rear. Plaintiff suffered physical injuries, including, allegedly, a traumatic brain injury, and emotional distress. Plaintiff has alleged causes of action for motor vehicle negligence and negligent entrustment against Defendants.

On July 23, 2024, Defendants served deposition subpoenas for production of business records to Regenerative Institute of Newport Beach and Starxx Industries.

On August 16, 2024, Plaintiff filed the instant motion to quash the subpoenas. Plaintiff also seeks a protective order.

On September 20, 2024, Defendants filed an opposition to Plaintiff’s motion and on September 30, 2024, Plaintiff filed a reply.

II.                LEGAL STANDARD

When a subpoena has been issued requiring the attendance of a witness or the production of documents, electronically stored information, or other things before a court or at the taking of a deposition, the court, upon motion “reasonably made” by the party, the witness, or any consumer whose personal records are sought, or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms and conditions as the court may specify.¿ (See Code Civ. Proc. § 1987.1;¿Southern Pac. Co. v. Superior Court¿(1940) 15 Cal.2d 206.) There is no requirement that the motion contain a meet-and-confer declaration demonstrating a good-faith attempt at informal resolution. (See id.) 

The court can make an order quashing or modifying a subpoena as necessary to protect a person from “unreasonable or oppressive demands, including unreasonable violations of the right¿of privacy of the person.”¿(Code Civ. Proc., § 1987.1,¿subd. (a).)

            The scope of discovery is different depending on whether an expert witness is a consulting expert or testifying expert. (Deluca v. State Fish Co., Inc. (2013) 217 Cal.App.4th 671, 688 [Deluca].) “If the expert is solely retained as a consulting expert, the attorney-client privilege applies to communications made by the client or the attorney to the expert in order for the expert to properly advise counsel… the attorney-client privilege applies to communications ‘to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted;’ this clearly includes communications to a consulting expert.” (Ibid, citations omitted.) “Similarly, a consulting expert's report, prepared at the attorney's request and with the purpose of assisting the attorney in trial preparation, constitutes work product entitled to conditional protection and barred from discovery in the absence of good cause.” (Ibid, citations omitted.) Parties can make a demand for the exchange of expert testifying witnesses, their declarations, and production of writings 50 days before the initial trial date or 20 days after service of the demand. (Code Civ. Proc., § 2034.230,¿subd. (b).)

            “The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. The court may make this determination pursuant to a motion for protective order by a party or other affected person.” (Code Civ. Proc., § 2017.020,¿subd. (a).)

III.             DISCUSSION

The Subpoenas

Plaintiff moves to quash the deposition subpoenas for production of business records arguing that they seek privileged and confidential information and that they seek to obtain expert discovery prior to expert disclosure. Defendants’ subpoenas seek the following:

To REGENERATIVE INSTITUTE OF NEWPORT BEACH:

1.       Any and all MEDICAL RECORDS from between November 2010 up until the present date (i.e., the date of production for the subject subpoena), RELATING TO TREATMENT provided to Adam Rodolfo Rueda for his head, neck, cervical spine, and lumbar spine, back, and brain. To include the records of Dr. Khyber Zaffarkhan.

2.      Any and all IMAGING STUDIES from between November 1, 2010 up until the present date (i.e., the date of the subject subpoena), RELATING TO Adam Rodolfo Rueda for his head, neck, cervical spine, and lumbar spine, back and brain. Please provide breakdown of films and or studies reflecting bod parts, dates taken, number of films and or studies, with associated cost for approval prior to production.

3.      Any and all MEDICAL BILLS from between November 1, 2010 up until the present date (i.e., the date of production for the subject subpoena), RELATING TO TREATMENT provided to Adam Rodolfo Rueda for his head, neck, cervical spine, and lumbar spine, back and brain. To include the records of Dr. Khyber Zaffarkhan.

4.      Any and all records of any non-privileged COMMUNICATIONS to and/or from Adam Rodolfo Rueda and/or his legal representative billings, treatments and appointments, including reason or appointments, related to head, neck, cervical spine, and lumbar spine, back and brain between November 1, 2010 up until the present date (i.e., the date of production for the subject subpoena). To include the records of Dr. Khyber Zaffarkhan.

To STARXX INDUSTRIES:

1.      Any and all MEDICAL BILLS from between November 1, 2010 up until the present date (i.e., the date of production for the subject subpoena), RELATING TO TREATMENT provided to Adam Rodolfo Rueda for his head, neck, cervical spine, and lumbar spine, back and brain.

2.      Any and all records of any non-privileged COMMUNICATIONS to and/or from Adam Rodolfo Rueda and/or his legal representative billings, treatments and appointments, including reason or appointments, related to head, neck, cervical spine, and lumbar spine, back and brain between November 1, 2010 up until the present date (i.e., the date of production for the subject subpoena).

The Subpoena Dispute

            The issue relating to the subpoenas is that encompassed within the responsive records are the reports, opinions, and documents of Dr. Khyber Zaffarkhan, who is connected to both Regenerative Institute of Newport Beach and Starxx Industries. (Motion to Quash, p. 8.) Plaintiff argues that he retained Dr. Zaffarkhan as a consulting expert to advise Plaintiff’s counsel on Plaintiff’s care and rehabilitation. (Farahi Decl., ¶ 3.) Dr. Zaffarkhan’s findings in this matter were thus far only used in Plaintiff’s settlement offer on June 26, 2024. (Motion to Quash, p. 4.) Because Dr. Zaffarkhan was not retained as a testifying expert witness nor has he been designated as such, Plaintiff contends that Dr. Zaffarkhan is a consulting expert to which the attorney-client privilege applies. Further, Plaintiff contends that any reports Dr. Zaffarkhan produced for the purpose of trial preparation are protected work product.   

The attorney-client privilege and work product doctrine apply to communications between an attorney and a consulting expert. (DeLuca v. State Fish Co., Inc. (2013) 217 Cal.App.4th 671, 688.) The attorney-client privilege applies to communications to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted. (Cal. Evid. Code § 952.) This includes communications to an expert consultant. (DeLuca, 217 Cal.App.4th at 688; Roush v. Seagate Technology, LLC (2007) 150 Cal.App.4th 210, 225.) An expert employed by an attorney to evaluate issues in the case may be treated as an agent of the attorney for this purpose. (People v. Gurule (2002) 28 Cal.4th 557, 594.) In Sanders v. Sup. Ct. (1973) 34 Cal.App.3d 270, 277, the appeal court stated, “Consultation between expert and counsel may appropriately be given broad immunity from discovery, both as to expert and as to counsel, because none of the expert’s opinion, professional though it may be, is relevant evidence in the case. To the contrary, his opinion is and will remain wholly irrelevant and immaterial as evidence until the expert is called as a witness on the trial and shown to be qualified to give competent opinion testimony.” Thus, the subpoenaed information relating to Dr. Zaffarkhan is privileged and protected by the work product doctrine. 

            Additionally, here, the exchange of witnesses has not happened yet. Neither has the designation of witnesses. Defendants are not entitled to subpoena testifying experts until after the exchange of expert witnesses. Accordingly, Plaintiff’s motion to quash deposition subpoenas for production of business records is granted.

Protective Order

            Plaintiff seeks a protective order to safeguard against misuse of the discovery process. Plaintiff has not described what he seeks the protective order for or how he thinks the court should limit discovery apart from granting the motion to quash. Accordingly, Plaintiff’s request for a protective order is denied.

            CONCLUSION

Plaintiff’s motion to quash deposition subpoena for production of business records is GRANTED.

Plaintiff’s request for a protective order is DENIED.

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.