Judge: Lynette Gridiron Winston, Case: 23PSCV03194, Date: 2024-01-31 Tentative Ruling

Case Number: 23PSCV03194    Hearing Date: January 31, 2024    Dept: 6

CASE NAME:  Patricia Nagle v. Storm Haven, Inc., et al. 

Motion for Order to Produce Records Pursuant to Deposition Subpoena 

TENTATIVE RULING

The Court DENIES the motion for order to produce records pursuant to deposition subpoena. The motion is denied without prejudice to Plaintiff serving another subpoena after the Defendants have been served and the hold period expired. 

            Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order. 

BACKGROUND

This is a wrongful death and elder abuse action. On October 16, 2023, plaintiff Patricia Nagle (Plaintiff) filed this action against defendants Storm Haven, Inc., Harvienia Williams, Ian Sebastian Williams, Lee Frances Porter (collectively, Defendants) and Does 1 through 50, alleging causes of action for wrongful death and civil elder abuse and neglect. 

On January 8, 2024, Plaintiff filed a motion for order to produce records pursuant to deposition subpoena against non-party San Gabriel/Pomona Regional Center (Regional Center). On January 22, 2024, Regional Center opposed the motion. No reply was filed. 

LEGAL STANDARD

If a subpoena requires the attendance of a witness or 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 described in subdivision (b), 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 or conditions as the court shall declare, including protective orders. In addition, the 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. 

(Code Civ. Proc., § 1987.1, subd. (a).)  

All information and records obtained in the course of providing intake, assessment, and services… to persons with developmental disabilities shall be confidential. Information and records obtained in the course of providing similar services to either voluntary or involuntary recipients before 1969 shall also be confidential. Information and records shall be disclosed only in any of the following cases: … (f) To the courts, as necessary to the administration of justice. 

(Welf. & Inst. Code § 4514, subd. (f).) 

PRELIMINARY ISSUES

            A motion to compel the production of documents at a deposition requires a separate statement. (Cal. Rules of Court, rule 3.1345, subd. (a)(5).) The Court notes that Plaintiff did not file a separate statement with the motion. However, the Court also notes that Regional Center did not raise this issue in its opposition to the motion. Accordingly, the Court will still consider Plaintiff’s motion, but admonishes Plaintiff to comply with the requirements of the California Rules of Court going forward. 

DISCUSSION

Meet and Confer

Although a meet-and-confer declaration is not required for a motion to compel compliance with a subpoena, the Court appreciates Plaintiff’s efforts to meet and confer before bringing this motion. (See Code Civ. Proc., § 1987.1; Shebby Decl., ¶¶ 9-11, Ex. D.) 

Analysis

Plaintiff seeks to compel non-party Regional Center to comply with a deposition subpoena served on November 8, 2023. Plaintiff seeks to do so under Welfare and Institutions Code section 4514, subdivision (f). Plaintiff contends that since the decedent, Deborah Nagle (the “Decedent”), is deceased, the interests of her privacy intended by the protections of section 4514 are substantially diminished, or at least outweighed in favor of disclosure. Plaintiff contends that disclosure in this case would enable the fair administration of justice. 

In opposition, Regional Center indicates that Welfare and Institutions Code section 4514, subdivision (f) would be the only possible exception here, and that a court order would be required for it to produce the requested records. Regional Center contends that, among other things, although the Decedent has died, the privacy interests protected under section 4514 survive death, as evidenced by subdivision (p) of section 4514, which even limits disclosure in instances of murder. (Welf. & Inst. Code § 4515, subd. (p).) 

The Court finds Plaintiff’s motion to be well-taken. Plaintiff is the mother of the Decedent who is the subject of the records sought. Plaintiff has filed a wrongful death action against Defendants and seeks records from the Regional Center regarding its investigation into Decedent’s death. Any interest the Decedent may have had in maintaining her privacy is certainly outweighed by her mother’s interest in investigating the facts surrounding her death and the disclosure of such information promotes the administration of justice. The evidence presented further supports the disclosure of Regional Center’s records as it pertains to the Decedent. The May 11, 2023 letter from Jaime Anabalon on behalf of Regional Center to the Decedent’s sister, Laura Herman, tends to show that Defendant Ian Williams, who worked for Regional Center at the time of the incident, caused or contributed to the Decedent’s death. (See Shebby Decl., Ex. C.) Regional Center’s disclosure per the November 8, 2023 subpoena would likely promote the interests of justice in determining fault with respect to Decedent’s death. (See Welf. & Inst. Code, § 4515, subd. (f).) 

Moreover, the Court does not find subdivision (p) of Welfare and Institutions Code section 4514 to be a clear indication that the Decedent’s privacy interests survive death. Subdivision (p) is one of the numerated exceptions to the confidentiality protections of section 4514 and it specifically permits disclosure to law enforcement agencies when there is probable cause that the developmentally disabled person was murdered. (Welf. & Inst. Code § 4514, subd. (p)(1).) If anything, this weighs in support of disclosure in the event of death. Additionally, the Court reads Regional Center’s opposition not really as an objection to the production of the requested records, but rather as an agreement to produce provided there is a court order directing it to do so. 

However, the Court takes judicial notice of its own records and finds that no defendants have been served with the Summons and Complaint in this action, as no proofs of service have been filed with the Court. The Civil Discovery Act precludes Plaintiff from serving a deposition notice until 20 days after "the service of the summons on, or appearance by, any defendant.” (See Civ. Proc. § 2025.210(b)(2).) The Court finds that such hold does apply to a deposition subpoena seeking business records from a non-party. (See Cal. Shellfish v. United Shellfish Co. (1997) 56 Cal.App.4th 16, 25; see also Naser v. Lakeridge Athletic Club (2014) 227 Cal.App.4th 571, 578 (“We agree that obtaining business records through a deposition subpoena is a ‘deposition’ within the plain meaning of the Civil Discovery Act.”); Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 131 (“under the plain meaning rule, the Act contemplates that discovery conducted by way of a business records subpoena is a ‘deposition’.”) 

As the Court stated in Cal. Shellfish: “Allowing a plaintiff to initiate discovery by deposition subpoena pursuant to section 2020, subdivision (d), before serving any defendant with the summons and complaint, and without notice of the deposition to any defendant, or any other party in the action, is fraught with the danger for abuse recognized by our Supreme Court years ago. ‘If a party were allowed to compel an independent witness to give his deposition, all without notice to the opposing party, a situation not contemplated by the discovery statutes would result. For then a party might resort to all manner of discovery without adequate protection to his opponent, so long as he intended to forego any formal introduction of the material at time of trial. This would present an intolerable situation.’ ( Lund v. Superior Court (1964) 61 Cal. 2d 698, 711 [39 Cal. Rptr. 891, 394 P.2d 707].) A calculating litigant might conclude that it could benefit from the opportunity to access information it might not otherwise have if an adversary were on notice of the litigation and able to raise valid objections.” (Cal. Shellfish, supra, 56 Cal.App.4th at 23-24.) 

This risk of abuse is illustrated here by the fact that the defendants are not represented. Only the nonparty witness’ interest is represented. However, “[a] witness who is not a party to the litigation does not have the same incentive as an adversarial party to raise valid objections to a discovery request”, and since no defendant was served with notice of the deposition subpoena served on the Regional Center, defendants cannot avail themselves of the right to seek a protective order. (Cal. Shellfish, supra, 56 Cal.App.4th at 24. 

Since it appears that no defendant has been served with the Summons and Complaint, Plaintiff cannot yet serve the deposition subpoena on the Regional Center. 

Based on the foregoing, the Court DENIES the motion for order to produce records pursuant to the deposition subpoena. 

CONCLUSION

The Court DENIES the motion for order to produce records pursuant to deposition subpoena. The motion is denied without prejudice to Plaintiff serving another subpoena after the Defendants have been served and the hold period expired. 

            Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order.