Judge: Mark A. Young, Case: 19STCV25703, Date: 2023-02-28 Tentative Ruling

Case Number: 19STCV25703    Hearing Date: February 28, 2023    Dept: M

CASE NAME:           Valentine v. Beverly Hills Wellness Surgery Center LLC, et al.

CASE NO.:                19STCV25703

MOTION:                  Motion to Compel Compliance

HEARING DATE:   2/28/2023

Legal Standard

Code of Civil Procedure § 2020.010 permits discovery of non-party witnesses through oral and written depositions. (See CCP § 2020.010(a)(1), (2); Hawkins v. TACA International Airlines, S.A. (2014) 223 Cal.App.4th 466, 476.) A deposition subpoena may command the attendance and testimony of the deponent, the production of business records, or both. (CCP § 2020.020.) Additional requirements regarding notification and a right to object are in place where the records sought are consumer records, including personal medical records. (See CCP § 1985.3.) 

Code of Civil Procedure § 1987.1 provides that “[i]f 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 [a party or a witness] . . . 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.” 

            Code of Civil Procedure § 1987.2 states: “[T]he court may in its discretion award the amount of the 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 . . .” Code of Civil Procedure § 2025.480(j) states: “The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  

Analysis

            This action arises out of alleged medical malpractice regarding the care and treatment of Plaintiff’s breast lift/reduction on September 17, 2018.  On January 3, 2023, Plaintiff served on Blue Cross/Blue Shield at its principal place of business located at 1800 Center Street Camp Hill, PA 17011, a deposition subpoena for the production of business records. (Lenze Decl. ¶ 4.) No response was given. Plaintiff thus moves to compel compliance with the subpoena.

Plaintiff has not filed a proof of service of the motion on the deponent, Blue Cross/Blue Shield. As noted, Code of Civil Procedure § 2025.480(c) requires that “[n]otice of this motion shall be given to all parties and to the deponent either orally at the examination, or by subsequent service in writing.”  Thus, it appears that plaintiff still needs to serve a notice on the nonparty deponent. 

Accordingly, the motion will be continued to allow service on the nonparty deponent.

The motion is continued to ______________________.