Judge: Martha K. Gooding, Case: 2021-01204907, Date: 2022-10-24 Tentative Ruling
Motion to Compel Production
The Motion by Defendant Kaustubh Dilip Bhalerao (“Defendant”) to compel non-party Shounuck Patel, D.O. to comply with Defendant’s subpoena for the medical records of Plaintiff Richard Villegas (“Plaintiff”) is continued to December 5, 2022 at 1:30 p.m. to provide Defendant an opportunity to address the following procedural issues.
The proof of service of the motion on Dr. Patel is insufficient.
Attached to Defendant’s Motion is a proof of service by his counsel’s office showing service of the Motion by email on Plaintiff and by personal service on Dr. Patel. The person from counsel’s office declares she “caused” the Motion to be delivered.
There is not, however, a declaration from any person declaring s/he actually delivered the service copy of the Motion.
Unless the declarant in counsel’s office actually delivered the Motion papers herself, rather than hired a messenger to do it, she does not have the personal knowledge to attest that service was made.
Service may be made on a party's attorney by leaving the papers with a receptionist or anyone in charge of the office. If there is no one with whom to leave the papers, they may be left in a conspicuous place in the office between the hours of 9:00 a.m. and 5:00 p.m. [CCP § 1011(a); see National Advertising Co. v. City of Rohnert Park (1984) 160 CA3d 614, 618-619, 206 CR 696, 698]
(a) [9:85.1] Proof of service: A declaration of personal service is required by the person delivering the documents.
FORM: Proof of Personal Service—Civil (Judicial Council form POS-020).
➪ [9:85.2] PRACTICE POINTER: If you are going to use a messenger to serve documents on opposing counsel or parties, the proof of service must be by the messenger. A declaration signed by a secretary who gave the papers to the messenger is hearsay and not sufficient.
For the same reason, a declaration by the attorney (e.g., “I caused to be delivered by hand”) is likewise insufficient. If you are relying on personal service, the person who actually served the document must sign the proof of service.
Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-B, §§ 9:85-85.2.]
The proof of service of the Subpoena raises questions
“In California, discovery may be obtained from a nonparty through an oral deposition, a written deposition, or a deposition for the production of business records and things. (Code Civ. Proc., § 2020.010, subd. (a).) To pursue the deposition of a nonparty, a party must generally serve a deposition subpoena. (Id., § 2020.010, subd. (b).) “A deposition subpoena that commands only the production of business records for copying shall designate the business records to be produced either by specifically describing each individual item or by reasonably particularizing each category of item, and shall specify the form in which any electronically stored information is to be produced, if a particular form is desired.” (Id., § 2020.410, subd. (a).)” Board of Registered Nursing v. Superior Court of Orange County (2021) 59 Cal.App.5th 1011.
Where the documents sought are consumer records, a notice to consumer must be served before the subpoena is served. Code Civ. Proc. § Code Civ. Proc. § 1985.3(b)(3). Proof of service on the “consumer” must accompany the deposition 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. § 1985.3(k). Documents and information maintained by a physician pertaining to an individual are “consumer records.” Code Civ. Proc. § 1985.3(a)(1), (2).
Here, there are two concerns regarding service of the subpoena for medical records.
First, the proof of service for the Subpoena does not show service on a person or address with any apparent connection to Dr. Patel. The proof of service by the process server states service was made on Jennifer Martinez at 51 N. Fifth Avenue Suite 301 Arcadia, CA 91006. However, on the subpoena, correspondence, and proof of service of the Motion, Dr. Patel’s address is shown as Shounuck Patel, DO 1125 S. Beverly Drive Los Angeles, CA 90035.
Second, there is no proof of service of the Subpoena and/or notice to consumer on Plaintiff, the consumer, prior to service of the subpoena.
Defendant is ordered to give notice of this Order.