Judge: Martha K. Gooding, Case: 2021-01204907, Date: 2022-12-05 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 DENIED.

Defendant previously was given notice of the defects discussed below and an opportunity to remedy them.  [ROA #73.]  He failed to do so.

The proof of service of the Motion on Dr. Patel is insufficient.

Attached to Defendant’s motion is a proof of service by Dalia Delgado, who appears to be employed by defense counsel, purporting to show service of the moving papers by email on Plaintiff and by “personal service” on Dr. Patel.   Ms. Delgado declares that she “caused” the moving papers “to be placed in an envelope and delivered by hand” to Dr. Patel at 1125 S. Beverly Drive, Los Angeles, CA 90035.

There is not, however, a declaration from any person declaring he or she actually delivered the Motion to Dr. Patel

Unless the declarant in counsel’s office actually delivered the package herself, rather than hired a messenger to do it, she does not have the personal knowledge to attest that service was made.  See, e.g., Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-B, §§ 9:85-85.2 (“A declaration of personal service is required by the person delivering the documents” and “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.”).

The proof of service of the subpoena also is insufficient.

“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 problems with the 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.  On everything else filed with the Court – 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.  Without further evidence or explanation, proof of service of the subpoena on Jennifer Martinez, at a completely different address than Dr. Patel’s, is not proof of service of the subpoena on Dr. Patel. 

Second, there is no proof of the required service of the subpoena and/or notice to consumer on Plaintiff prior to service of the subpoena.

Motion is denied.  Clerk is ordered to give notice.