Judge: Martha K. Gooding, Case: 21-01230089, Date: 2023-07-20 Tentative Ruling
Motion to Quash
The Motion by Defendants Dr. Frederic H. Corbin and Frederic H. Corbin, M.D., APC (collectively, “Defendants”) to quash Plaintiff’s deposition subpoena served on third-party “J.S.” is DENIED.
Discovery from a nonparty is by deposition subpoena. (Code Civ. Proc., § 2020.010; Unzipped Apparel, LLC v. Bader (2007) 156 Cal. App. 4th 123, 130.) In response to a properly served deposition subpoena, the deponent (or party affected) may move to quash the subpoena under CCP section 1987.1(a) or move for a protective order under CCP section 2025.420. The filing of a motion to quash or a motion for protective order will effectuate a “stay” of the production until further order of the Court.
Defendants move to quash the subpoena that Plaintiff served on
non-party J.S. requesting documents related to any complaints she made regarding Defendant.
Plaintiff contends the information sought is discoverable because the abuse that J.S. alleges to have suffered at the hands of Defendant Corbin is relevant to the pattern and practice of abuse perpetrated by Defendant Corbin as a physician with Defendant Frederic H. Corbin, M.D., APC.
In moving to quash, Defendants contend the subject matter on which Plaintiff seeks to elicit testimony and obtain documents is subject to a confidentiality provision contained in the settlement agreement between J.S. and Defendant.
The settlement agreement includes the following clauses:
2. Releasing Parties and Released Parties have a dispute regarding the quality of medical care rendered by the Released Parties to the Releasing Parties, and conduct related to those interactions, and wish to fully and forever resolve each and every individual and derivative claim.
8. As part of the valuable and indispensable consideration to the Released Parties of this Agreement, the Releasing Parties agree that they shall not reveal to any member of the general public any of the terms of this Release & Reimbursement Agreement or any of the allegations giving rise to this Agreement … This is such an important consideration in entering into this Agreement that the Releasing Parties agree to return the $30,000.00 payment referenced in Paragraph 3 in the event of a breach of the provisions of this paragraph (Paragraph 8) in this Agreement.
(Cox Decl., Ex. B.)
CCP section 1002 states in pertinent part: “(a) Notwithstanding any other law, a provision within a settlement agreement that prevents the disclosure of factual information related to the action is prohibited in any civil action the factual foundation for which establishes a cause of action for civil damages for any of the following:…(1) An act that may be prosecuted as a felony sex offense…(d) Except as authorized by subdivision (c), a provision within a settlement agreement that prevents the disclosure of factual information related to the action described in subdivision (a) that is entered into on or after January 1, 2017, is void as a matter of law and against public policy.” [emphasis added]
Based on the foregoing, the confidentiality provision in the settlement agreement is void. Not only does the language in the statute encompass actions that “may” be prosecuted as a felony, but allegations of sexual misconduct against Defendant Corbin by victim J.S. are presently being prosecuted as a felony offense in the Orange County Superior Court. (See Aanestad Decl., Ex. 4, People v. Frederic H. Corbin Case No.: 21NF2698; see also Civ. Code, § 1670.11 (voiding a provision in a settlement agreement waiving a party’s right to testify regarding alleged criminal conduct or alleged sexual harassment on the part of the other party to the agreement).)
Defendants also argue that the allegations made by J.S. against Defendants primarily involved standard of care issues, and there was no conduct alleged against Defendants that constituted a felony sex offense. But this is at odds with Defendant Corbin’s own deposition testimony. Defendant Corbin testified that J.S. is the second victim included in the criminal charges filed against him. (Aanestad Decl., Ex. 3.) He also testified that victim J.S. alleges that Corbin inappropriately touched her. (Id.)
Finally, Defendants argue the subpoena should be quashed because propensity evidence such as this is inadmissible under Evidence Code section 1101(a). This argument also fails.
First, admissibility is not a prerequisite for discoverability. See Code Civ. Proc., § 2017.010 (party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, “if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.”); Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 591 (the statutory phrase “subject matter” is broader than the issues, and is not limited to admissible evidence); Seahaus La Jolla Owners Assn. v. Superior Court (2014) 224 Cal.App.4th 754, 767 (admissibility is not the text for discovery).
Second, in any event, Evidence Code section 1101 provides that evidence to support “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident,” etc. can be admissible. In People v. Ewoldt (1994) 7 Cal.4th 380, 387, the court held that evidence of similar molestations of third parties was admissible under section 1101, as evidence of the defendant’s common scheme or plan.
The motion is denied. Defendants have not shown that the confidentiality provision in the settlement agreement is valid and can be used to prevent the deposition of J.S. (See Code Civ. Proc., § 1002; Civ. Code, § 1670.11.) Plaintiff has shown the testimony is subject to discovery. (See Evid. Code § 1101.)
Plaintiff is ordered to give notice.