Judge: Melvin D. Sandvig, Case: 22CHCV01259, Date: 2023-09-12 Tentative Ruling
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Case Number: 22CHCV01259 Hearing Date: September 12, 2023 Dept: F47
Dept. F47
Date: 9/12/23
TRIAL DATE: 8/12/24
Case #22CHCV01259
MOTION TO QUASH
DEPOSITION SUBPOENAS
Motion filed on 8/22/23.
MOVING PARTY: Plaintiff Eric Iriarte
RESPONDING PARTY: Defendants Quikrete Holdings, Inc.;
Penske Truck Leasing Co., L.P.; and Hector Deharo
NOTICE: ok
RULING: The motion is denied.
SUMMARY OF FACTS & PROCEDURAL HISTORY
This action arises out of a motor vehicle collision that
occurred on 3/29/21 between Plaintiff Eric Iriarte (Plaintiff) and Defendant
Hector Deharo (Deharo). Plaintiff
alleges that Deharo was in the course and scope of his employment with
Defendant/Cross-Complainant Quikrete Holdings, Inc. (Quikrete) and operating a
vehicle owned by Defendant/Cross-Complainant Penske Truck Leasing Co., L.P.
(Penske) at the time of the incident.
Plaintiff claims that he suffered personal injuries as a result of the
collision.
On 6/5/23, Defendants issued a subpoena to Blue Shield of
California (Blue Shield) and on 6/13/23, Defendant’s issued a subpoena to Mark
Schneider MD (Dr. Schneider). (Daneshrad
Decl., Ex.A). On 6/20/23 and 7/18/23,
Plaintiff’s counsel sent meet and confer letters regarding the subpoenas
claiming that they were improper, overbroad, and not limited in time and
scope. (Id., Ex.B). Thereafter, Defendants indicated that they
would limit the subpoenas in time, but refused to limit them to only body parts
Plaintiff claimed to be at issue (i.e., lower back as indicated in Plaintiff’s
response to Form Interrogatory 6.2). (Id.,
Ex.C). Plaintiff contends that after
receiving (an) amended subpoena(s) that were(was) issued and served on 8/7/23
and limited as to time, Plaintiff sent another meet and confer letter and an
objection. (Id., Ex.D, E). Defendants refused to further limit the
subpoenas. (Id., Ex.F).
On 8/22/23, Plaintiff filed and served the instant motion
seeking an order quashing the subpoenas previously issued and served on Blue
Shield of California and Mark Schneider, MD on 7/12/23. Additionally, Plaintiff requests an order
awarding attorneys’ fees and costs in the amount of $2,000. Defendants have opposed the motion. Although Plaintiff filed a late separate
statement after the opposition was filed, Plaintiff did not file a reply to the
opposition.
ANALYSIS
The instant motion suffers from several defects.
First, it is not clear which subpoenas are at issue. See CRC 3.1110(a). The notice of motion indicates that Plaintiff
is seeking “an order to quash the subpoena [singular] previously issued and
served on Blue Shield of California and Mark Schneider, MD on July 12, 2023 and
for an order for attorneys’ fees and costs in the amount of $2,000.” (See Notice of Motion, p.2:5-7). However, two different subpoenas were
initially issued and served on Blue Shield and Dr. Schneider on 6/5/13 and 6/13/23, respectively and no
subpoena was issued or served on 7/12/23.
(Daneshrad Decl., Ex.A). Moreover,
the motion indicates that after meet and confer efforts, Defendants issued
revised subpoenas on 8/7/23. (See
Motion, p.4:4-5; Daneshrad Decl. ¶10, Ex.D).
However, Plaintiff only attached a new subpoena served on Blue Shield on
8/7/23 to the motion. (Daneshrad Decl.,
Ex.D). Further, the late separate
statement filed and served by Plaintiff in support of the motion only addresses
the 8/7/23 subpoena issued to Blue Shield.
An amended subpoena was issued to Dr. Schneider on 7/25/23. (Nacharyan Decl., Ex.17).
Second, the motion was not accompanied by a separate
statement as required by CRC 3.1345(a)(5).
After the opposition to the motion was filed and served pointing out
this defect, Plaintiff filed a belated separate statement on 9/1/23 (served on
8/31/23) which addresses only the 8/7/23 subpoena issued to Blue Shield. All documents in support of the
motion were required to be filed and served at least 16 court days before the
hearing date. See CCP
1005(b).
Based on the argument contained in the motion, it appears
that Plaintiff is attempting to challenge both subpoenas issued and served on 7/25/23
as to Dr. Schneider and on 8/7/23 as to Blue Shield on the ground that they are
overbroad because they are not limited to the body parts Plaintiff claims were
injured as a result of the incident which is the subject of this action,
specifically, Plaintiff’s lower back as identified in his response to Form
Interrogatory 6.2. (See Motion,
p.5:6-p.7:12; Daneshrad Decl. ¶7). If
this is the case, Plaintiff should have made two separate motion reservations,
paid two filing fees and filed two separate motions addressing each
subpoena. See Government Code
70617.
Third, Plaintiff has failed to electronically bookmark the declaration
and exhibits attached to the motion as required. (See 5/3/19 First Amended General Order Re Mandatory Electronic Filing for
Civil; “TECHNICAL REQUIREMENTS,” p.4:4-p.5:12; CRC 3.1110(f)(4)).
In addition to the foregoing defects, the motion fails on
the merits.
The 7/25/23 subpoena issued to Dr. Schneider requests:
“Any and all medical records,
files, reports, correspondence, whatsoever, relating to any care, treatment,
diagnosis, prognosis, consultation and/or findings, including but not be
limited to, any and all emergency room records, nurses notes, SOAP notes, operative
reports, radiology reports, pathology reports, all test and test results,
medication records, physical and/or occupational therapy records, workers’
compensation records, sign-in sheets, color photographs, patient information
sheets, handwritten notes, transcriptions, prescriptions, telephone messages,
electronic media and any documents in the file from other health care
providers, from 3/2018 to the present date pertaining to Eric Iriarte; DOB:
SS#: XXX-XX-XXXX. Documents produced should also include, but not be limited
to, any and all electronically stored documents in your possession.”
(Nacharyan Decl. ¶17, Ex.L).
The 8/7/23 subpoena issued to Blue Shield requests:
“ANY AND ALL RECORDS REFLECTING
EXPLANATION OF BENEFITS (EOBS), FOR THE PERIOD COMMENCING 07/2013 THROUGH AND
INCLUDING THE PRESENT, PERTAINING TO ERIC IRIARTE; DOB: SS# UNKNOWN; ID No.:
XEH9034050088.”
(Nacharyan Decl. ¶18, Ex.M).
In a personal injury action, discovery is permitted with
regard to the physical conditions the patient-litigant has placed in
issue. See Britt (1978) 20
C3d 844, 863-864; Vinson (1987) 43 C3d 833, 842; Lantz (1994) 28
CA4th 1839, 1854-1855, 1857; Heller (1994) 8 C4th 30, 43, 55. Here, Plaintiff claims that only injuries to
his lower back are at issue based his response to Form Interrogatory 6.2.
(Nacharyan Decl. ¶5, Ex.A). However,
Defendants have provided evidence that Plaintiff has made complaints of other
injuries as a result of the incident which is the subject of this action. Plaintiff testified at his deposition that he
sustained injuries to his lower back, neck, trapezius, and left shoulder which
were allegedly caused by Defendants. (Nacharyan Decl. ¶6, Ex.B, p.67:20-p.68:5,
p.72:5-7). Additionally, Plaintiff
claims he needs a two-level fusion due to the injury to his back as a result of
the incident. (Nacharyan Decl. ¶5, Ex.A,
Response to Form Interrogatory 6.7). In
April of 2021, Plaintiff complained to his treating chiropractor at Hunt
Chiropractic of not only low back pain but also neck pain with the neck pain
traveling to the upper back. (Nacharyan
Decl. ¶7, Ex.C). At a visit to Dr. Moheiman
in June of 2021, Plaintiff complained of low back pain and also indicated he
had difficulty sleeping and grinding in the neck. (Nacharyan Decl. ¶ 8, Ex.D).
Based on the foregoing evidence, Plaintiff has placed
more than the condition of his lower back at issue in this action. As such, Defendants may conduct discovery to
evaluate these alleged injuries and Plaintiff’s claimed damages which include
pain and suffering, including whether the claimed injuries were caused by other
factors such as secondary effects from preexisting conditions which may not be
related to those same exact body parts.
The Court finds that the subpoenas Defendants issued to Dr. Schneider on
7/25/23 and Blue Shield on 8/7/23, as set forth above, are properly limited in
time and scope as they relate to the discovery of medical records from
Plaintiff’s provider from the past five years and EOBS (explanation of
benefits) from Plaintiff’s health insurance provider from the past ten years which
are the only means by which Defendants can assess Plaintiff’s alleged injuries
resulting from the subject incident.
CONCLUSION
The motion is denied.
The documents responsive to the subject subpoenas are ordered to be
produced within 20 days subject to a Stipulated Protective Order as offered by
Defendants during the meet and confer process.
(See Nacharyan Decl. ¶20, Ex.O).
Plaintiff’s counsel is reminded that in the future
electronic bookmarks of declarations and exhibits are required. Continued failure to comply with these
requirements, may result in matters being placed off calendar, papers not being
considered, matters being continued so that papers can be resubmitted in
compliance and/or the imposition of sanctions.