Judge: Michael E. Whitaker, Case: 21STCV16459, Date: 2023-02-09 Tentative Ruling

Case Number: 21STCV16459    Hearing Date: February 9, 2023    Dept: 32

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged). Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

TENTATIVE RULING

MOTION

            Plaintiff Michael John Centofanti (“Plaintiff”) moves to compel defendant Allison Michelle Erdman’s designated expert, Paule E. Kaloostian MD, FACS, FAANS (“Dr. Kaloostian”), to comply with Plaintiff’s subpoena for production of documents served on him on November 14, 2022, and produce documents without objections within 14 days of this hearing.  Plaintiff also seeks an order imposing monetary sanctions of $2,160 against the doctor for necessitating this motion and misusing the discovery process.  The motion is unopposed. 

ANALYSIS

“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).)” (Board of Registered Nursing v. Superior Court of Orange County (2021) 59 Cal.App.5th 1011, 1030 (“Board of Registered Nursing”).)  “To pursue the deposition of a nonparty, a party must generally serve a deposition subpoena.” (Ibid.).)

 “‘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.’  [Citation.]”  (Board of Registered Nursing, supra, 59 Cal.App.5th at p. 1030

“‘If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.’  (Code Civ. Proc., § 2025.480, subd. (a).)” (Board of Registered Nursing, supra, 59 Cal.App.5th at p. 1031.)  “‘[D]iscovery conducted by way of a business records subpoena is a “deposition.”’  [Citation.]”  (Id. at pp. 1031-1032.)  “If 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 . . . directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.”  (Code Civ. Proc., § 1987.1.)

Plaintiff’s counsel attests to the following facts.  Plaintiff submitted to a physical examination by Dr. Kaloostian.  (Motion, declaration of Ramin Soofer (“Soofer Decl.”), ¶ 3.)  Dr. Kaloostian found that the Plaintiff’s injuries were minor in nature, should have been resolved easily, not causally related to the accident, overstated, and excessive as to the billing.  (Soofer Decl., ¶ 4.)  Dr. Kaloostian is designated as defendant’s expert.  (Soofer Decl., ¶ 5.)  Plaintiff served the doctor with a deposition subpoena for production of business records, not seeking records from his physical examination, but records regarding the number of times the doctor has been retained by “USAA and their insurance lawyers ….”  (Soofer Decl., ¶ 6; Exhibit A – a copy of the subpoena.) 

The purpose of the records is to uncover the doctor’s bias because he is “notoriously known as a darling of USAA and its stable of insurance lawyers, that generates virtually identical defense washout … reports.”  (Motion, p. 2:14-21.)

However, “[a]ny person may serve the subpoena by personal delivery of a copy of it as follows: (1) If the deponent is a natural person, to that person.  (2) If the deponent is an organization, to any officer, director, custodian of records, or to any agent or employee authorized by the organization to accept service of a subpoena.”  (Code Civ. Proc., § 2020.220, subd. (b).)  Here, the Deponent is a natural person – Paul E. Kaloostian, not an organization, therefore, personal service of the subject subpoena is required.  Yet, the proofs of service attached as Exhibits A and C do not indicate the deponent, Dr. Kaloostian, was personally served with the subject subpoena. 

Equally important, California Rules of Court, rule 3.1346, required Plaintiff to serve Dr. Kaloostian the moving papers by personal service.  The rule states: “A written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.”

            Here, there is no proof that Plaintiff served Dr. Kaloostian with the moving papers at all; he only served defense and Plaintiff’s counsel and did so electronically.  

CONCLUSION AND ORDER

Consequently, the Court denies Plaintiff’s Motion to Compel Compliance with Subpoena Duces Tecum as procedurally defective.

Plaintiff shall provide notice of the Court’s ruling and file a proof of service of such.