Judge: Michael E. Whitaker, Case: 22STCV03683, Date: 2023-05-01 Tentative Ruling

Case Number: 22STCV03683    Hearing Date: May 1, 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 

On January 28, 2022, Plaintiff Blanca R. Tompkins Pisano (“Plaintiff”) filed a complaint against Defendant Cynthia F. Bennett (“Defendant”) for negligence and motor vehicle owner liability arising out of a motor vehicle accident, which Plaintiff suffered injuries.

On March 6, 2023, Defendant filed the instant motion to compel non-party compliance with subpoena duces tecum for production of Plaintiff’s medical records and request for sanctions.  No opposition to the motion has been filed.

ANALYSIS 

 “A business records subpoena directs the nonparty’s custodian of records (or other qualified person) to deliver the requested documents (in person, by messenger, or by mail) to the ‘deposition officer’ specified in the subpoena. (§ 2020.430, subd. (a).)” (Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 131.) 

“A provider of health care, health care service plan, or contractor shall not disclose medical information regarding a patient of the provider of health care or an enrollee or subscriber of a health care service plan without first obtaining an authorization, except as provided in subdivision (b) or (c).” (Civ. Code, § 56.10, subd. (a).) A provider of health care, a health care service plan, or a contractor shall disclose medical information if the disclosure is compelled “by a party to a proceeding before a court … pursuant to a … subpoena duces tecum, notice to appear served pursuant to Section 1987 of the Code of Civil Procedure, or any provision authorizing discovery in a proceeding before a court ….” (Civ. Code, § 56, subd. (b)(3).) 

Code of Civil Procedure section 1987.1, subdivision (a), provides that if a subpoena requires the production of documents, the Court may, upon motion reasonably made by a party, make an order “directing compliance with it upon those terms or conditions as the court shall declare.” (See also Civ. Code Proc., § 2025.480, subd. (a) [providing that if a deponent fails to produce any document “that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that… production”].)

“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.” (Code Civ. Proc., § 2020.410, subd. (a).) 

“If, under Sections 1985.3 or 1985.6, the one to whom the deposition subpoena is directed is a witness,” for example, a physician (section 1985.3, subd. (a)(1)), “and the business records described in the deposition subpoena are personal records pertaining to a consumer, the service of the deposition subpoena shall be accompanied either by a copy of the proof of service of the notice to the consumer … or by the consumer’s written authorization to release personal records ….” (Code Civ. Proc., § 2020.410, subd. (d).)

Here, Defendant requests the Court to compel Colin P. Dias, M.D. to comply with the subpoena for production of Plaintiff’s medical records and for monetary sanctions in the amount of $676.65.

Defendant submits its counsel’s declaration in support of its motion which attests to the following facts.  

 Plaintiff seeks recover for personal injury damages resulting from a motor vehicle accident that occurred on February 7, 2020. (Motion, Shaw Decl., ¶ 2.) To evaluate Plaintiff’s claims, on October 22, 2022, Defendant served a subpoena on Colin P. Dias, MD (a nonparty) seeking Plaintiff’s medical records from February 1, 2010 to present. (Shaw Decl., ¶ 4; Ex. “A.”) Defendant served the subpoena through ABI Document Support Services (“ABI”). (Shaw Decl., ¶ 4.) ABI attempted to contact Colin P. Dias, MD numerous times via telephone but could not reach him. (Motion p. 3.) On January 5, 2023, Defendant’s counsel called Dr. Dias’ office and spoke to Vicki, who stated that Plaintiff’s medical records were pending Dr. Dias’ review and authorization before they were released. (Shaw Decl., ¶ 5.) On January 5, 2023, and February 14, 2023, Defendant’s counsel sent Dr. Dias a meet and confer letter advising Dr. Dias that if he fails to comply with the requested subpoena, Defendant will file a motion to compel compliance. (Shaw Decl., ¶¶ 6-7; Ex. “B” and “C”.) However, as of the date Defendant signed the declaration for the instant motion, Dr. Dias had not yet responded to the subpoena. (Shaw Decl., ¶ 8.)

Given the allegations in Plaintiff’s complaint that Plaintiff suffered bodily injury, and Defendant’s purpose in issuing a subpoena to Dr. Dias (to produce Plaintiff’s medical records), the Court finds that there would be good cause to grant the motion. Further, Defendant produced evidence indicating that, along with the subpoena, Dr. Dias was served a copy of the proof of service of the notice of the subpoena to Plaintiff. (Shaw Decl., Ex. “A.”) No opposition to the motion has been filed.

Accordingly, the Court grants Defendant’s request to compel non-party compliance with subpoena duces tecum for production of Plaintiff’s medical records

Defendant also request monetary sanctions of $676.65, calculated as follows: 2 hours to prepare the motion, supporting declaration, and paper; 1 hour to review anticipated opposition and prepare a reply; 2 hours to attend the hearing of this motion, all at the hourly rate of $123.00 per hour, plus $61.65 filing fee. (Shaw Decl., ¶ 10.) The Court grants Defendant’s request for monetary sanctions against Colin P. Dias, MD pursuant to Code of Civil Procedure section 1985.7. The Court imposes sanctions on Colin P. Dias, MD for $552.00, calculated as follows: 3 hours to prepare the motion, supporting declaration, and paper; 1 hour to attending hearing of this motion, all at the hourly rate of $123.00 per hour, plus $60.00 filing fee.

CONCLUSION AND ORDER 

Therefore, the Court grants Defendant’s motion to compel non-party compliance with subpoena duces tecum for production of Plaintiff’s medical records and request for monetary sanctions.  As such, the Court orders Colin P. Dias, MD to produce the responsive records, and pay the monetary sanctions in the amount of $552.00 to Defendant, within 20 days of notice of the Court’s orders. 

Defendant shall provide notice of the Court’s orders and file a proof of service regarding the same.