Judge Michael E. Whitaker, Case Number: 23SMCV00980, Date: 2024-12-18 Tentative Ruling

Judge: Michael E. Whitaker, Case: 23SMCV00980, Date: 2024-12-18 Tentative Ruling

This lawsuit arises out of a dispute concerning an automobile collision. Defendant Melvin Markman (“Defendant”) moves to compel further deposition responses from the custodian of records (“COR”) and the person most knowledgeable (“PMK”) of Non Party Hoag Orthopedic Institute-Surgery Center (“Hoag”), where Plaintiff Khristofor Scaramanga (“Plaintiff”) received treatment for injuries.

In particular, Defendant seeks further deposition responses from the COR and PMK concerning Categories 3 and 4 of the amended subpoenas which are as follows:

· 3. Produce all HOAG ORTHOPEDIC INSTITUTE SURGERY CENTER OF BEVERLY HILLS bills for all multilevel discectomies, fluoroscopies, hemilaminotomies, facetectomies, and foraminotomies performed in May 2023 (this is not limited to KHRISTOFOR SCARAMANGA (DOB: 01/15/1965).

· 4. Produce a record of the payments received by HOAG ORTHOPEDIC INSTITUTE SURGERY CENTER OF BEVERLY HILLS for the procedures identified in request number 3.

Hoag opposes the motions and Defendant replies. Further, both Defendant and Hoag seek monetary sanctions.

“Unless otherwise limited by order of the court in accordance with this title, any 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.” (Code Civ. Proc., § 2017.010.)

“The purpose of the discovery rules is to enhance the truth-seeking function of the litigation process and eliminate trial strategies that focus on gamesmanship and surprise. In other words, the discovery process is designed to make a trial less a game of blindman's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.” (Juarez v. Boy Scouts of Am., Inc. (2000) 81 Cal.App.4th 377, 389 [cleaned up].)

Where a party objects, or responds inadequately, to discovery requests, a motion lies to compel further responses, and that party has the burden to justify the objections or inadequate responses. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) Further, “a trial court's determination of a motion to compel discovery is reviewed for abuse of discretion. However, when the facts asserted in support of and in opposition to the motion are in conflict, the trial court's factual findings will be upheld if they are supported by substantial evidence.” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733 [cleaned up].)

“The attendance and testimony of any other deponent, as well as the production by the deponent of any document, electronically stored information, or tangible thing for inspection and copying, requires the service on the deponent of a deposition subpoena under Chapter 6 (commencing with Section 2020.010).” (Code Civ. Proc., § 2025.280, subd. (b); see also Code Civ. Proc., § 2020.010, subd. (b) [“the process by which a nonparty is required to provide discovery is a deposition subpoena”].)

The Discovery Act further provides regarding the deposition of non-parties for testimony and production of documents as follows::

(a) A deposition subpoena that commands the attendance and the testimony of the deponent, as well as the production of business records, documents, electronically stored information, and tangible things, shall:

(2) Designate the business records, documents, electronically stored information, and tangible things to be produced either by specifically describing each individual item or by reasonably particularizing each category of item.

(4) Specify the form in which any electronically stored information is to be produced, if a particular form is desired.

(b) A deposition subpoena under subdivision (a) need not be accompanied by an affidavit or declaration showing good cause for the production of the documents and things designated.

The Discovery Act provides concerning the production of personal records of consumers through deposition subpoenas that:

If, as described in Section 1985.3, the person to whom the deposition subpoena is directed is a witness, 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 described in subdivision (e) of Section 1985.3, or by the consumer's written authorization to release personal records described in paragraph (2) of subdivision (c) of Section 1985.3.

(See Code Civ. Proc., § 2020.510, subd. (c).) Under Code of Civil Procedure section 1985.3, “personal records” “[m]eans the original, any copy of books, documents, other writings, or electronically stored information pertaining to a consumer and which are maintained by any “witness” which is a physician, dentist, ophthalmologist, optometrist, chiropractor, physical therapist, acupuncturist, podiatrist, veterinarian, veterinary hospital, veterinary clinic, pharmacist, pharmacy, hospital, medical center, clinic, radiology or MRI center, clinical or diagnostic laboratory . . .” and “ ‘consumer’ means any individual, partnership of five or fewer persons, association, or trust which has transacted business with, or has used the services of, the witness or for whom the witness has acted as agent or fiduciary.” (Code Civ. Proc., § 1985.3, subd. (a)(1)-(2).)

In short, if a deposition subpoena requests a deponent to produce a consumer’s personal records, the party noticing the deposition, and seeking the production of documents, must comply with Section 1985.3. The purpose of Section 1985.3 is “ ‘to protect a consumer's right to privacy (Cal. Const., art. I, sec. 1) in his personal records maintained, or kept, by his attorney, accountant, doctor, banker, etc.’ ” (Lantz v. Superior Court (1994) 28 Cal.App.4th 1839, 1848, disapproved on other grounds by Williams v. Superior Court (2017) 3 Cal.5th 531.)

“The state Constitution expressly grants Californians a right of privacy. Protection of informational privacy is the provision’s central concern. . . . The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious.^{^[1]} The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations.” (Williams v. Superior Court, supra, 3 Cal.5th 531, 552 [cleaned up].)

“Legally recognized privacy interests [include] interests in precluding the dissemination or misuse of sensitive and confidential information (‘informational privacy’) . . . .” (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35.) “A particular class of information is [sensitive or confidential] when well-established social norms recognize the need to maximize individual control over its dissemination and use to prevent unjustified embarrassment or indignity.” (Ibid.)

Against that backdrop, the Court finds that Defendant served the Amended Notice of Taking the Deposition of Custodian of Records of Hoag and the Amended Notice of Taking the Deposition of Person Most Knowledgeable for Hoag, which attached as Exhibit A the amended subpoenas. Affixed to the amended subpoenas are Notices to Consumer naming Plaintiff only. (See Declarations of David H. Lieberthal (“Lieberthal”), Exhs. D.)

Thus, the Court finds that Defendant has not complied with Section 1985.3 with respect to any other “consumer” whose records may be subject to the amended subpoenas apart from Plaintiff. In addition, no party has addressed whether compliance with Section 1985.3 is unnecessary.

As such, the Court declines to compel compliance with the amended subpoenas by Hoag as to Categories 3 and 4 for “consumers” who are not Plaintiff, especially in light of a consumer’s right to privacy.

Hoag objected to Categories 3 and 4 on the grounds that the requests are vague, ambiguous and overbroad primarily because Hoag does not “perform” the noted procedures. Instead, the Hoag asserts that the noted procedures are performed at Hoag by health care providers not employed by Hoag. Defendant does not challenge Hoag’s assertions in his replies.

Therefore, the Court agrees with Hoag’s objections to the form of the requests, and declines to order compliance with the amended subpoenas as currently crafted. Plaintiff should have refined Categories 3 and 4 as indicated.

Notwithstanding, Hoag’s COR testified that documents responsive to Categories 3 and 4 as they relate to Plaintiff were produced to Defendant. (See Declaration of Andrew W. Salmond (“Salmond”) (Opposition to COR Motion), Exh. G, 1816-19:17.) Similarly, Hoag’s PMK indicated that documents responsive to Category 3 concerning Plaintiff were produced. (See Declaration of Salmond (Opposition to PMK Motion), Exh. F, 19: 10-15.) Accordingly, the Court determines that Defendant’s motions are moot in relation Plaintiff.

“The objection based upon burden must be sustained by evidence showing the quantum of work required, while to support an objection of oppression there must be some showing either of an intent to create an unreasonable burden or that the ultimate effect of the burden is incommensurate with the result sought.” (West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 417.) The California Supreme Court further noted that “[s]ome burden is inherent in all demands for discovery. The objection of burden is valid only when that burden is demonstrated to result in injustice.” (Id. at p. 418.)

Hoag also contends that responding to Categories 3 and 4 would require Hoag to prepare a compilation, abstract, audit or summary of documents citing to Brotsky v. State Bar of Cal. (1962) 57 Cal.2d 287 (hereafter Brotsky) in which the California high court addressed in part whether the petitioner’s discovery requests were burdensome and oppressive. As to those objections, the supreme court stated:

Under the provisions of the discovery statutes respondent is given two clear alternatives. If the search of its own records, without benefit of index, would be found burdensome, it has the option of directing petitioner to the place where such records are maintained, and requiring him to make the search (Code Civ.Proc. s 2030, subd.(c)). But, of course, respondent does not wish to turn petitioner loose in its files for the obvious reason that portions of those files are confidential. If the confidentiality which it claims prevents its taking advantage of the alternative which ahs (sic) been provided for its benefit, then it must suffer the burden.

(Brotsky, supra, 57 Cal.2d at 304, emphasis added.) Based upon the context of the discovery issues herein, the Court finds Hoag’s reliance on Brotsky to be faulty.

Nevertheless, the Court finds that Hoag has not made an adequate showing that responding to Categories 3 and 4 is burdensome, regardless of whether the requests are limited to Plaintiff or not.

Hoag objects to Categories 3 and 4 of the amended subpoenas under the auspices of Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541. In particular, Hoag asserts that Plaintiff’s damages are limited to what amounts health care providers were paid as opposed to amounts billed. As such, according to Hoag, the data sought by Defendant is irrelevant.

Without addressing the merits of Hoag’s contention, the Court finds that Hoag waived the relevance objection by failing to raise it in the written objections to the amended subpoenas. (See Declarations of Lieberthal, Exhs. F; see, e.g., Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1125 [“The failure to timely respond to an inspection demand waives all objections to the demand, including objections based on privilege . . . and the failure to assert a specific objection waives that particular objection”].)

“The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2025.480, subd. (j).)

Similarly, “[i]n making an order pursuant to motion made under subdivision (c) of Section 1987 or under Section 1987.1, the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney's fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” (Code Civ. Proc., § 1987.2, subd. (a).)

Here, the Court finds that the imposition of monetary sanctions against either party would be unjust and declines to do so.

The Court denies Defendant’s Motions to Compel Further Responses from the Custodian of Records and the Person Most Knowledgeable of Hoag. Further, the Court denies Defendant’s and Hoag’s requests for monetary sanctions.

Defendant shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith.

[1] “This initial inquiry is necessary to permit courts to weed out claims that involve so insignificant or de minimis an intrusion on constitutionally protected privacy interests as not even to require an explanation or justification by the defendant.” (Lewis v. Superior Court (2017) 3 Cal.5th 561, 571 [cleaned up].)

DEPARTMENT	207
HEARING DATE	December 18, 2024
CASE NUMBER	23SMCV00980
MOTIONS	1. Motion to Compel Further Deposition Responses From The Custodian of Records of Non Party Hoag Orthopedic Institute-Surgery Center 2. Motion to Compel Further Deposition Responses From The Person Most Knowledgeable of Non Party Hoag Orthopedic Institute-Surgery Center
MOVING PARTY	Defendant Melvin Markman
OPPOSING PARTY	Non Party Hoag Orthopedic Institute-Surgery Center