Judge: Michelle C. Kim, Case: 19STCV12152, Date: 2023-05-17 Tentative Ruling

Case Number: 19STCV12152    Hearing Date: May 17, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

On April 9, 2019, Plaintiff Ilan N. Rosen Janfaza (“Plaintiff”) filed this action against Defendants Andres Gutierrez and Elizabeth Gutierrez (collectively “Defendants”) for damages arising from a rear-end automobile accident that occurred on April 10, 2017.

On September 13, 2022, Defendants caused to be issued a deposition subpoena for personal appearance and production of documents and things to Payam Yermian, D.C., who treated Plaintiff with respect to Plaintiff’s claimed injuries.  Now Defendants move to compel non-party witness Payam Yermian, D.C., to appear and testify at deposition and produce documents as requested by the deposition subpoena for personal appearance and production of documents and things.

a. Motion to Compel Non-Party to Comply with Subpoena

A party seeking discovery from a person who is not a party to the action may obtain discovery by oral deposition, written deposition, or deposition for production of business records.  (Code of Civ. Proc., § 2020.010.)  A deposition subpoena may command: (1) only the attendance and testimony of the deponent, (2) only the production of business records for copying, or (3) the attendance and testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things.  (Code of Civ. Proc., § 2020.020.)  

The court may, on motion or on the court’s own motion after giving notice and an opportunity to be heard, make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms and conditions as the court shall declare, including protective orders.  (Code of Civ. Proc., § 1987.1, subd. (a).)

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.”  (Cal. Rules of Court, Rule 3.1346.) 

            Defendants move to compel Payam Yermian, D.C. to comply with the deposition subpoena.  In support of their motion, they provide the declaration of their attorney, Angela Boiadjian.  The declaration states that Plaintiff revealed in response to Defendants’ form interrogatories, that he was treated with Payam Yermian, D.C. for pain resulting from the injuries allegedly sustained from this subject accident.  (Boiadjian Decl., ¶ 3; Exh. “A.”)  On September 13, 2022, Defendants caused to be issued a deposition subpoena for personal appearance and production of documents and things to Payam Yermian, D.C relating to Plaintiff’s neck, back, jaw, teeth, headaches, and TMJ.  (Id., at ¶ 4; Exh. “B.”)  The deposition was personally served on September 23, 2022.  (Id.)  Defendants received no objection or opposition to the deposition subpoena.  (Id., ¶ 5.)  Also, Payam Yermian, D.C. did not ask for a change and or accommodation at to the date, time, and or location stated in the deposition subpoena.  (Id., at ¶ 6.) Payam Yermian, D.C. failed to appear at the October 14, 2022 deposition and did not produce any records in response to the deposition subpoena.  (Id., at ¶ 7.)  To date, Defendants have yet to obtain Payam Yermian, D.C.’s deposition or records.  (Id., at ¶ 8.) 

            Payam Yermian, D.C. failed to comply with a valid deposition subpoena.  The deposition subpoena was properly served by personal service, and the medical records sought are necessary for Defendants to evaluate Plaintiff’s claims.  Also, no objection was served, no protection order was sought, and no opposition to this motion was filed. 

Therefore, the motion to compel compliance filed by Defendants is GRANTED. 

Payam Yermian, D.C. is ORDERED to appear and testify at deposition and to produce all documents requests in the subpoena issued by Defendants.

b. Sanctions

The court may in its discretion “award the amount of the reasonable expenses incurred in making or opposing the motion [to compel a nonparty’s compliance to a subpoena], 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 (a).

A nonparty’s failure to comply with a deposition subpoena may be punished for contempt under Chapter 7 (commencing with Section 2023.010) and may be subject to the forfeiture and payment of damages set forth in Section 1992. (Code Civ. Proc., § 2020.240.)  

Code of Civil Procedure section 2023.030, subdivision (a) provides, in pertinent part, that the court may impose a monetary sanction on the one engaging in the misuse of the discovery process to pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.  A misuse of the discovery process includes failing to respond or to submit to an authorized method of discovery. (Code Civ. Proc., § 2023.010, subd. (d).)

Defendants state sanctions are warranted in the total amount of $1,445.51, which is comprised of $945.51 for expenses and attorney’s fees and a $500 forfeiture. (Boiadjian Decl., at ¶ 10.)  The $945.51 for expenses and attorney’s fees includes (2 hours at $160.17 per hour) in the form of attorney’s review of this motion and declaration, plus (.75 hour at $160.17 per hour) for anticipated time and expense to review any opposition and prepare a reply, plus (1 hour at $160.17 per hour) for an appearance at the motion hearing, plus (2 hours at $75 per hour) of paralegal time to reserve the hearing and create a draft of the motion, plus ($135.00) cost for personal service of this motion on Payam Yermian, D.C. motion, plus ($60) motion filing fee.  (Id.) 

The Court finds that Payam Yermian, D.C.’s conduct constitutes a misuse of the discovery process.  Further, the Court does not find that Payam Yermian, D.C. acted with substantial justification or that other circumstances make the imposition of sanctions unjust as no opposition has been filed, and as such, no explanation has been provided.  

Therefore, Defendants’ request for sanctions is GRANTED.  However, the total amount is reduced by $120.13 because no opposition was filed.  Payam Yermian, D.C. is ORDERED to pay Defendants and Defendants’ counsel of record sanctions in the total amount of $1325.38 within 20 days of this ruling.

Moving Defendants are ordered to give notice.   

PLEASE TAKE NOTICE: 

·         Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. 

·         If a party intends to submit on this tentative ruling,¿the party must send an email to the court at¿sscdept31@lacourt.org¿with the Subject line “SUBMIT” followed by the case number.¿ The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.¿¿ 

·         Unless¿all¿parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.¿ You should assume that others may appear at the hearing to argue.¿¿ 

·         If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.¿ After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.¿ 

Dated this 17^th day of May 2023

SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

On April 9, 2019, Plaintiff Ilan N. Rosen Janfaza (“Plaintiff”) filed this action against Defendants Andres Gutierrez and Elizabeth Gutierrez (collectively “Defendants”) for damages arising from a rear-end automobile accident that occurred on April 10, 2017. 

On September 13, 2022, Defendants caused to be issued a deposition subpoena for personal appearance and production of documents and things to Tarzana Dental Specialists, who treated Plaintiff with respect to Plaintiff’s claimed injuries.  Now Defendants move to compel non-party witness Tarzana Dental Specialists to appear and testify at deposition and produce documents as requested by the deposition subpoena for personal appearance and production of documents and things.

a. Motion to Compel Non-Party to Comply with Subpoena

A party seeking discovery from a person who is not a party to the action may obtain discovery by oral deposition, written deposition, or deposition for production of business records.  (Code of Civ. Proc., § 2020.010.)  A deposition subpoena may command: (1) only the attendance and testimony of the deponent, (2) only the production of business records for copying, or (3) the attendance and testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things.  (Code of Civ. Proc., § 2020.020.)  

The court may, on motion or on the court’s own motion after giving notice and an opportunity to be heard, make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms and conditions as the court shall declare, including protective orders.  (Code of Civ. Proc., § 1987.1, subd. (a).)

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.”  (Cal. Rules of Court, Rule 3.1346.) 

            Defendants move to compel Tarzana Dental Specialists to comply with the deposition subpoena.  In support of their motion, they provide the declaration of their attorney, Angela Boiadjian.  The declaration states that Plaintiff revealed in response to Defendants’ form interrogatories, that he was treated with Tarzana Dental Specialists for pain resulting from the injuries allegedly sustained from this subject accident and that he will require future additional treatment.  (Boiadjian Decl., ¶ 3; Exh. “A.”)  On September 13, 2022, Defendants caused to be issued a deposition subpoena for personal appearance and production of documents and things to Tarzana Dental Specialists relating to Plaintiff’s neck, back, jaw, teeth, headaches, and TMJ.  (Id., at ¶ 4; Exh. “B.”)  The deposition was personally served on September 23, 2022.  (Id.)  Defendants received no objection or opposition to the deposition subpoena.  (Id., ¶ 5.)  Also, Tarzana Dental Specialists did not ask for a change and or accommodation at to the date, time, and or location stated in the deposition subpoena.  (Id., at ¶ 6.)  Tarzana Dental Specialists failed to appear at the October 14, 2022 deposition and did not produce any records in response to the deposition subpoena.  (Id., at ¶ 7.)  To date, Defendants have yet to obtain Tarzana Dental Specialists’ deposition or records.  (Id., at ¶ 8.) 

            Tarzana Dental Specialists failed to comply with a valid deposition subpoena.  The deposition subpoena was properly served by personal service, and the medical records sought are necessary for Defendants to evaluate Plaintiff’s claims.  Also, no objection was served, no protection order was sought, and no opposition to this motion was filed. 

Therefore, the motion to compel compliance filed by Defendants is GRANTED. 

Tarzana Dental Specialists is ORDERED to appear and testify at deposition and to produce all documents requests in the subpoena issued by Defendants.

b. Sanctions

The court may in its discretion “award the amount of the reasonable expenses incurred in making or opposing the motion [to compel a nonparty’s compliance to a subpoena], 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 (a).

A nonparty’s failure to comply with a deposition subpoena may be punished for contempt under Chapter 7 (commencing with Section 2023.010) and may be subject to the forfeiture and payment of damages set forth in Section 1992. (Code Civ. Proc., § 2020.240.)  

Code of Civil Procedure section 2023.030, subdivision (a) provides, in pertinent part, that the court may impose a monetary sanction on the one engaging in the misuse of the discovery process to pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.  A misuse of the discovery process includes failing to respond or to submit to an authorized method of discovery. (Code Civ. Proc., § 2023.010, subd. (d).)

Defendants state sanctions are warranted in the total amount of $1,445.51, which is comprised of $945.51 for expenses and attorney’s fees and a $500 forfeiture. (Boiadjian Decl., at ¶ 10.)  The $945.51 for expenses and attorney’s fees includes (2 hours at $160.17 per hour) in the form of attorney’s review of this motion and declaration, plus (.75 hour at $160.17 per hour) for anticipated time and expense to review any opposition and prepare a reply, plus (1 hour at $160.17 per hour) for an appearance at the motion hearing, plus (2 hours at $75 per hour) of paralegal time to reserve the hearing and create a draft of the motion, plus ($135.00) cost for personal service of this motion on Tarzana Dental Specialists motion, plus ($60) motion filing fee.  (Id.)

The Court finds that Tarzana Dental Specialists’ conduct constitutes a misuse of the discovery process.  Further, the Court does not find that Tarzana Dental Specialists acted with substantial justification or that other circumstances make the imposition of sanctions unjust as no opposition has been filed, and as such, no explanation has been provided.  

        Therefore, Defendants’ request for sanctions is GRANTED.  However, the total amount is reduced by $120.13 because no opposition was filed. Tarzana Dental Specialists is ORDERED to pay Defendants and Defendants’ counsel of record sanctions in the total amount of $1325.38 within 20 days of this ruling.

Moving Defendants are ordered to give notice.   

PLEASE TAKE NOTICE: 

·         Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. 

·         If a party intends to submit on this tentative ruling,¿the party must send an email to the court at¿sscdept31@lacourt.org¿with the Subject line “SUBMIT” followed by the case number.¿ The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.¿¿ 

·         Unless¿all¿parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.¿ You should assume that others may appear at the hearing to argue.¿¿ 

·         If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.¿ After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.¿ 

Dated this 17^th day of May 2023