Judge: Monica Bachner, Case: 20STCV17928, Date: 2022-09-12 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time.  See, e.g., CRC Rule 324(b).   All parties are otherwise encouraged to appear by Court Call for all matters.

Case Number: 20STCV17928    Hearing Date: September 12, 2022    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Cross-Defendant CMS Construction, Inc.’s unopposed motion to compel Cross-Complainant Lewis Seiden to appear for deposition is granted. Seiden is to appear for deposition within 15 days.

CMS’s unopposed request for sanctions deposition is denied.

Seiden’s motion to quash CMS’s deposition subpoenas on healthcare providers is denied. Seiden’s motion, in the alternative, that the Court limit the subpoenas is granted.  The subpoenas are limited to records for the period of August 2020 to present.

CMS’s request for sanctions is denied.

A.   CMS’s Motion to Compel Seiden to Appear for Deposition

Cross-Defendant CMS Construction, Inc. (“CMS”) moves for an order compelling Cross-Complainant Lewis Seiden (“Seiden”) to appear for deposition.  (Notice of CMS Motion, pg. 2.)  CMS also requests an award of monetary sanctions against Seiden in the amount of $1,627.50. (Notice Motion, pg. 2; C.C.P. §2025.450.) 

Background

On May 11, 2020, Plaintiff Bogota Corporation (“Plaintiff”) filed a complaint against Seiden for three causes of action for (1) declaratory relief; (2) breach of the covenant of good faith; and (3) conversion.  On October 26, 2020, Seiden filed his initial cross-complaint, and on November 10, 2021, Seiden filed the First Amended Cross-Complaint (“FACC”) against Cross-Defendants KMG3, LLC (“KMG3”), Craig Steven Den Besten (“Steve”), Randi Den Besten (“Randi”), and CMS, (collectively, “Cross-Defendants”) for eight causes of action: (1) breach of written agreement; (2) interference with prospective economic advantage; (3) fraud; (4) breach of quiet enjoyment; and (5) professional liability for personal injury; (6) negligence for personal injury; (7) premises liability for personal injury; and (8) intentional tort for personal injury.

           On June 20, 2022, CMS filed the instant motion to compel Seiden to appear for deposition and requested monetary sanctions against Seiden.  On June 30, 2022, this Court granted CMS’s Ex Parte Application to shorten time on the hearing and advanced the hearing date to September 12, 2022.  (6/30/22 Minute Order.)  On July 6, 2022, Seiden filed his notice of motion for protective order regarding his deposition, which is currently scheduled for January 5, 2023.  As of the date of this hearing, Seiden has not filed an opposition to CMS’s motion to compel his deposition. 

Motion to Compel Deposition

C.C.P. §2025.450(a) provides that, “[i]f, after service of a deposition notice, a party to the action…without having served a valid objection under Section 2025.410, fails to appear for examination…, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” (Emphasis added.)

C.C.P. §2025.410(a), provides that, “[a]ny party served with a deposition notice that does not comply with [the notice requirements in C.C.P. §§2025.210 through 2025.290] waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled, on the party seeking to take the deposition and any other attorney or party on whom the deposition notice was served.”

C.C.P. §2025.450(b)(1) provides that, “[t]he motion [to compel deposition] shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.”

CMS is entitled to an order compelling the deposition of Seiden.  On May 20, 2022, CMS propounded its notice of Seiden’s deposition, which was set for June 6, 2022. (CMS Motion, Decl. of Marak ¶¶7–8, Exh. A.)  CMS argues Seiden did not object to the deposition notice and did not appear for his deposition as scheduled.  (CMS Motion, p. 5; Decl. of Marak ¶9.)  In the days leading up to the scheduled June 6, 2022 deposition date, Seiden represented in a series of emails that he was not available to appear for the deposition and that he would not be able to reschedule a deposition for another 90 days.  (Decl. of Marak ¶10, Exh. B; Seiden’s Motion for Protective Order, Exhs. 2–12.)  CMS submitted evidence that on May 20, 24, and 25, 2022, CMS requested alternative dates for Seiden’s deposition to occur; however, Seiden did not provide available dates within thirty days of the scheduled deposition.  (Decl. of Marak, Exh. B.)  Seiden filed his Motion for Protective Order on July 6, 2022, thirty days after his scheduled June 6 deposition.

Seiden’s objections to the Notice were not valid objections under C.C.P. §2025.410(a). Seiden’s objections specify no error or irregularity in CMS’s Notice to justify his objection and only state that he is unavailable on the date noticed due to “financial, medical, scheduling unavailability, prejudice, and preference to be represented by counsel.”  (Decl. of Marak, Exh. B; Seiden Protective Order, Exh. 7.) Accordingly, CMS’s motion to compel deposition is properly made.  (C.C.P. §2025.450(a).)  CMS also submitted evidence suggesting it complied with the meet and confer requirement of C.C.P. §2025.450(b)(2). (CMS Motion, p. 5; Decl. of Marak, Exh. B.)

Based on the foregoing, CMS’s unopposed motion to compel Seiden to appear for deposition is granted.

Request for Sanctions

CMS’s request for monetary sanctions is denied.  C.C.P. 2025.450(g)(1) provides that: “If a motion [to compel deposition] is granted, the court shall impose a monetary sanction… in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

The Court finds that justice would not be served by imposing sanctions, as Seiden was unrepresented at the time his communications were made with CMS and did not wish to communicate via email about his specific health issues in the interest of privacy and offered to communicate with CMS over the phone.  (Decl. of Marak, Exh. B.)  Further, the Court notes CMS did not properly notice its request for monetary sanctions since it was made pursuant to C.C.P. §2025(j)(3), not C.C.P. §2025.450(g)(1).

Based on the foregoing, CMS’s unopposed request for monetary sanctions is denied.

B.   Seiden’s Motion to Quash CMS’s Deposition Subpoenas to Specified Healthcare Providers

Seiden moves to quash CMS’s subpoenas “seeking any and all of Mr. Seiden’s medical records, billing statements and images from five of his medical providers over a period of 40 years or more.” (Motion, pg. 3; Exh. 1 (Medical Records Subpoenas, lodged under seal); Opposition, Exh. B [Medical Records Subpoenas].)  In opposition, CMS requests an award of monetary sanctions against Seiden in the amount of $1,435 for misuse of the discovery process.  (Opposition, pg. 7.)

Background

On July 5, 2022, Seiden filed his motion to quash, or in the alternative, modify, CMS’s subpoenas on Seiden’s healthcare providers.  On July 8, 2022, this Court granted CMS’s Ex Parte Application to shorten the time on the hearing on Seiden’s motion to quash and advanced the hearing date to September 12, 2022.  (7/8/22 Minute Order.) On August 29, 2022, CMS filed its opposition to Seiden’s motion, and on September 2, 2022, Seiden filed his reply. 

In his operative SACC, Seiden alleges that after the sale of the Property closed on October 29, 2019, Vahab Aghai (“Aghai”), an owner and officer of Plaintiff (the seller), remained on the Property until August 2020 and, “[n]o sooner than he was safely off the property, did Steve, a principal of KGM3 (the buyer), together with CMS engineered a method to slowly poison Seiden, which, after months of exposure, caused Seiden to notice medical conditions he is informed are consistent with toxic exposure.  (SACC ¶¶14, 29-30.)  As such, based on Seiden’s SACC, the poisoning resulting in his alleged injuries began no earlier than August 2020. 

Motion to Quash

C.C.P. §1987.1(a) provides, in pertinent part, as follows: “If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things… at the taking of a deposition, the court, upon motion reasonably made by [a party]…, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.”

           On June 10, 2022, Defendant issued deposition subpoenas for production of business records on the Custodians of Records for (1) Cedars Sinai Medical Center (“Cedars”) [three subpoenas seeking all medical records, billing, and radiology images], (2) Cedars-Sinai Kerlan-Jobe Institute (“Cedars KJI”) [three subpoenas seeking all medical records, billing, and radiology images], (3) UCLA Health Systems (“UCLA HS”) [two subpoenas seeking all medical records, radiology], (4) Ronald Reagan UCLA Medical Center (“UCLA Reagan”) [one subpoena seeking billing], (5) Santa Monica UCLA Medical Center (“UCLA Santa Monica”) [one subpoena seeking billing], (6) UCLA Physicians Billing (“UCLA Billing”), and Spine & Sport Physical Therapy (“S&S PT”) [one subpoena seeking, records, billing, and radiology images].

The subpoenas sought three categories of business records, namely, all of Seiden’s medical records, all billing records, and any and all radiology imaging.  While language between certain subpoenas varies, by way of example, the subpoenas served on Cedars and Cedars KJI sought the following:

[A]ny and all records. Including but not limited to records of appointments, examinations, tests and/or laboratory tests, charts, memorandums, patient histories, radiology reports, diagnosis, care and treatment, therapy records, doctors' notes, nurses' notes, physician order sheets, exam sheets, physical therapy reports, narrative reports, and any other information regarding the assessment, observation, treatment, evaluation and prognosis of the patient. Please include high resolution color copies or digital copies of any and all photographs and/or videos taken of the patient.

[A]ny and all billing records. Please include copies of billing and patient information in relation to the assessment, treatment, prognosis of the patient, including but not limited to itemized billing statements showing the costs of services provided, copies of individual bills, the entire business file, financial file, insurance records, account history, workers compensation records, adjustments and/or reductions, admission agreements, advanced directive, alternative dispute resolution (ADR) agreement, MEDICAL, MEDICAID and MEDI-CARE information, diagnostic and procedure codes (i.e. CPT, HCPCS Level II, ICD-9 coding, ICD-10CM coding and ICD-10PCS), CMS-1500 / 837p / HCFA forms and UB92 bills, including total charges, private or government; emergency room physicians billing and radiology billing from all sources; documents identifying any request for reimbursement that has been made.

[A]ny and all radiology images. Such as x-rays, lateral x-rays, MRIs, CT Scans, Ultrasounds, Myelograms, Tomograms, MRAs, PET scans, Fluoroscopy and any other radiology studies taken on the above listed subject. Please include all other information and radiology reports regarding the assessment, observation, treatment and prognosis of the above listed subject. RADIOLOGY IMAGES BREAKDOWN: Please provide a breakdown of the radiology studies available along with the cost to duplicate the images on CD. If some or all of the studies are only available on film, please note on the breakdown along with the costs to duplicate on film. If there are studies that are no longer available due to your retention policy or were destroyed, please note that information on the Declaration of Custodian page of this request.

(Decl. of Marak ¶6, Exh. B [Opposition PDF pgs. 75-135].)

Seiden moves to quash the subpoenas on the grounds they constitute a serious invasion of his privacy under the California Constitution, article I, section 1.  (Motion, pg. 9.)  Seiden states that CMS has not made attempts to narrowly tailor its subpoenas, withdraw its subpoenas to avoid exposing unrelated, constitutionally protected information pertaining to his medical history and billing information with regards to areas of his body that are not at issue here, or seek less intrusive means to obtain relevant information.  (Motion, pgs. 9, 12.)  Seiden also argues that CMS’s deposition officer was not properly credentialed per California law.  (Motion, pgs. 13–14, Exh. 3.)

           In opposition, CMS asserts it has a compelling need for Seiden’s medical records sufficient to overcome Seiden’s privacy rights and any physician-patient privilege, citing to the scope of discovery allowable in a negligence action in C.C.P. § 2017.010.  (Opposition, pgs. 3­–4.)  CMS also cites to Seiden’s responses to Form Interrogatory 6.4, where Seiden identified providers who treated the injuries he attributes to the incident relevant to the causes of action.  (Opposition, pg. 6, Decl. of Marak, ¶5, Exh. A.)  CMS states that based on Seiden’s interrogatory responses, CMS issued subpoenas to those providers for medical records.  (Decl. of Marak ¶6, Exh. B.)  CMS attached correspondences with Seiden attempting to meet and confer about the contested subpoenas.  (Decl. of Marak ¶7, Exh. C.) 

           In reply, Seiden argues CMS blocked his statutory due diligence with regards to the credentials of CMS’s deposition officer.  (Reply, pgs. 1–2.)

The California Supreme Court “established a framework for evaluating potential invasions of privacy. 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. [Citation] 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 (2017) 3 Cal.5th 531, 552.)  There is a recognized right of privacy to a party’s confidential financial affairs, even when the information sought is relevant to the litigation.  (Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2021 Update) ¶¶8:303-8:303.2; citing Cobb v. Superior Court (1979) 99 Cal.App.3d 543, 550 [privacy as limit on discovery of defendant’s net worth where punitive damages sought].)  However, this right to privacy must be balanced with the legitimate and countervailing interests disclosure serves.

Seiden is not entitled to an order quashing the subpoenas.  The Court finds CMS is entitled to discovery of Seiden’s medical records as they pertain to Seiden’s discovery responses and the causes of action alleged against CMS in Seiden’s SACC. Seiden has not established an objectively reasonable expectation of privacy in the given circumstances or a threatened intrusion that is serious with respect to directly relevant medical records. Under the circumstances, Seiden has made claims that place his medical history directly at issue.  However, CMS is not entitled to discovery of Seiden’s entire medical history.  Accordingly, Seiden’s request that the Court limit the subpoenas is granted. As noted above, Seiden alleges the poisoning began in August 2020; as such, the subpoenas are limited to medical records from August 2020 to present.

Based on the foregoing, Seiden’s motion to quash is denied, however, the subpoenas are limited to the time period of August 2020 to the present.

CMS’s Request for Sanctions

In opposition, CMS requests monetary sanctions in the amount of $1,435 against Seiden for misuse of the discovery process on that basis that his motion is frivolous and entirely without merit.  (Opposition, pg. 7, Decl. of Marak ¶ 10.)  CMS is not entitled to an order awarding monetary sanctions against Seiden based on his filing of the instant motion. As discussed above, notwithstanding the Court’s ruling denying the motion to quash the subpoenas in their entirety, in light of CMS’s failure to narrowly tailor its requests to the relevant time periods and injuries alleged in Seiden’s SACC, Seiden’s motion has some merit.

Based on the foregoing, Cross-Defendant’s request for monetary sanctions is denied.

Dated:  September _____, 2022

Hon. Monica Bachner

Judge of the Superior Court