Judge: Nick A. Dourbetas, Case: 2019-01106141, Date: 2022-08-26 Tentative Ruling

Motion to Quash Discovery Subpoena

Plaintiff Isabel Carlin’s (plaintiff) motion to quash discovery subpoenas is GRANTED as to the subpoena directed to David W. Cardona, M.D. (Dr Cardona), and MOOT as to the subpoena directed to Atlas Family Health Clinic, Inc. (Atlas). (See Code Civ. Proc., § 1987.1.)

The court ORDERS defendant In-N-Out Burgers’ (defendant) subpoena issued to Dr. Cardona hereby quashed.

The motion is MOOT as to the subpoena issued to Atlas, as Atlas has already responded to the subpoena with an affidavit of no records. (See Yencarelli Decl. ¶ 22, Ex. O [6/27/22 certificate of no records].)

This case was previously set for trial on 3/7/22, and all parties answered ready for trial on that date. (ROA No. 217.) The trial was trailed for a week, and the court set a status conference for counsel and the court to select a new trial date. (See ROA No. 228.) On 3/14/22, a status conference was held and the parties stipulated to continuing trial to 7/25/22. (ROA No. 234.) The 3/14/22 minute order does not state that discovery is to remain closed. (See ibid.)

However, the parties’ briefing, and evidence presented with respect to this motion indisputably show they agreed that discovery was to remain closed despite the continuance of trial from 3/7/22 to 7/25/22. (See, e.g., Yencarelli Decl. ¶ 16 [close of discovery in February 2022], Ex. J [agreeing to withdraw 3/16/22 subpoena to Blue Cross on the “mistaken” belief that it was issued after the close of discovery in February 2022, agreeing that discovery is closed]; Opp. at p. 7 [the parties agreed discovery was closed during the time period between the March and July trial dates]; see also id. at pp. 2-4 [discussing reopening discovery, documents produced after close of discovery, intent to file a motion to reopen discovery]; Narayan Decl. ¶ 4, Ex. 2.)

Thus, discovery was closed, and remained closed, from 2/7/22 and thereafter, and remains closed to this date. (See Code Civ. Proc., § 2024.020, subd. (a); id., § 2016.060; see also ROA No. 260.)

Defendant, despite being fully aware that discovery was closed as of February 2022 (or more specifically 2/7/22), improperly issued the two subject subpoenas to Dr. Cardona and Atlas more than four months later on 6/10/22, without first discussing the possibility of reopening discovery with plaintiff or bringing a motion and obtaining a court order allowing it to do so.

Once the discovery cutoff date has run and discovery has closed, the only means provided in the Discovery Act for reopening discovery is either obtaining an agreement with the other parties to reopen discovery (see Code Civ. Proc., § 2016.030), or a motion for leave of court. (See Code Civ. Proc., § 2024.050, subd. (a); In re Marriage of Boblitt (2014) 223 Cal.App.4th 1004, 1024.)

Thus, if defendant wanted to reopen discovery for the purpose of issuing the subject subpoenas, defendant should have attempted to obtain an agreement from plaintiff to do so before issuing the subpoenas on 6/10/22, and if such an agreement could not be reached, then defendant should have brought a motion to reopen discovery supported by the requisite showing necessary for such relief, including, inter alia, defendant’s “diligence or lack of diligence ..., and the reasons that the discovery was not completed or that the discovery motion was not heard earlier.” (Code Civ. Proc., § 2024.050, subd. (b).)

Defendant did not seek relief through either of these methods before issuing the subject subpoenas, and still has yet to bring a motion to reopen discovery despite the fact that defendant has known of its need for this discovery since 5/10/22; defendant sought the discovery on 6/10/22 at a time when trial was set for 7/25/22 (and which trial date was not continued to the present trial date until 7/19/22); and this motion seeking to quash that discovery has been pending for nearly two months.

This only further illustrates defendant’s apparent lack of diligence in obtaining this discovery. Defendant makes much ado about the fact that plaintiff did not disclose Dr. Cardona or Atlas in her responses to defendant’s special interrogatories. But regardless of whether plaintiff should have disclosed these providers in her responses to defendant’s special interrogatories—defendant should have subpoenaed plaintiff’s medical insurance provider(s) for relevant records early on in discovery. It is no secret that a plaintiff’s past medical history is relevant to the issues in a personal injury action, and defendant provides zero explanation as to why it did not diligently seek this discovery sooner. Defendant appeared in this case on 1/23/20, and has been represented by the same counsel (who has now also associated in a second set of counsel) since that time to date. Defendant fails to explain why it did not issue a subpoena for plaintiff’s insurance records from Blue Cross until 1/28/22, and did not serve the subpoena on Blue Cross until 2/2/22, at a time trial was set to begin on 3/7/22 (and would have in fact begun on that date if there was a courtroom available for trial). Further, defendant’s original subpoena, improperly served by mail on nonparty Blue Cross on 2/2/22 (see Yencarelli Decl. ¶ 14, Ex. H; Code Civ. Proc., §§ 2020.220, subds. (b)-(c) [subpoenas to nonparties effective upon personal service], 1985.3, subd. (k) [“[f]ailure to comply with this section shall be sufficient basis for the witness to refuse to produce the personal records sought by a subpoena duces tecum”]), required the production of records on 2/28/22, well past the discovery cutoff date of 2/7/22. (See Yencarelli Decl. at Ex. G.) Thus, even if defendant had timely served the original subpoena on Blue Cross before discovery cutoff, nothing entitled defendant to the records demanded by that subpoena if Blue Cross chose not to comply, because the production date was past the discovery cutoff date. (See Code Civ. Proc., §§ 2024.020, subd. (a) [a party is entitled to “complete” discovery on or before the 30th day before the trial date], 2024.010 [“discovery is considered completed on the day a response is due or on the day a deposition begins”].) Defendant fails to explain its egregious delay in seeking this crucial discovery.

Sanctions in the amount of $2,060 are GRANTED in favor of plaintiff, and against defendant’s counsel, attorney Jennifer N. Yencarelli of Wolfe & Wyman LLP, payable within 30 days. (See Code Civ. Proc., § 1987.2.) Defense counsel has opposed this motion without substantial justification for the reasons discussed above. There is no question that discovery was closed when defense counsel issued the subject subpoenas on 6/10/22, and that defense counsel issued them anyway without first obtaining an agreement of the parties or a court order reopening discovery for this purpose. Instead of seeking leave to conduct this discovery supported by the showing necessary for such relief, defendant has opposed this motion without substantial justification based on the untenable position that the subpoenas were properly issued. Sanctions are therefore warranted.

Plaintiff shall give notice.