Judge Peter A. Hernandez, Case BC700926 2022-09-28 Tentative Ruling

Defendant/Cross-Complainant The Bread Factory Artisans, Inc.’s Motion to Compel Deposition of Marissa Mendoza is GRANTED. Sanctions are declined.

Plaintiff Oscar Rideau, a minor, by and through his Guardian Ad Litem Javen Frausto (“Plaintiff”) alleges as follows:

On August 9, 2013, Plaintiff sustained injuries after a baked goods cabinet fell on him.

On April 5, 2018, Plaintiff filed a complaint, asserting causes of action against Defendants Smart & Final, LLC, Smart & Final Stores, LLC, Smart & Final Properties I, LLC, The Bread Factory Artisans, Inc. (“BFA”) and Does 1-100 for:

On July 12, 2019, Smart & Final, Inc. and Smart & Final Stores, LLC (erroneously sued as Smart & Final, LLC and Smart & Final Properties I, LLC) (collectively, “Smart & Final”) filed two “Amendment[s] to [Cross-]Complaint,” wherein BFA was named in lieu of Roe 1 and The Bread Factory, Inc. was named in lieu of Roe 2.

On September 26, 2019, this case was transferred from Department 5 of the Personal Injury Courts to this instant department.

On November 25, 2019, Smart & Final filed a First Amended Cross-Complaint, asserting causes of action against Roes 1-50 for:

On December 17, 2019, BFA filed a cross-complaint, asserting causes of action against Smart & Final and Roes 1-20 for:

The Final Status Conference is set for November 15, 2022. Trial is set for November 29, 2022.

Where the witness whose deposition is sought is not a party (or a “party-affiliated” witness), a subpoena must be served to compel his or her attendance, testimony, or production of documents. (Code Civ. Proc., §§ 2020.010, subd. (b), 2025.280, subd. (b); see Terry v. SLICO (2009) 175 Cal.App.4^th 352, 357). A deposition subpoena is enforceable by a motion to compel compliance (Code Civ. Proc. § 1987.1/§ 2025.480), contempt proceedings (Code Civ. Proc., §§ 1209, subd. (a)(10), 1991.1, 2020.240, 2023.030, subd. (e)) and/or a civil damages action by the aggrieved party (Code Civ. Proc., § 1992.).

BFA moves the court for an order compelling the attendance and testimony of third-party Marissa Mendoza, MFT (“Mendoza”) at deposition. BFA also seeks sanctions against Plaintiff and his counsel of record, Babak Kheiri (“Kheiri”), jointly and severally, in the amount of $3,525.45.

Plaintiff contends that the motion is procedurally improper on the basis that Mendoza “objected on the grounds and stated conditions that had to have been met for [Mendoza] to be produced for deposition.” (Opposition, 7:5-7.) Plaintiff does not specifically represent that objections were made as to the production of any requested documents. Plaintiff fails to provide the court with the applicable subdivision of California Rule of Court rule 3.1345 that would apply in this instance. Regardless, the court has discretion to consider the motion notwithstanding a violation of CRC Rule 3.1345. (See Mills v. U.S. Bank (2008) 166 Cal.App.4^th 871, 893.) Further, Plaintiff has failed to articulate any prejudice caused by the lack of any separate statement.

Plaintiff further contends that the motion is procedurally improper because Mendoza was not included on the concurrently filed proof of service. Mendoza, however, has filed her own response to the motion and has not objected to the motion on the basis of insufficient notice. The court will proceed to the merits of the motion.

In this case, Plaintiff alleges that he suffered emotional distress and has treated with therapists related to the August 9, 2013 incident. (Schrader Decl., ¶ 2, Exhs. 1 and 2.) BFA’s counsel Dane Schrader (“Schrader”) represents that after Plaintiff identified Mendoza as a treating physician for his care related to the accident, BFA served a subpoena duces tecum to Mendoza’s employer, The Institute of Redesign & Learning, for all records related to Mendoza’s treatment of Plaintiff. (Id., ¶ 3.) Plaintiff served objections but thereafter waived same and permitted production of his treatment records with Mendoza, without limitation. (Id., ¶ 3, Exh. 3.) In June 2022, Schrader noticed Mendoza’s deposition for July 6, 2022. (Id., ¶ 4.) Prior to the deposition, Mendoza’s counsel, Kelly Henry (“Henry”), advised Schrader that Mendoza required Plaintiff’s execution of a HIPPA release before Mendoza would appear for the deposition. (Id.) Schrader forwarded the release to Kheiri and asked that Plaintiff execute same to permit the deposition to proceed. (Id., ¶¶ 4, Exhs. 4 and 5.) Kheiri refused to have Plaintiff execute the release. (Id., ¶ 5, Exh. 6.) After noticing Mendoza’s deposition, Schrader requested that Mendoza and Plaintiff agree to waive the need for a certificate of non-appearance at deposition as a prerequisite for the instant motion; while Henry agreed to the waiver, Kheiri did not. (Id., ¶ 6, Exh. 7.) On July 6, 2022, Schrader appeared at Mendoza’s deposition and took a certificate of non-appearance as Mendoza and no other party appeared. (Id., ¶ 7, Exh. 8.) Schrader did not receive any objections from Plaintiff prior to the deposition. (Id., ¶ 7.)

Plaintiff, in opposition, claims that Defendant cannot compel Plaintiff to produce a non-party witness which Plaintiff has control over. The motion is not requesting as such. Additionally, the court acknowledges that it cannot mandate that Plaintiff execute a HIPPA authorization, inasmuch as the court does not have the power to create additional methods of discovery; the motion, however, is likewise not requesting as such.

The motion does request the court for an order compelling Mendoza’s attendance and testimony at deposition. Mendoza, for her part, represents that she “is ready, willing, and able to provide testimony if the Plaintiff authorizes the same via a HIPAA waiver, or if the Court orders her to do so.” (Mendoza Opp., 9:7-8.) The court determines that Plaintiff has both expressly and impliedly waived any privacy rights related to his treatment with Mendoza[1], by previously consenting to disclosure of Mendoza’s treatment records, by claiming emotional distress due to the accident and identifying Mendoza as a treating physician and by failing to object to Mendoza’s deposition subpoena. Accordingly, the court will issue an order compelling Mendoza’s deposition at this juncture. The motion is granted.

The court declines to impose sanctions against Plaintiff and his counsel of record. Although the motion was previously unable to proceed due to Mendoza’s unwillingness to appear absent a court order or executed HIPPA waiver (the latter of which Plaintiff could have furnished), Plaintiff was not under any obligation to provide such waiver.

The court likewise declines to award Plaintiff sanctions under the circumstances.

[1] Evidence Code § 912, subdivision (a) provides, in relevant part, that “the right of any person to claim a privilege provided by . . . 1014 (psychotherapist-patient privilege) . . . is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone. Consent to disclosure is manifested by any statement or other conduct of the holder of the privilege indicating consent to the disclosure, including failure to claim the privilege in any proceeding in which the holder has legal standing and the opportunity to claim the privilege.” Further, Evidence Code § 1016, subdivision (a) provides that “[t]here is no privilege under this article as to a communication relevant to an issue concerning the mental or emotional condition of the patient if such issue has been tendered by: (a) The patient. . .”