Judge Ralph C. Hofer, Case Number: 23GDCV01261, Date: 2024-05-03 Tentative Ruling

Plaintiff Olga Miroshnikova alleges that in February of 2022, plaintiff was lawfully turning left into the left lane at an intersection in Glendale, when defendant Nairi Hunanyan operated his vehicle without caution and in such an unsafe manner that it caused a violent collision into plaintiff’s vehicle, as a result of which plaintiff is hurt and physically injured, suffering damages, as well as property damages.

Plaintiff alleges that all defendants, including defendant ProCare Transportation Inc., operated, employed the person who operated the vehicle in the course of their employment, owned the vehicle, and negligently entrusted the vehicle.

Plaintiff also alleges that defendants’ conduct constitutes negligence per se in that defendants’ conduct violated Vehicle Code section 22350, which provides that no person shall drive a motor vehicle upon a highway at a spped greater than is reasonable or prudent.

It is also alleged that under the permissive use doctrine, defendants as the owners or bailees of the vehicle are statutorily liable for the acts and commissions of the driver of their vehicle to whom permission to operate the vehicle was given at the time of the collision.

Defendants ProCare Transportation, Inc. (ProCare) and Nairi Hunanyan seek an order compelling third party Chester Litvin, Ph.D to produce business records which were requested in a deposition subpoena for production of business records. The records requested are all documents and records pertaining to the care, treatment, and examination of plaintiff Olga Miroshnikov from 1/1/2017 to the present. [Ex. A, Attach. 3].

Under CCP § 2017.010, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action..., if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.”

“(c) Personal service of any deposition subpoena is effective to require all of the following of any deponent who is a resident of California at the time of service

In this case, the moving papers fail to show that a deposition subpoena was personally served on the deponent. The deposition subpoena submitted with the moving papers is not signed by the person issuing the subpoena, and the proof of service of deposition subpoena submitted also is not signed or dated, and does not state the date of delivery, or the time of delivery. [Hussein Decl., para. 3, Ex. A]. The court accordingly is unable to determine that defendants have obtained personal jurisdiction over the third-party deponent here or have personally served the third party so that the deponent is required to provide the specified production, or that the deponent has failed to comply with the subpoena by a date following the date of service.

There is a Notice to Consumer submitted, which includes a proof of service by mail on the consumer (plaintiff), which is signed and indicates the date of mailing. [Hussein Decl., para. 3, Ex. A,

What has apparently occurred here is that counsel has attached a copy of the deposition subpoena which was prepared by Nationwide Legal, with a cover letter which indicates that Nationwide Legal is in the process of scheduling the location to serve and copy the records, and requests that the subpoena be signed, and further indicates that Nationwide Legal, “will return the proof of service with the records so that you may file them with the court if necessary.” [Hussein Decl., para. 3, Ex. A]. The subpoena submitted has not been signed, and any such proof of service has not been filed with the court.

Defendants accordingly have failed to establish that the subject deposition subpoena was in fact personally served on the deponent, triggering personal jurisdiction or any duty to produce requested records. The third-party deponent, a stranger to this action, is entitled to proper personal service, and to proof in any moving papers that such service occurred. The moving papers accordingly fail to establish any basis for this court to exercise personal jurisdiction over a third party or to enforce the subject subpoena.

The parties are ordered to meet and confer in good faith prior to the filing of any further motion on this issue, particularly in light of the lack of objection by plaintiff, who was served with a notice to consumer, failed to object, and could easily provide a consent to the production of her medical records to avoid further motion practice.

There is insufficient showing that the third-party deponent was personally served with the subject deposition subpoena for production of business records.

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