TENTATIVE RULING

Calendar: 8

Date: 2/3/2023

Case No: BC 699002 Trial Date:  March 6, 2023

Case Name:  Goodrich v. Padilla, Jr., et al.  

MOTION TO COMPEL FURTHER REPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS

Moving Party: Defendants Guillermo Eduardo Padilla, Jr. and Greenwood Motor Lines, Inc. dba R+L Carriers 

Responding Party: Plaintiff Lisa Goodrich        

RELIEF REQUESTED:

Order compelling plaintiff Lisa Goodrich to provide a signed authorization in further response to Defendant’s Request for Production of Documents, Set Three, No. 55, and a signed authorization with which to obtain sworn testimony from plaintiff’s psychotherapist, Beverly Lockwood Conlan.

FACTUAL BACKGROUND:

Plaintiff Lisa Goodrich alleges that on June 19, 2017, while she was a passenger in a vehicle which was entering an intersection, defendant Guillermo Eduardo Padilla, Jr., driving a tractor-trailer, made an unsafe left-hand turn, causing a massive collision, which totaled the vehicle where plaintiff was a passenger and caused a life-changing injury to plaintiff requiring a cervical fusion surgery.  The complaint alleges that defendant was negligent per se, and caused the collision in violation of the California Vehicle Code (failure to yield right of way while making left hand turn).  The complaint alleges that at the time of the collision, defendant was driving a truck owned by defendant R+L Carriers in the course and scope of defendant Padilla’s employment with defendant R+L Carriers.  

The file shows that on January 17, 2023, the court heard an ex parte application brought by defendants for an order continuing the trial date and shortening time for a hearing on this motion to compel further responses to requests for production.   The ex parte application was granted and the trial was continued from February 3, 2023 to March 6, 2023, and the hearing on this motion, originally scheduled for February 17, 2023, was advanced and set on February 3, 2023. 

ANALYSIS:

Procedural

Citation to Unpublished Authority

The moving papers cite and discuss an unpublished decision, Valentine Capital Retirement Planning Group, Inc. v. Wixon (2005) 2005 WL 3196767.   

Under CRC Rule 8.1115:

 “(a) Except as provided in (b), an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action.”

Subdivision (b) states:

“An unpublished opinion may be cited or relied on:

(1) When the opinion is relevant under the doctrines of law of the case, res judicata or collateral estoppel; or 

(2) When the opinion is relevant to a criminal or disciplinary action because it states reasons for a decision affecting the same defendant or respondent in another such action.” 

The moving papers concede that the decision is unpublished, and that defendants “recognize it is not citable,” but defendants nevertheless cite it, and indicate defendants are using it to show that courts have recognized and upheld orders to compel authorizations.  This presentation of the unpublished decision is a deliberate violation of the court rule.  The argument does not justify such a violation.  If any litigant could rely on an unpublished decision because the decision appears to support the legal argument or procedure being advanced by that litigant, there would be no rule prohibiting this practice.  Plaintiff in opposition objects to the court considering the unpublished opinion.  

The unpublished, non-citable, opinion will not be considered by the court, and the court will consider setting an OSC re sanctions against defendants and counsel for this blatant violation of the court rule.   

Substantive

Defendants seek that this court issue an order compelling plaintiff to sign authorizations for records from the Social Security Administration and psychotherapist Beverly Lockwood Conlan.  

Defendants indicate that defendants are seeking plaintiff’s Social Security documents because plaintiff has been receiving Social Security Disability Insurance payments since 2003 for her bipolar condition.  Defendants argue that the Social Security Administration requires an executed authorization form to release such records, that defendants propounded a Request for Production that plaintiff provide such an executed authorization, but plaintiff has failed to produce such an executed authorization. 

Defendants also indicate that in October of 2022, they subpoenaed plaintiff’s disability records from the Social Security Administration.  Plaintiff filed a motion to quash that subpoena, arguing that the records would not contain any new medical information of which defendants were not already aware, and that the Social Security benefits were not at issue.  The matter was heard on December 2, 2022, and plaintiff’s motion to quash or limit the subject deposition subpoena was denied.  The file shows that the court’s minute order states, in pertinent part:

“Custodian of Records Of:  Social Security Administration is ordered to respond to the Deposition Subpoena for the Production of Business Records issued on October 4, 2022.”  

[Shimkin Decl., Ex. C, p. 12 of 13]. 

Defendants also indicate that plaintiff has refused to sign an authorization so that defendants can depose plaintiff’s psychotherapist.  Defendants apparently base this argument on an email correspondence from counsel for defendants dated December 21, 2022, requesting that plaintiff “sign and date the attached authorizations and return them to me as soon as possible.”  [Shimkin Decl., para. 5, Ex. D].  As confirmed by plaintiff in the opposition, defendants have never propounded any formal discovery seeking such an authorization or subpoenaing the psychotherapist. 

 The motion does not appear to rely on any statutory authority under which defendants seek orders compelling plaintiff to execute authorizations.   The motion argues that plaintiff has acted “[i]n contravention of the spirit, if not the letter, of this Court’s December 2, 2022 order.”  [Memorandum, 7:3-4].  The motion accordingly appears to be based on the “spirit” of the court’s previous order, in which the court rejected plaintiff’s arguments that the Social Security records which had been subpoenaed were not discoverable in this action.  That order did not in any way involve a deposition or the records of third-party Beverly Lockwood Conlan.  It is not clear why defendants have not pursued enforcing the court’s previous order as directed to the Social Security Administration.  

The notice of motion indicates that the motion is made pursuant to CCP sections 2023.010 and 2031.310.  

CCP § 2031.310 provides that a party demanding a document inspection may move for an order compelling further responses to the demand if the demanding party deems that:

“(1)   A statement of compliance with the demand is incomplete.

  (2)   A representation of inability to comply is inadequate, incomplete, or evasive.

  (3)   An objection in the response is without merit or too general.”  

CCP section 2023.010 defines misuses of the discovery process, and is entitled, “Conduct subject to sanctions.”  As argued in the opposition, since no sanctions are sought here, the section appears to be irrelevant. 

The Request for Production at issue here, Request No. 55, requests:

“An executed authorization form OMB No. 0960-0566 for records from the Social Security Administration.  (See attached form to be executed by plaintiff).” 

Plaintiff’s response is:

“Objection. This request is improper according to California Code of Civil Procedure section 2031.010, et seq., as it does not seek discovery by inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the responding party’s possession, custody, or control. Rather, it requests that Plaintiff create a new document. Subject to and without waiving any objections, Plaintiff responds as follows: A form OMB No. 0960-0566 signed by Plaintiff has never existed.”

The objection appears appropriate, as CCP section 2031.010 permits discovery by demands for production of documents, providing, in pertinent part:

“(a) Any party may obtain discovery within the scope delimited by Chapter 2 (commencing with Section 2017.010), and subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control of any other party to the action.”

An executed copy of an authorization is not a document which is currently in the possession, custody, or control of plaintiff, and is not subject to inspection, copying, testing or sampling.   It is clear that such a document would have to be created to respond to a document demand and is not an existing document which could be produced for inspection or copying. 

In addition, to the extent the response indicates that the document will not be produced because it does not exist, this response also is proper.  

Under CCP section 2031.210, a response to a document demand shall either be a statement of compliance, a representation that the party lacks the ability to comply, or an objection. 

With respect to a statement of inability to comply, CCP section 2031.230 requires:

“A representation of inability to comply with the particular demand for inspection shall affirm that a diligent search and a reasonably inquiry has been made in an effort to comply with that demand.   This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party.   The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.”

The response that the document is not produced because it has never existed is appropriate under the circumstances.  

To the extent the motion seeks a further response to a request for an authorization concerning third party Beverly Lockwood Conlan, made informally in correspondence, rather than through a formal discovery request to which a response has been made, lacks any statutory basis whatsoever.   Under CCP section 2020.010 (b), with certain exceptions not applicable here, “the process by which a nonparty is required to provide discovery is a deposition subpoena.”   No subpoena to Beverly Lockwood Conlan is at issue here.  

As argued in the opposition, there is simply no statutory basis for this court to compel plaintiff to sign an authorization for the release of records from a third party.   

There is legal authority under which it is recognized that a trial court does not have the authority to create additional methods of discovery or conditions to that discovery beyond those statutorily authorized.   See San Diego Unified Port Dist. v. Douglas E. Barnhart, Inc., (2002) 95 Cal.App.4th 1400, 1405. 

It would appear that the appropriate recognized statutory method to obtain the documents sought would be for defendant to take action to enforce the court order of December 2, 2022 directly against the Social Security Administration, and to issue a valid subpoena directed to the third party Beverly Lockwood Conlan.  

Defendants seem to concede that no statutory authority exists permitting the relief requested, but argue that case law has recognized and upheld orders compelling authorization signatures. 

Defendants rely on Miranda v. 21st Century Insurance Co. (2004) 117 Cal.App.4th 913, in which the court of appeal affirmed the trial court’s judgment dismissing an underinsured motorist arbitration proceeding as a discovery sanction after the insured refused to comply with a court order requiring the insured to provide signed authorizations to two medical facilities for the release of medical records. 

In that case, the issues before the court of appeal were whether the trial court lacked jurisdiction to dismiss the arbitration proceeding or make orders against the insured, and whether the trial court had abused its discretion by imposing a terminating sanction without first imposing a lesser sanction.   Miranda, at 917.  The court of appeal did not address the issue of whether the trial court in that matter had authority to order plaintiff to sign authorizations. 

In Miranda, the insurer had learned through discovery that the insured had been treated at two medical facilities, and “followed up with a subpoena directed to those facilities requesting plaintiff’s medical records,” and both facilities “responded, that because of the nature of the records, they would need signed authorizations from plaintiff before they could release the records.”   Miranda, at 918.    The insurer then requested plaintiff to sign the authorizations.  Plaintiff informed defendant’s counsel plaintiff would not be signing the medical releases.  Thereafter, defendant filed an application to commence discovery in an underinsured motorist matter in the superior court, “together with a motion to compel compliance with the subpoenas for medical records.” Miranda, at 918.   The trial court then “granted the motion to compel by ordering plaintiff to sign the authorizations for release of her medical records.”  Miranda, at 919. 

Here, there has been no request by defendants to compel compliance with the subpoena to the Social Security Administration, even given the existence of a clear court order requiring compliance.   As to third party Beverly Lockwood Conlan, there is no outstanding subpoena or court order at all.    

As pointed out in the opposition, most importantly, the court of appeal noted in Miranda, 

The record does not reflect the reason the medical facilities requested plaintiff’s

authorization.  Perhaps defendant did not comply with the procedures to obtain

“personal records” of a “consumer” as required by section 1985.3 of the Code of Civil Procedure, in which case the medical facilities had a sufficient basis to refuse compliance.  (Code Civ. Proc., § 1985.3, subd. (k).)  If section 1985.3 had been complied with, the record does not indicate why defendant did not simply move to compel compliance with the subpoena pursuant to section 1987.1, instead of pursuing an unwilling plaintiff for a signed authorization.  These matters remain mysteries because of the scant record presented to the trial court. 

Miranda, at 918, n. 2, emphasis added.

This language suggests that the pursuit of a signed authorization from an unwilling plaintiff is not a recognized discovery method: the appropriate proceeding is to propound recognized discovery by authorized means and then seek to enforce such discovery.  Here, as in Miranda, it is also a mystery why defendants have not simply moved to compel compliance with this court’s order to the Social Security Administration, or issue and serve a subpoena upon the other third party witness. 

  

Defendants also rely on Coats v. K-Mart Corp. (1989) 215 Cal.App.3d 961, arguing that in that case, the court of appeal recognized the trial court’s order compelling the appellant to sign authorizations for the release of decedent’s medical records from Kaiser.  

As argued in the opposition, the Second District in Coats addressed issues concerning the statute of limitations, and whether plaintiff mother was the proper heir to maintain a wrongful death suit on behalf of her deceased adult child. The opinion mentions authorizations in connection with the history of the case, indicating that decedent’s health care providers had declined to produce decedent’s medical records without proof that the mother had been appointed as adminstratrix of decedent’s estate and that she authorized their release, and that in response to motions by defendant the trial court “ordered appellant to sign authorization forms,” and that in response to one of the motions, counsel agreed to provide such authorizations.  Coats, at 965.  It is not clear from the case under what circumstances the order had been issued, and it appears that there was at some point an agreement to provide authorization.  The case accordingly does not stand for the proposition that a trial court properly can order the involuntary execution by a party of authorizations for release of records.

The other case relied upon, Valentine Capital Retirement Planning Group, Inc. v. Wixon (2005) 2005 WL 3196767, as discussed above, is not a published opinion, is non-citable, and will not be considered by the court.     

The motion is denied in its entirety for the failure of defendants to seek relief which this court is authorized to grant.  

The motion is denied without prejudice to defendants taking appropriate and timely steps to enforce this court’s December 2, 2022 order with respect to the Social Security Administration. 

RULING:

Defendants Guillermo Eduardo Padilla, Jr. and Greenwood Motor Lines, Inc. dba R+L Carriers’ Motion to Compel Responses to Requests for Production of Documents and to Request for Signed Authorization:

Counsel for defendants is cautioned that the California Rules of Court strictly prohibit the citation in papers of unpublished opinions in circumstances such as those here.  See CRC Rule 8.1115 (“an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action.”).  The Court will set an Order to Show Cause re Why Defendants should not be sanctioned for this admittedly knowing violation of the California Rules of Court.  Defendants are also cautioned that further violation of the court rules may result in nonconforming papers not being considered by the Court.  

Motion is DENIED. 

GIVEN THE CORONAVIRUS CRISIS, AND TO ADHERE TO HEALTH GUIDANCE THAT DICTATES SAFETY MEASURES, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

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