Judge: Serena R. Murillo, Case: 19STCV40358, Date: 2023-04-10 Tentative Ruling
Case Number: 19STCV40358 Hearing Date: April 10, 2023 Dept: 29
TENTATIVE
Defendant Denise Hinson’s Motion to Compel St. Charles
Surgical Center to Produce Documents in Deposition Subpoena is GRANTED. St.
Charles Surgical Center’s Custodian of Records is ordered to produce the
documents requested in the deposition subpoena within 30 days of this order.
Defendant’s Motion to Compel
Connie Esparza’s Deposition and Production of Documents is GRANTED. Connie
Esparza is ordered to appear for deposition within 30 days of this order and
produce the documents identified in the deposition subpoena within 30 days of
this order.
Defendant’s Motion to Compel Linda
Yu’s Deposition and Production of Documents is GRANTED. Linda Yu is ordered to
appear for deposition within 30 days of this order and produce the documents
identified in the deposition subpoena within 30 days of this order.
Defendant’s Motions to Compel
Comprehensive Pain Management’s Custodian of Records and Person Most
Knowledgeable to Comply with Deposition Subpoena are GRANTED. Comprehensive
Pain Management’s Custodian of Records and Person Most Knowledgeable are
ordered to appear for deposition within 30 days of this order and produce the
documents identified in the deposition subpoenas within 30 days of this order.
Defendant’s request for
sanctions is DENIED.
Legal Standard
Compel
Non-Party Depo
Generally, proper
service of a deposition subpoena compels a non-party deponent to appear, to testify,
and to produce documents if requested. (CCP § 2020.220(c).) A deposition can be
taken of any entity by examining an officer or agent designated to testify on
its behalf. (CCP § 2025.010.) Such an individual is often referred to as a
Person Most Knowledgeable (“PMK”) or Person Most Qualified (“PMQ”) depositions.
(CCP § 2025.230.)
When
a nonparty is served with a deposition subpoena but fails to attend the
deposition or refuses to be sworn as a witness, the party that served the
subpoena may move for an order directing compliance with the subpoena and
imposing other terms or conditions as the judge considers appropriate.¿(CCP §
1987.1(a).) Unlike the motion against a party deponent, the motion to compel a
nonparty's attendance does not require the deponent to serve objections, does
not require a meet and confer, and monetary sanctions against the losing party
are not mandatory. (Id.) Code of Civil Procedure section 1987.2(a)
provides, in relevant part, that, in making an order on a motion to order compliance
with a deposition subpoena, “the court may in its discretion award the amount
of the reasonable expenses incurred in making or opposing the motion, including
reasonable attorney’s fees, if the court finds the motion was made or opposed
in bad faith or without substantial justification . . . .” (CCP §
1987.2(a).)
Compel
Production of Documents in Deposition Subpoena
If a deponent
fails to produce any document, electronically stored information, or tangible
thing under the deponent's control that is specified in the deposition notice
or deposition subpoena, the deposing party may move for an order compelling
that production. (CCP § 2025.480(a).) However, the subpoenaing party may only
seek a court order compelling the nonparty to comply with the subpoena within
60 days after completion of the deposition record. (Id. § 2025.480(b).)
Next,
a motion to compel production of documents described in a deposition notice or
deposition subpoena must be accompanied by a showing of “good cause”—i.e.,
declarations containing specific facts justifying inspection of the documents
described in the notice. (CCP §§ 2025.450(b)(1), 2025.480(b).)
A
motion to compel answers to deposition questions must be accompanied by
evidence of a reasonable and good faith attempt at informal resolution.
(Cal. Code Civ. Proc., § 2025.480, subd. (b).)
Code
of Civil Procedure “Section 2025.410, subdivision (a) states in relevant part:
‘Any party served with a deposition notice that does not comply with Article 2
… 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 . . . .’” (Parker
v. Wolters Kluwer U.S., Inc. (2007) 149 Cal.App.4th 285, 295 n. 22.)
Discussion
I.
Motion to Compel St. Charles Surgical
Center to Produce Documents in Deposition Subpoena
On July 26, 2022, Defendant served a notice of taking the
deposition of Custodian of Records for St. Charles Surgical Center, to take
place on August 8, 2022. (Young Decl., Exh. A.) The subpoena also
required the Custodian to produce documents in 19 categories. (Id.) No
objection was raised to the subject subpoena. The deposition took place on
August 8, 2022, and the Custodian appeared, but failed to produce the
documents. (Id ¶ 3.)
Defendant argues there is good
cause to compel the production of documents because Plaintiff revealed that she
received an occipital nerve injection at St. Charles Surgical Center which
charged $25,000 for the use of the facility excluding charges for the operating
surgeon, anesthesiologist, and attending medical personnel. Defendant contends
that surgical facilities will not require plaintiffs to pay the entire billed
amount and instead, adjustments are routinely provided to lien patients such as
the subject Plaintiff. The amount that a facility would accept is the actual
amount of the services provided and it is this amount that should be used when
computing Plaintiff’s damages. The subject discovery is further designed to
determine if St. Charles had any other sources of financial benefit as it
relates to the treatment of Plaintiff.
Plaintiff has not filed an
opposition and no party has disputed that there were no objections to the
subpoena or that the documents were not produced. Further, Defendant has
established good cause for the production of the documents in question. Lastly,
Defendant has made reasonable attempts at meeting and conferring. Accordingly,
the motion to compel St. Charles’ responses to the request for production in Defendant’s
deposition notice is granted.
As to sanctions, CCP section 2025.480(j)
states: “The court shall impose a monetary sanction against any party, person,
or attorney who unsuccessfully makes or opposes a motion to compel an answer or
production, unless it finds that the one subject to the sanction acted with
substantial justification or that other circumstances make the imposition of
the sanction unjust.” Defendant’s request for sanctions is denied as no party
has opposed this motion.
II.
Motion to Compel Connie Esparza’s Deposition
and Production of Documents
On
October 4, 2022, Defendant served Connie Esparza with a notice of deposition
and production of documents set to take place on October 31, 2022. (Auchard
Decl., Exh. B.) The subject subpoena required Esparza to produce documents in 7
categories. (Id., Exh. C.) On October 25, 2022, nearly one week before the
scheduled deposition, defendant’s counsel attempted to confirm and secure
Esparza’s appearance at her deposition, but all attempts were unsuccessful.
Esparza failed to appear at her deposition and failed to produce the documents.
(Id., ¶ 6.) On December 6, 2022, Defendant’s counsel sent a letter
to Esparza regarding her non-appearance at the deposition, requesting Esparza
respond with available dates on or before December 30, 2022. (Id., Exh. D.)
Dr. Lin, treating provider at
St. Charles, identified litigation funding company High Rise which sets billing
rates for procedures such as the ones at issue in this case, epidural steroid
injections and occipital nerve injections. Dr. Lin further testified that
Connie Esparza has knowledge of this funding company and their set rates for
these procedures. Therefore, Defendant argues that Connie Esparza’s testimony
and document production is essential to the defense’s case and their ability to
adequately assess Plaintiff’s true damages.
The Court finds that Esparza
was properly served with the notice of deposition, and failed to appear.
Further, it remains undisputed that there were no objections to the request for
documents in the deposition subpoena and that the documents were not produced.
Moreover, Defendant has established good cause for the production of the documents
in question. Lastly, Defendant has made reasonable attempts at meeting and
conferring. Accordingly, the motion to compel Esparza’s personal attendance and
production of documents in Defendant’s deposition notice is granted.
Defendant requests
sanctions pursuant to CCP section 2023.030 for
the misuse of discovery. The request under CCP
section 2023.030 is denied. In a recent case, City of Los Angeles v.
PricewaterhouseCoopers, LLC (2022) 84 Cal.App.5th 466, 504, the
Court of appeal concluded that: "sections 2023.010 and 2023.030 do not independently authorize the
trial court to impose monetary sanctions for misuse of discovery.”
(Id.)
Defendant
also requests sanctions in the amount of $500 against Connie Esparza and St.
Charles under CCP section 1992. Under CCP section 1992, “[a] person failing to appear
pursuant to subpoena or a court order also forfeits to the party aggrieved the
sum of five hundred dollars ($500), and all damages that he or she may sustain
by the failure of the person to appear pursuant to the subpoena or court order,
which forfeiture and damages may be recovered in a civil action.”
Defendant is not
entitled to a forfeiture fee, which is only recoverable in a separate civil
action. “The subpoenaing party can also file a civil action against the
witness who disobeys the subpoena to recover a forfeiture of $500, plus all
damages sustained as a result of the witness’ failure to attend.” Weil
& Brown, Civ. Proc. Before Trial, 8:618 (citing CCP §§2020.240,
1992). “However, as noted by the Supreme Court, this is an
impractical remedy: ‘The simple economics of modern litigation
essentially preclude such an action.’ [New York Times v. Superior
Court (1990) 51 Cal. 3d 453, 464].” Id. at 8:619. As
stated in the New York Times case “’contempt is generally the only
effective remedy against a nonparty witness.’ The monetary sanctions
under section 1992 are not effective as a practical matter. The maximum
sanction is a $500 forfeiture plus actual damages, and the party aggrieved by
the failure to make discovery can recover the sanctions only by bringing
an independent civil action. It would likely be a rare case in which a
civil litigant would impose on himself the additional burden of a separate suit
to recover a mere $500.”
Further,
Defendant’s request for sanctions under CCP section 2025.480(j) is denied for
the same reason discussed above.
III.
Motion to Compel Linda Yu at St. Charles
Surgical Center’s Deposition and Production of Documents
On
October 4, 2022, Defendant served Linda Yu with a notice of deposition and
production of documents set to take place on October 31, 2022. (Auchard Decl.,
Exh. B.) The subject subpoena required Yu to produce documents in 7 categories.
(Id., Exh. C.) On October 25, 2022, nearly one week before the scheduled
deposition, defendant’s counsel attempted to confirm and secure Yu’s appearance
at her deposition, but all attempts were unsuccessful. Yu failed to appear at
her deposition and failed to produce the documents. (Id., ¶ 6.) On December
6, 2022, Defendant’s counsel sent a letter to Yu regarding her non-appearance
at the deposition, requesting Yu respond with available dates on or before
December 30, 2022. (Id., Exh. D.)
Dr. Lin, treating provider at
St. Charles, identified litigation funding company High Rise which sets billing
rates for procedures such as the ones at issue in this case, epidural steroid
injections and occipital nerve injections. Dr. Lin testified that Linda Yu has
knowledge of this funding company and their set rates for these procedures.
Therefore, Defendant argues that Yu’s testimony and document production is
essential to the defense’s case and their ability to adequately assess
Plaintiff’s true damages.
The Court finds that Yu was
properly served with the notice of deposition, and failed to appear. Further, it
remains undisputed that there were no objections to the request for documents
in the deposition subpoena and that the documents were not produced. Moreover,
Defendant has established good cause for the production of the documents in
question. Lastly, Defendant has made reasonable attempts at meeting and
conferring. Accordingly, the motion to compel Linda Yu’s personal attendance
and production of documents in Defendant’s deposition notice is granted.
Defendant’s request for
sanctions under CCP sections 2023.030, 1992, and 2025.480(j) is denied for the reasons
discussed above.
IV.
Motion to Compel Comprehensive Pain
Management’s Custodian of Records and Person Most Knowledgeable to Comply with
Deposition Subpoena
Defendant served Comprehensive Pain
Management’s Custodian of Records and Person Most Knowledgeable (PMK) with
Deposition Subpoena for Personal Appearance and Production of Documents on
October 12, 2022, set to take place on November 7, 2022. (Auchard Decl. ¶ 4,
Exh. B.) The subject subpoena also required the Custodian of Records and PMK to
produce documents in 7 categories. (Id., Exh. C.). Comprehensive Pain
Management Center’s Custodian of Records and PMK failed to appear at their
deposition on November 7, 2022, and failed to produce the document requests.
(Id., Exh. B-E.) At no time was a written objection raised to the subject
subpoena. Despite meet and confer efforts, these documents have not been
produced to date. (Id., ¶5, Exh. D.)
During the
course of her medical treatment, Plaintiff presented to Comprehensive Pain
Management Center for consultations on April 23, 2019, May 15, 2019, June 3,
2019, and June 24, 2019, which charged $3,550.00 for services. (Id., ¶2).
Again, Defendant contends that the facility will not require plaintiffs to pay
the full billed amount, and instead adjustments are routinely provided to lien
patients such as the subject Plaintiff. The adjusted amount is the actual value
of the services provided and it is this adjusted amount that should be used
when computing Plaintiff’s damages. It is likely that Comprehensive Pain
Management Center, as a treating facility involved in this matter, is in
possession of such documents evidencing litigation financing.
The Court
finds that the Custodian of Records and the PMK at Comprehensive Pain
Management Center were properly served with the notice of deposition, and
failed to appear. Further, it remains undisputed that there were no objections
to the request for documents in the deposition subpoena and that the documents
were not produced. Moreover, Defendant has established good cause for the
production of the documents in question
as the custodian of records and PMK would have knowledge of Plaintiff’s billing
rates for procedures and services at issue in this case, which Defendant
contends are being overcharged. Lastly, Defendant has made reasonable
attempts at meeting and conferring. Accordingly, the motion to compel Comprehensive Pain Management’s
Custodian of Records’ and PMK’s personal attendance and production of
documents in Defendant’s deposition notice is granted.
Defendant’s request for
sanctions under CCP sections 2023.030, 1992, and 2025.480(j) is denied for the reasons
discussed above.
Conclusion
Accordingly, Defendant’s Motion to Compel St.
Charles Surgical Center to Produce Documents in Deposition Subpoena is GRANTED.
St. Charles Surgical Center’s Custodian of Records is ordered to produce the
documents requested in the deposition subpoena within 30 days of this order.
Defendant’s Motion to Compel
Connie Esparza’s Deposition and Production of Documents is GRANTED. Connie
Esparza is ordered to appear for deposition within 30 days of this order and
produce the documents identified in the deposition subpoena within 30 days of
this order.
Defendant’s Motion to Compel Linda
Yu’s Deposition and Production of Documents is GRANTED. Linda Yu is ordered to
appear for deposition within 30 days of this order and produce the documents
identified in the deposition subpoena within 30 days of this order.
Defendant’s Motions to Compel
Comprehensive Pain Management’s Custodian of Records and Person Most
Knowledgeable to Comply with Deposition Subpoena are GRANTED. Comprehensive
Pain Management’s Custodian of Records and Person Most Knowledgeable are
ordered to appear for deposition within 30 days of this order and produce the
documents identified in the deposition subpoenas within 30 days of this order.
Defendant’s request for
sanctions is DENIED.
Moving party is ordered to give notice.