Judge: Serena R. Murillo, Case: 20STCV49195, Date: 2023-05-01 Tentative Ruling

Case Number: 20STCV49195    Hearing Date: May 1, 2023    Dept: 29

TENTATIVE

Defendant Uber Technologies, Inc.’s motion to compel compliance with subpoena for business records is MOOT. Defendant’s request for sanctions is DENIED.

Legal Standard

A copy of a subpoena¿for business records¿must be served on all other parties who have appeared in the action.¿(Code Civ. Proc. § 2025.240(a).)¿ 

When a subpoena has been issued requiring the attendance of a witness or the production of documents, electronically stored information, or other things before a court or at the taking of a deposition, the court, upon motion “reasonably made” by the party, the witness, or any consumer whose personal records are sought, or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms and conditions as the court may specify.  (See Code Civ. Proc. § 1987.1; Southern Pac. Co. v. Superior Court (1940) 15 Cal.2d 206.) 

The court can compel a witness’ compliance with a subpoena on such terms and conditions as appropriate to protect parties or witnesses from “unreasonable or oppressive demands” including unreasonable violations of the right of privacy of the person.  (Code Civ. Proc., § 1987.1, subd. (a).)

For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement.  (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.)  Generally, all unprivileged information that is relevant to the subject matter of the action is discoverable if it would itself be admissible evidence at trial or if it appears reasonably calculated to lead to the discovery of admissible evidence.  (Code Civ. Proc. § 2017.010; Schnabel v. Superior Court (1993) 5 Cal.4th 704, 711.)   

Discussion

Defendant moves to compel compliance with its subpoena for Plaintiff’s treatment records relevant to her mental, cognitive, emotional, and behavioral claims, as Plaintiff is claiming a traumatic brain injury due to the collision underlying this matter.

On September 8, 2022, Defendants served a subpoena to Bernard Bierman, M.D., to obtain Dr. Bierman’s records in order to evaluate Plaintiff’s cognitive, behavioral, and emotional claims. (Zimmerman Decl. ¶ 4; Exh. A.) On September 22, 2022, one day 14 before the date of production, Plaintiff served an untimely, meritless, and procedurally defective 15 objection to Defendant’s Business Records Subpoena. (Id., ¶ 5; Exh. B.) On October 12, 2022, Dr. Bierman informed ABI Document Support Services via telephone that he would not be responding to the Business Records Subpoena due to Plaintiff’s objection. (Id., ¶ 7.)

Plaintiff’s counsel argues in opposition that he emailed Defendant Uber a signed medical release authorizing its subpoena service to obtain the records in question. The authorization/release could not be provided earlier because the parties were negotiating the terms of a confidentiality protective order. In the last two weeks, the parties signed a protective order. Subject to that protective order, Plaintiff has authorized the release of the subject documents. Thus, Plaintiff asks that the Court not impose sanctions as Plaintiff’s counsel produced the release without a court order as soon as an agreement was reached on the protective order.

Here, first, California Rules of Court, rule 3.1346 requires a motion to compel compliance with a deposition subpoena to be personally served on the non-party whose compliance is sought. There is no proof of service showing that Dr. Bierman has been served with the motion. Second, the Court notes that the deposition subpoena attached to defense counsel’s motion does not have a proof of service showing Dr. Bierman was served with the subpoena. Thus, the Court cannot grant the motion to compel compliance with the deposition subpoena issued to Dr. Bierman. Nevertheless, it appears the matter has been resolved as Plaintiff has authorized Dr. Bierman to produce the records, and Defendant has not filed a reply contending otherwise. As such, the motion is MOOT.

Sanctions

Defendant requests sanctions pursuant to CCP section 2023.030 for the misuse of discovery. The request is denied. In a recent case, City of Los Angeles v. PricewaterhouseCoopers, LLC (2022) 84 Cal.App.5^th 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.)

Conclusion

Accordingly, Defendant’s motion to compel compliance with subpoena for business records is MOOT. Defendant’s request for sanctions is DENIED.

Moving party is ordered to give notice.