Judge: Serena R. Murillo, Case: 21STCV07998, Date: 2023-04-18 Tentative Ruling

Case Number: 21STCV07998    Hearing Date: April 18, 2023    Dept: 29

TENTATIVE

Defendants Ann Myers and Rachel Myers’ motion to compel compliance with subpoena for business records is GRANTED. Universal Imaging Center is ordered to produce the requested documents within thirty (30) days of this Order. Defendants’ 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

Defendants move to compel Universal Imaging Centers’ compliance with their subpoena for Plaintiff’s medical records. As a result of the accident underlying this matter, Plaintiff sought medical care and treatment with the Universal Imaging Centers. (Victor Decl., ¶ 3.)  Defendants served a Deposition Subpoena for the Production of Business Records on Universal’s Custodian of Records on June 28, 2022 for the medical records of Plaintiff with a production date of July 19, 2022. (Victor Decl., Exh. A.) No records were produced.

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. On November 22, 2022, Defendants filed proof of service indicating that personal service of the motion has been made upon the Custodian.  (Code Civ. Proc., § 1011 subd. (b); California Rule of Court, rule 3.1346.)  The Court notes that the deposition subpoena was issued to Universal Imaging Centers and a Notice to Consumer was served on Plaintiff.  Plaintiff has not filed an opposition, objecting to the deposition.  Thus, the Court grants the motion to compel compliance with the deposition subpoena issued to Universal Imaging Center.   

              Sanctions

Defendants request sanctions pursuant to CCP sections 2023.010 and 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.)

Defendants also request sanctions in the amount of $500 against Universal Imaging Centers 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.” 

Defendants are 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.”

Conclusion

Accordingly, Defendants’ motion to compel compliance with subpoena for business records is GRANTED. Universal Imaging Centers is ordered to produce the requested documents within thirty (30) days of this Order. Defendants’ request for sanctions is DENIED.

Moving party is ordered to give notice.