Judge Stephen Morgan, Case Number: 21AVCV00838, Date: 2023-11-28 Tentative Ruling

Case Number: 21AVCV00838-3 Hearing Date: November 28, 2023 Dept: A14

This is a wrongful death lawsuit. The allegations concern the death of David Hernandez (“Decedent”) while he was a patient at Defendant Antelope Valley Healthcare District (the “District”)’s healthcare facility, Antelope Valley Medical Center. Plaintiff Bartola Ledezma de Hernandez is Decedent’s surviving spouse, and the remaining plaintiffs – Enrique Hernandez, Martina Ortiz, Epifano Hernandez, George Hernandez, Zenaida Hernandez, Alejandra Rodriguez, and Guadalupe Hernandez – (collectively “Plaintiffs”) are Decedent’s surviving adult children.

On October 20, 2021, Plaintiffs initiated this lawsuit against the District. They also sued two nurses (Samantha Davis and Veronica Silva) and a doctor (Taher Katouzian), whom they eventually dismissed from the action.

After the District’s partially successful demurrer, the remaining causes of action are for (1) elder abuse, (2) negligence, (3) wrongful death, (4) violation of substantive due process under 42 U.S.C. § 1983, (5) deprivation of familial association under 42 U.S.C. § 1983, and (6) a Monell violation under 42 U.S.C. § 1983.

The Court notes that there are six additional defendants to this action: Jacob Holz, Patrice Herron-Martin, Kimberlee Mims, Penny Hammer, Candy Maxwell, and Stephanie Herider. The Court notes that (1) Penny Hammer and Stephanie Herider have been served, but have not answered; and (2) Kimberlee Mims and Candy Maxwell have not been served.

On October 05, 2023, Plaintiffs filed a Motion to Compel Production of Oxygen Tank.

Standard for Discovery from Non-Party – A party seeking discovery from a person who is not a party to the action may obtain discovery by oral deposition, written deposition, or deposition for production of business records. (Cal. Code Civ. Proc. § 2020.010.) A deposition subpoena may command: (1) only the attendance and testimony of the deponent, (2) only the production of business records for copying, or (3) the attendance and testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things. (Cal. Code Civ. Proc. § 2020.020.) Personal service of any deposition subpoena is effective to require a deponent who is a resident of California to: personally appear and testify, if the subpoena so specifies; to produce any specified documents; and to appear at a court session if the subpoena so specifies. (Cal. Code Civ. Proc. § 2020.220, subd. (c).) A deponent who disobeys a deposition subpoena may be punished for contempt without the necessity of a prior order of the court directing compliance by the witness. (Cal. Code Civ. Proc. § 2020.240.)

Application – As an initial matter, “[a] written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.” (Cal. Rules of Court, Rule 3.1346; see also Cal. Code Civ. Proc. § 1010.6.)

The Court notes that the Proof of Service attached to Plaintiffs’ motion to compel does not indicate that nonparty Los Angeles County Sheriff’s Department was properly served with notice of this motion. Rather, the Proof of Service states that only electronic service occurred. (See Proof of Service.) Further, there is no indication of an agreement by the nonparty deponent to accept service by mail or e-mail.

For clarity, the Court also emphasizes that Plaintiffs do not dispute that there is an ongoing criminal investigation, but state that the oxygen tank is needed to assess the damages to Decedent, including pre-death pain and suffering. “Evidence gathered by police as part of an ongoing criminal investigation is by its nature confidential” and “the contents of such files sought in civil discovery must remain confidential so long as the need for confidentiality outweighs the benefits of disclosure.” (County of Orange v. Superior Court (2000) 79 Cal.App.4th 759, 764-65 (“County of Orange”) [stating that the notion is found in both case and statutory law and citing Cal. Evid. Code § 1040(b)(2)].). As to the test, County of Orange provides:

In Shepherd v. Superior Court, supra, 17 Cal. 3d 107, the court advised that the “weighing procedure will entail a separate assessment of the ‘necessity for disclosure in the interest of justice’ and the ‘necessity for preserving the confidentiality [of the subject information.]’ [P] Implicit in each assessment is a consideration of consequences--i.e., the consequences to the litigant of nondisclosure, and the consequences to the public of disclosure. The consideration of consequences to the litigant will involve matters similar to those in issue in the determination of materiality and good cause in the context of Code of Civil Procedure section 1985, including the importance of the material sought to the fair presentation of the litigant's case, the availability of the material to the litigant by other means, and the effectiveness and relative difficulty of such other means. The consideration of the consequences of disclosure to the public will involve matters relative to the effect of disclosure upon the integrity of public processes and procedures . . . .” ( Id. at p. 126, fn. omitted.)

Here, it is patent that the public interest in solving Decedent’s homicide and bringing the perpetrator to justice outweighs Plaintiff’s civil claims. The Court notes that this criminal investigation also impacts Plaintiffs’ ability to bring the individual that harmed Decedent to justice, thus public interest and Plaintiffs’ interests are entwined. Further, there are other methods to determine Decedent’s assess the damages to Decedent, including pre-death pain and suffering that would not impact the criminal investigation such as procuring a similar oxygen tank or even requesting to see the oxygen tank at issue at Los Angeles County Sheriff’s Department.[1] In sum, there are many alternatives that would not compromise the ongoing criminal investigation.

[1] The subpoena seeks the Los Angeles County Sheriff’s Department deliver the oxygen tank, used against Decedent, to Plaintiffs’ counsel’s firm. (See Exh. 1.)