Judge: Stephen P. Pfahler, Case: 19STCV40434, Date: 2023-09-11 Tentative Ruling

Case Number: 19STCV40434    Hearing Date: October 23, 2023    Dept: F49

Dept. F-49

Date: 10-23-23

Case #19STCV40434

Trial Date: 11-15-23 c/f 10-2-23 c/f 7-17-23 c/f 2-14-23 c/f 6-6-22

COMPEL APPEARANCE

MOVING PARTY: Plaintiff, John Doe

RESPONDING PARTY: Defendant, Facey Medical Group

RELIEF REQUESTED

Motion to Compel Compliance with a Subpoena for Appearance at Trial

SUMMARY OF ACTION

On May 28, 2019, Plaintiff John Doe attended a yearly physical examination with Defendant Gregory Castillo. Plaintiff alleges that Dr. Castillo first began “repeatedly and inappropriately rubbing” plaintiff’s arms and legs, next proceeded to grab Plaintiff’s penis and testicles without “medical justification.” Dr. Castillo then began to digitally penetrate Plaintiff’s anus. During the course of this conduct, Dr. Castillo allegedly rubbed his own genitals on Plaintiff’s body for purposes of sexual gratification.

Notwithstanding the end of the conduct in the examination room, Dr. Castillo then removed a wart from the finger of Plaintiff in another room, and again rubbed his genitals on Plaintiff and again inappropriately touched him on the arms and legs. Dr. Castillo later told Plaintiff that the penal examination was required, due to an alleged lesion, which was not documented in any medical notes.

On November 7, 2019, Plaintiff filed his complaint for Sexual Battery, Sexual Orientation Related Violence, Sexual Harassment, Constructive Fraud, Unfair Business Practices, Intentional Infliction of Emotional Distress, and Negligent Hiring Retention Supervision and Training.

The action was transferred to Department 49 on January 28, 2020.

On May 4, 2020, Plaintiff dismissed Providence Health & Services, David Mast, Jim Corwin and Teresa David. On June 19, 2020, the parties submitted a stipulated protective order for the exchange of discovery. On August 4, 2020, Plaintiff filed a first amended complaint for Sexual Battery, Sexual Orientation Related Violence, Sexual Harassment, Constructive Fraud, Unfair Business Practices, Intentional Infliction of Emotional Distress, and Negligent Hiring Retention Supervision and Training. On August 5, 2020, Plaintiff filed a second dismissal of defendants Providence Health & Services, David Mast, Jim Corwin and Teresa David.

On November 3, 2020, the court sustained the demurrer Facey Medical Group, Roscoe Marter, M.D., and Erik Davydov, M.D. to the first amended complaint, and denied the motion to strike the use of pseudonyms. On December 3, 2020, Plaintiff filed the second amended complaint for Sexual Battery, Sexual Orientation Related Violence, Sexual Harassment, Constructive Fraud, Unfair Business Practices, Intentional Infliction of Emotional Distress, and Negligent Hiring Retention Supervision and Training, and Negligence.

On March 9, 2021, the court sustained the demurrer of Gregory Castillo, M.D. without leave to amend as to the fourth cause of action for constructive fraud, and fifth cause of action for unfair business practices. The court overruled the remainder of the demurrer. The court also granted the motion to strike the claim for punitive damages without prejudice, and granted the motion to strike the claim for treble damages with prejudice. On March 10, 2021, the court denied the motion for leave to add a claim for punitive damages against the medical defendants. On March 15, 2021, Castillo answered the second amended complaint.

On June 25, 2021, the court overruled the demurrer of Facey Medical Group, Roscoe Marter, M.D., and Erik Davydov, M.D. to the second amended complaint, and granted the motion to strike the claim for punitive damages. Defendants answered the second amended complaint on June 30, 2021.

On December 28, 2021, the court adopted the report and recommendations of discovery referee Honorable Richard Rico in regards to a motion to compel further response to Special Interrogatories (set two) from defendant Castillo. On January 11, 2022, the court granted the ex parte motion to stay enforcement of the report and recommendations of the referee report, and stayed the entire action.

On March 1, 2022, the court denied the motion to sever. On April 19, 2022, the court declined to deem the 22STCV04812, John Doe, et al. v. Facey Medical Group, et al. related, and denied the motion to consolidate the cases.

On July 11, 2022, the court vacated the December 28, 2021, adopted recommendations and findings of the referee regarding special interrogatories, numbers 26 and 34. On August 9, 2022, the court denied the motion for summary judgment of Facey Medical Group, Roscoe Marter, M.D., and Erik Davydov, M.D., but granted summary adjudication as to the first, second, third, fourth, fifth, sixth and eighth causes of action for sexual battery, sexual orientation related violence, sexual harassment, constructive fraud, unfair business practices, intentional infliction of emotional distress, and negligence. Doctors  Marter and Davydov are now dismissed with the remaining claim for Negligent Hiring, Retention, Supervision and Training remaining against Facey Medical Group.

RULING: Denied, without prejudice.

Plaintiff John Doe moves to compel the attendance of defendant Gregory Castillo at trial, as well as production of documents. Plaintiff contends the notice to appear/subpoena was served, and no objections to appearing were provided, thereby compelling an appearance. Castillo in opposition admits to late service of objections, but denies any prejudice given the potential setting of the trial in a long cause courtroom. Castillo also notes the notice was served well before the statutory deadlines, and improperly seeks to “circumvent the motion in limine process,” in that certain categories of documents are the subject matter of an impending motion in limine. Castillo denies any waiver of rights, collateral estoppel, or admissibility of certain evidence. Plaintiff in reply emphasizes the admittedly untimely objections and maintains material prejudice if the documents are not produced. Plaintiff challenges the objections and maintains the documents are admissible.

For a party appearance at trial and for document appearance, the court cites to Code of Civil Procedure section 1987, which provides in relevant part:

(b) In the case of the production of a party to the record of any civil action or proceeding or of a person for whose immediate benefit an action or proceeding is prosecuted or defended or of anyone who is an officer, director, or managing agent of any such party or person, the service of a subpoena upon any such witness is not required if written notice requesting the witness to attend before a court, or at a trial of an issue therein, with the time and place thereof, is served upon the attorney of that party or person. The notice shall be served at least 10 days before the time required for attendance unless the court prescribes a shorter time. ... The giving of the notice shall have the same effect as service of a subpoena on the witness, and the parties shall have those rights and the court may make those orders, including the imposition of sanctions, as in the case of a subpoena for attendance before the court.

(c) If the notice specified in subdivision (b) is served at least 20 days before the time required for attendance, or within any shorter period of time as the court may order, it may include a request that the party or person bring with him or her books, documents, electronically stored information, or other things. The notice shall state the exact materials or things desired and that the party or person has them in his or her possession or under his or her control. Within five days thereafter, or any other time period as the court may allow, the party or person of whom the request is made may serve written objections to the request or any part thereof, with a statement of grounds. Thereafter, upon noticed motion of the requesting party, accompanied by a showing of good cause and of materiality of the items to the issues, the court may order production of items to which objection was made, unless the objecting party or person establishes good cause for nonproduction or production under limitations or conditions. The procedure of this subdivision is alternative to the procedure provided by Sections 1985 and 1987.5 in the cases herein provided for, and no subpoena duces tecum shall be required.

(Code Civ. Proc., § 1987, subd. (b-c).)

The motion apparently seeks to guarantee Castillo’s appearance at trial, production of documents, preclusion of any objections to certain documentary and testimonial objections including Fifth Amendment privilege, scope of medical practice versus personal prurient interest, hearsay, etc. The argument relies on both an untimely objection and substantive argument challenging the objections. The court appreciates the arguments but finds the motion premature in that while Casillo admittedly submitted a late objection, the court declines to find any violation on a subpoena/notice to appear potion of the motion given the trial remains currently set for November 15, 2023, with potential referral to a long cause courtroom. The court therefore finds no basis of authority to preemptively order an appearance and testimony well before the any deadlines.

As for documents, the court, in its discretion, declines to find a waiver of any all privileges based on service of minimally untimely objections. (Code Civ. Proc., § 1987.1, subd. (a); see Monarch Healthcare v. Superior Court (2000) 78 Cal.App.4th 1282, 1288-1289.)

 The court finds no material prejudice, especially given the valid objections, timing well before the first trial date, and potential for a new trial date. Preemptively compelling production based on an objection served more than two months before the first set potential trial date constitutes an overly harsh result. More importantly, potential consideration of certain document production via the motion improperly preempts potential motions in limine, which remains at the discretion of the trial court. The court declines to determine admissibility without specific briefing on the topic(s) at the time of trial, and potentially on behalf of another judicial officer, should the action become assigned to a long cause courtroom.

In conclusion, any failure to appear for trial may be addressed at the time of trial. The court otherwise defers any sought after compelled testimony and/or document production to the time of any potential motions in limine and objections made during trial.

The motion is denied without prejudice.

Plaintiff to give notice to all parties.