Judge: Steven A. Ellis, Case: 22STCV15516, Date: 2023-08-31 Tentative Ruling
Case Number: 22STCV15516 Hearing Date: August 31, 2023 Dept: 29
TENTATIVE
Defendants Rebecca Rose Hess and
Richard Hess’s Motion for Order Compelling the Custodian of Records for Eduard
Gulgarts D.D.S. to Comply with Deposition Subpoena is GRANTED.
Legal
Standard
“Unless otherwise
limited by order of the court …, any party may obtain discovery regarding any
matter, not privileged, that is relevant to the subject matter involved in the
pending action or to the determination of any motion made in that action, if
the matter either is itself admissible in evidence or appears reasonably
calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc.,
§ 2017.010.)
Discovery from a
nonparty may be obtained by a deposition subpoena. Code of Civil Procedure section 1987.1,
subdivision (a), provides that if a subpoena requires the production of
documents, the Court may, upon motion reasonably made by a party, make an order
“directing compliance with it upon those terms or conditions as the court shall
declare.” (See also Civ. Code Proc., § 2025.480, subd. (a) [providing that if a
deponent fails to produce any document “that is specified in the deposition
notice or a deposition subpoena, the party seeking discovery may move the court
for an order compelling that… production”].)
“A deposition
subpoena that commands only the production of business records for copying
shall designate the business records to be produced either by specifically describing
each individual item or by reasonably particularizing each category of item,
and shall specify the form in which any electronically stored information is to
be produced, if a particular form is desired.” (Code Civ. Proc., § 2020.410,
subd. (a).)
Discussion
Defendants Rebecca Rose Hess
and Richard Hess (collectively, “Defendants”) move the Court for an
order compelling the Custodian of Records of nonparty Eduard Gulgarts D.D.S. to
comply with the Defendants’ deposition subpoena for the production of business
records.
Defense counsel testifies to
the following facts in support of the motion. On May 10, 2022, Plaintiff Miguel
Garcia (“Plaintiff”) “filed a complaint alleging that she was injured in a
December 3, 2021, automobile versus scooter accident.” (Motion, declaration of
Angela Boiadjian (“Boiadjian Decl.”), ¶ 2.) Plaintiff
subsequently responded to Defendants’ form interrogatories, stating that he
sustained injuries to his head, chin, mouth, teeth, jaw, bilateral knees,
bilateral ankles, and lower back, all to unknown extents. (Boiadjian Decl., ¶ 3.) Plaintiff also identified Eduard Gulgarts
D.D.S., as someone who treated Plaintiff for dental injuries sustained as a
result of the accident. (Boiadjian Decl., ¶ 3;
Exhibit A - a copy of the Plaintiff’s
responses to Defendants’ form interrogatories.) To investigate Plaintiff’s
injuries, counsel served the Custodian of Records of Eduard Gulgarts
D.D.S. with a deposition subpoena on November 14, 2022, seeking the production
of Plaintiff’s dental records for production on December 14, 2022. (Boiadjian
Decl., ¶ 4.) The deposition subpoena and notice to
consumer were also served on the Plaintiff. (Boiadjian Decl., ¶ 4.) Counsel never received an objection from Plaintiff to
the subpoena issued to the Custodian of Records for Eduard Gulgarts D.D.S. (Boiadjian
Decl., ¶ 5.) Counsel was advised that the nonparty
refused to comply with the subpoena. (Boiadjian Decl., ¶ 6.) To resolve the matter, counsel sent a letter to the
nonparty on June 15, 2023, seeking production of the documents, but as of the
signing of counsel’s declaration on July 21, 2023, counsel had yet to receive
production of the documents. (Boiadjian Decl., ¶¶ 7, 8.)
Under California Rules of Court, rule 3.1346: “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.”
Here,
the Court finds that Defendants have satisfied the above requirement by
attaching a proof of service to their motion, indicating that they personally
served the moving papers on nonparty Eduard Gulgarts D.D.S.
No party has filed any
opposition. Defendant has shown good cause
for an order compelling the production of the subpoenaed records. Accordingly, the motion is granted.
Conclusion
Accordingly, Defendants
Rebecca Rose Hess and Richard Hess’s Motion for Order Compelling the Custodian
of Records for Eduard Gulgarts D.D.S. to Comply with Deposition Subpoena is
GRANTED.
The Court ORDERS the
Custodian of Records for Eduard Gulgarts D.D.S. to produce records pursuant to
the Deposition Subpoena within 30 days of notice of this order.
Moving parties are ordered to give notice,
including to the Custodian of Records for Eduard
Gulgarts D.D.S.