Judge Yolanda Orozco, Case 19PSCP00106 2022-10-27 Tentative Ruling

Judge: Yolanda Orozco, Case: 19PSCP00106, Date: 2022-10-27 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

In deciding whether to submit on the tentative ruling or attend the hearing and present oral argument, please keep the following in mind:

The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

Oral argument is not an opportunity to simply regurgitate that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated.

If you submit on the tentative, you must immediately notify all other parties email that you will not appear at the hearing. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. If all parties to the motion submit, this tentative ruling will become the final ruling after the hearing date and it will be memorialized in a minute order. This tentative ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such document will be considered by the Court.

**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

Case Number: 19PSCP00106 Hearing Date: October 27, 2022 Dept: 31

DEFENDANT’S MOTION TO COMPEL DEPOSITION IS GRANTED

Background

On July 31, 2019, Plaintiff Ann Clark, as Guardian ad Litem for Elijah Van Clark, a minor filed a Complaint against Rowland Unified School District (“RUSD”), Susan Blanchard, and Does 1 to 50. The Complaint alleges (1) Negligence, (2) Sexual Battery (against Blanchard), and (3) Negligence, (4) Negligent Hiring, Training, Supervision, and Retention.

On August 05, 2022 Defendant RUSD filed a Motion to Compel the Deposition of Sara Sherman, Psy.D.

No opposition or reply had been filed.

Legal Standard

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. (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. (Code Civ. Proc., § 2020.020.)

A service of a deposition subpoena shall be made with sufficient time in advance of the deposition to provide the deponent a reasonable opportunity to locate and produce any designated documents and, where personal attendance is commanded, a reasonable time to travel to the place of deposition. (Code Civ. Proc., § 2020.220(a).) 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. (Code Civ. Proc., § 2020.220(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. (Code Civ. Proc., § 2020.240.)

“[A] reasonable and good faith attempt at informal resolution of the dispute between the party requesting the personal records and the consumer or the consumer’s attorney.” (Code Civ. Proc. §1985.3(g).)

The court may, on motion or on the court’s own motion after giving notice and an opportunity to be heard, make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms and conditions as the court shall declare, including protective orders. (Civ. Proc. Code § 1987.1(a).)

Discussion

Defendant RUSD seeks an Order compelling Sara Sherman, Psy.D. to (1) comply with Defendant’s subpoena and appear for a remote deposition, (2) to testify and answer questions on all matters related to Dr. Sherman’s treatment and evaluations of Plaintiff Elijah Van Clark, and (3) to produce any and all documents responsive to the Defendant’s deposition subpoena no later than three (3) days in advance of her deposition.

Plaintiff has stated he received psychological care from Sara Sherman, Psy.D and Defendant RUSD is entitled to depose Dr. Sherman. (Cheung Decl. ¶ 5, Ex. B.) Moreover, Plaintiff has not moved to quash or modify the subpoena.

Both Plaintiff and Dr. Sherman were served with notice of deposition subpoena for personal appearance and production of documents scheduled for June 7, 2022. (Cheung Decl. ¶ 6, Ex. C, D.) The parties subsequently tried to reschedule the deposition for July.

On June 15, 2022, Dr. Sherman’s counsel, Adam Alban, stated that Dr. Sherman would comply with the deposition if Defendant RUSD obtained a HIPPA-compliant authorization. (Cheung Decl. ¶ 9, Ex. F.) Plaintiff’s counsel asserted he was amenable to providing the authorization but to date, no authorization has been submitted and Defendant RUSD does not think the authorization is forthcoming. (Cheung Decl. ¶¶ 11-14, Ex. G-I.)

So long as Defendant RUSD has complied with the requirements set forth in the Code of Civil Procedure section 1985.3, no authorization from Plaintiff is required. Any claim of privilege is deemed to be waived when the plaintiff, through his or her attorney, receives notice under section 1985.2 that the plaintiff’s records are being sought but takes no action to object to the subpoena. (See Colleen M. v. Fertility & Surgical Associates of Thousand Oaks (2005) 132 Cal.App.4th 1466, 1479; Inabnit v. Berkson (1988) 199 Cal.App.3d 1230, 1239.)

Both Code of Civil Procedure sections 1985.3 subdivision (e) and 1987.1 subdivision (a) require the Plaintiff to file a motion in order to object to the deposition and the production of documents on the basis of privilege.

Since there is no opposition to the motion or evidence that Defendant RUSD failed to comply with the requirements of section 1985.3, the Motion is GRANTED.

Conclusion

Defendant’s Motion to Compel the Deposition of Dr. Sara Sherman, Psy.D. and Produce the Requested Documents is GRANTED. The subject deposition must take place within 30 days unless the parties agree to a different time.

Moving Party to give notice.