Case Number: BC602681 Hearing Date: March 12, 2018 Dept: 97

Superior Court of California
County of Los Angeles
Department 97

Cecelia Kleiner,

Plaintiff,

v.

Ralphs Grocery Company, et al.,

Defendants.

Case No.: BC602681

Hearing Date: March 12, 2018

[TENTATIVE] order RE:

Motion to Compel Compliance with Subpoena; motion for court order to compel plaintiff to produce mental health records, or in the alternative, for issue/evidence sanctions

Background

This action arises out of a slip and fall that occurred on March 24, 2015. Defendant Ralphs Grocery Company (“Defendant”) seeks to enforce subpoenas served on nonparties Los Angeles County Department of Mental Health and Didi Hirsch Mental Health Center. Both non-parties refused to produce records without a court order or a signed authorization from Plaintiff Cecelia Kleiner (“Plaintiff”). In the alternative, Defendant seeks an order compelling Plaintiff to sign the authorizations for release of her mental health records.

Plaintiff has not filed any opposition to this motion.

Discussion

Motion to Compel Compliance with Subpoena

As Defendant notes in its motion, CCP § 1987.1 provides that “[i]f a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by [a party or a witness] . . . may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.” (See also Def’s Motion pp. 3-4.)

However, Defendant’s motion to compel nonparties Los Angeles County Department of Mental Health and Didi Hirsch Mental Health Center to produce the mental health records must be denied for failure to comply with California Rule of Court, Rule 3.1346. California Rule of Court. Rule 3.1346 requires that “[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.” Based upon Defendant’s proof of service, only Plaintiff was served with this motion. As Los Angeles County Department of Mental Health and Didi Hirsch Mental Health Center were not served with Defendant’s motion via personal service, the motion must be denied.

Motion to Compel Plaintiff to Sign Authorization Releasing Medical Records

Defendant has presented no statutory or case authority for Defendant’s request to compel Plaintiff to sign an authorization releasing her medical and mental health records. However, the Court notes that Miranda v. 21st Century Ins. Co. (2004) 117 Cal.App.4th 913 (“Miranda”), is instructive.

In Miranda, the plaintiff made an underinsured motorist’s claim. The defendant commenced discovery, which revealed that the plaintiff had been treated for post-concussion symptoms with Kaiser in 2000. The defendant followed up with a subpoena to Kaiser, but Kaiser indicated it would release the records only with a signed authorization from the plaintiff. The plaintiff refused to sign an authorization. The defendant ultimately filed an action to commence discovery with the Superior Court. The defendant concurrently filed a motion to compel the plaintiff to sign an authorization for release of the records from Kaiser. The plaintiff did not file any written opposition, but counsel specially appeared on the plaintiff’s behalf and objected on the basis that the plaintiff had not been personally served with the motion. The trial court granted the motion. The plaintiff continued to refuse to sign the authorization, and the trial court ultimately granted a motion to dismiss based on the plaintiff’s non-compliance with the order granting the motion to compel. The plaintiff appealed, but the sole issue on the appeal was whether the trial court had jurisdiction to dismiss the case; the Court of Appeals did not rule on the propriety of the issuance of the order compelling the plaintiff to sign the authorizations.

Notably, to the extent the Court of Appeals did rule on the issue in Miranda, it was highly skeptical of the method of discovery. In a footnote, it indicated, “The record does not reflect the reason the medical facilities requested plaintiff’s authorization. Perhaps defendant did not comply with the procedures to obtain “personal records” of a “consumer” as required by section 1985.3 of the Code of Civil Procedure, in which case the medical facilities had a sufficient basis to refuse compliance. (Code Civ. Proc., § 1985.3, subd. (k).) If section 1985.3 had been complied with, the record does not indicate why defendant did not simply move to compel compliance with the subpoena pursuant to section 1987.1, instead of pursuing an unwilling plaintiff for a signed authorization. These matters remain mysteries because of the scant record presented to the trial court.”

The Court further notes that though Plaintiff did not oppose this motion, the Court is not inclined to grant the motion due solely to a lack of opposition. There is ample California appellate authority holding that the trial court does not have the power to create additional methods of discovery, and the Court refuses to do so here. (See, e.g., San Diego Unified Port Dist. V. Douglas E. Barnhart, Inc. (2002) 95 Cal.App.4th 1400, 1405 and the cases referenced therein.)

As suggested by the Court of Appeal in Miranda, Defendant’s remedy is to pursue this discovery through an established and proper channel, such as by way of a motion to compel compliance with the subpoena pursuant to section 1987.1. As noted above, Defendant has filed such a motion, but because of procedural defects, that motion may not be granted.

Conclusion and Order

Based on the foregoing, Defendant’s motion is denied without prejudice. Defendant may bring another motion to enforce subpoenas but must serve the moving papers upon the non-party deponents according to CRC, rule 3.1346.

Defendant is ordered to give notice of this order.

DATED: March 12, 2018 ___________________________

Elaine Lu

Judge of the Superior Court