2014-00159348-CU-UM

Michelle Rose vs. Geico General Insurance Company

Nature of Proceeding: Motion for Protective Order

Filed By: Dostart, Ryan L.

***If any party requests oral argument, then at the time the request is made, the
requesting party shall inform the court and opposing counsel of the specific
issue son which oral argument is sought.***

***Disclosure: The law firm of Dreyer, Babich, Buccola Wood and Campora LLP
was engaged to represent Judge Cadei’s family related to an auto accident in
2004-05. All such representation concluded at that time. Prior to Judge Cadei’s
appointment to the bench, he did have a professional relationship with that firm
including representing the firm regarding certain financial matters in the early
1990’s, referring matters to them and undertaking cases and clients that were
referred to him while he was in practice prior to June 2002. Judge Cadei has not
had any professional relationship with the members of the firm and does not
socialize with any of the attorneys from the Dreyer firm beyond the usual
meetings of professional organizations in the community.***

The court rules as follows on Claimant Michelle Rose’s (“Rose”) (1) motion to quash
deposition subpoenas issued by Respondents GEICO General Insurance Company (“GEICO”) and Nationwide Insurance Company of America (“Nationwide”) (collectively
“Respondents”), and (2) motion for protective order:

This is an uninsured motorist case. In June 2012, Rose demanded a UM arbitration.
The parties promptly engaged in discovery. On February 10, 2014, arbitration was
confirmed for March 28, 2014.

On February 25, 2014 and March 4, 2014, Respondents issued the subject subpoenas
for Rose’s medical records. The production dates listed in the subpoenas are March
18 and March 26, 2014–both within 30 days of arbitration. Similarly, on February 18,
2014, Respondents’ counsel sent Rose’s counsel an informal request to set deposition
dates within 30, and in some case 15, days of arbitration. Rose argues that the
subpoenas are untimely and should be quashed given the statutory discovery cut-off of
February 26, 2014. Rose likewise moves for a protective order in relation to the
proposed depositions. Rose bases her positions upon Insurance Code § 11580.2(f)
and Code of Civil Procedure § 2024.020(a). The latter subdivision requires litigants to
complete discovery 30 days before trial. Insurance Code § 11580.2(f) makes the
Discovery Act applicable to uninsured motorist arbitrations, subject to limitations not
pertinent here.

Respondents argue that the court should continue the arbitration 60 days to afford
them access to discovery that they contend is based upon recently provided
information. The court denies this request both because it is not persuaded that it has
authority to do so and because it is not persuaded that such an order is necessary or
proper at this time. The court expresses no opinion about the arbitrator’s authority to
continue the arbitration.

To the extent Respondents seek an order re-opening discovery, that request is also
DENIED.

Respondents further oppose the motion to quash on grounds that they did not learn
the identity of Santi Rao, M.D. until shortly after February 7, 2014, when Rose noticed
his deposition for February 21, 2014. Dr. Rao treated Rose on November 15, 2013.
According to a medical record generated at Dr. Rao’s office, Dr. Rao opines that
Rose’s pain is attributable to the car accident at issue in this case. Rose withdrew Dr.
Rao’s deposition notice and has indicated that she might call Dr. Rao as an expert.

The court agrees with Respondents that they are entitled to depose Dr. Rao, and
receive all his records of his treatment of Rose, notwithstanding the discovery cut-off.
Rose did not disclose Dr. Rao’s identity until February 2014, and Respondents could
be unfairly prejudiced if they are unable to depose him in his capacity as a treating
physician prior to arbitration. Accordingly, Rose is entitled to depose Dr. Rao and
obtain his records of treatment within 30 days of the arbitration. If Rose designates Dr.
Rao as an expert, then the deposition may encompass all his expert opinions. To the
extent Rose moves to quash subpoenas for records of Dr. Rao’s treatment of her, the
motion is denied.

Likewise, the court finds good cause for the deposition of Respondents’ expert Dr. Fry
to take place within 15 days of arbitration. Dr. Fry’s schedule prevents him from
attending deposition prior to the cut-off, and the court is not persuaded that Rose will
suffer any prejudice in accommodating his schedule.
The balance of Rose’s motions to quash deposition subpoenas and for protective
order is granted. With the exception of subpoenas served to obtain medical records
generated by Dr. Rao, there is no evident justification for Respondents’ belated service
of the subpoenas. Respondents’ only argument in this regard is that they were
collegial for agreeing to an arbitration date that Rose requested. Although the court
appreciates counsel’s cooperative efforts, absent a stipulation that the cooperation
was contingent upon the non-application of statutory discovery cut-offs, there is no
basis upon which to relieve Respondents from the statutory deadlines the arbitration
date triggered. Further, as Rose points out, Respondents’ belated attempts to gain
discovery appear to be the result of Respondents’ counsel’s misapprehension that
provisions governing discovery in judicial arbitration procedures applied to this case.
Absent an authority to the contrary, the court concludes that such a mistake of law
does not entitle Respondents to avoid applicable discovery cut-offs.

No monetary sanctions will be imposed.

The court notes that Rose filed exhibits containing her unredacted social security
number. Documents filed with the court are generally available for public viewing. If
Rose wishes to remove her social security number from public view, then she must file
a motion or application to seal pursuant to CRC 2.550-2.551.

Conclusion

The motions are GRANTED with the following exceptions: (1) Respondents may
depose Dr. Rao and obtain all his records of his treatment of Rose within 30 days of
trial; (2) Respondents may produce Dr. Fry for expert deposition within 15 days of trial.

The notice of motion does not provide notice of the court’s tentative ruling system, as
required by Local Rule 1.06(D). Counsel for moving party is directed to contact
counsel for opposing party forthwith and advise counsel of Local Rule 1.06 and the
court’s tentative ruling procedure. If counsel for moving party is unable to contact
counsel for opposing party prior to hearing, counsel for moving party shall be available
at the hearing, in person or by telephone, in the event opposing party appears without
following the procedures set forth in Local Rule 1.06(B).

The minute order is effective immediately. No formal order pursuant to CRC 3.1312 or
further notice is required.