Case Number: BC707380 Hearing Date: November 14, 2019 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

CHRISTOPHER CEBALLOS,

Plaintiff,

v.

JOAN PANIAGUA,

Defendant.

Case No.: BC707380

Hearing Date: November 14, 2019

[TENTATIVE] order RE:

DEFENDANT’S MOTION TO COMPEL

BACKGROUND

Plaintiff Christopher Ceballos (“Plaintiff”) filed this action following a motor vehicle collision with Defendant Joan Paniagua (“Defendant”). Defendant moves to compel third party Gerald Alexander, M.D. (“Dr. Alexander”) to comply with a deposition subpoena for the production of medical records. Defendant personally served the motion upon Dr. Alexander, and the motion is unopposed. The motion is granted.

LEGAL STANDARD

Code of Civil Procedure section 1987.1 provides, “If 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 trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by [a party or witness] . . . may make an order . . . directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.” (Code Civ. Proc. § 1987.1.) Prior to serving a subpoena on a third party for the production of personal records, the party seeking the discovery must serve a copy of the subpoena on the individual to whom the records pertain. (Code Civ. Proc. § 1985.3, subd. (e).)

DISCUSSION

On May 23, 2019, Defendant served a deposition subpoena upon the custodian of records for Gerald Alexander, M.D. for the production of Plaintiff’s medical records, which are relevant because they relate to the injuries at issue in this litigation. Plaintiff objected after Defendant served him with a copy of the subpoena. Plaintiff’s objections are overruled for two independent reasons. If Plaintiff sought to stop production of the documents, he was required to file a motion to quash the subpoena. (Code Civ. Proc. §§ 1987.1, subd. (c), 1985.3, subd. (g).) The subpoena set the date for production as June 20, 2019, so Plaintiff should have filed his motion to quash the subpoena before June 14, 2019. (See Code Civ. Proc. § 1985.3, subd. (g).) As Plaintiff did not timely move to quash the subpoena, he has waived any right to prevent the production of the subpoenaed documents.

Putting that aside, even if the Court were to reach the merits of Plaintiff’s objections, they would be overruled. Plaintiff “may not withhold information which relates to any physical or mental condition which they have put in issue by bringing the lawsuit.” (Britt v. Superior Court (1978) 20 Cal.3d 844, 864; City & County of San Francisco v. Superior Court (1951) 37 Cal.2d 227, 232.) Therefore, Plaintiff has waived any privacy interest or privilege associated with these records.

Defendant seeks sanctions against Plaintiff’s counsel, Michael Schemtoub, in the amount of $1,430.00, pursuant to Code of Civil Procedure Section 2023.030. “The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. The court may impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc. § 2023.030, subd. (a).) Defendant contends that Plaintiff’s counsel had made, without substantial justification, an unmeritorious objection to discovery, which has ultimately resulted in Defendant needing to bring this motion.

The Court initially heard this motion on November 8, 2019. However, the Court continued the hearing to November 14, 2019, because Defendant’s counsel stated that she did not receive advance notice that Plaintiff’s counsel would challenge the sanctions award, and Plaintiff’s counsel agreed to file a supplemental declaration on the issue whether sanctions were appropriate. The Court has now reviewed and considered that declaration, but it does not change the Court’s tentative decision to order sanctions.

Defendant served the subpoena upon Dr. Alexander on May 23, 2019. (Declaration of Mona L. Bauer, ¶ 5 & Exh. A.) Plaintiff’s counsel objected on June 15, 2019. (Id., ¶¶ 7-8 & Exh. C & D.) Plaintiff’s counsel did not withdraw the objection before the motion was filed. (Declaration of Stephanie Folan, ¶ 4.) The objection was withdrawn on October 23, 2019. (Ibid.) Nor did Plaintiff’s counsel inform Defendant’s counsel that the objection would be withdrawn prior to the filing of the motion. (Ibid.) Instead, Plaintiff’s counsel persisted in making a meritless objection from June 15, 2019 to October 23, 2019, necessitating this motion. As discussed, it was inappropriate to make an objection to Dr, Alexander, which presumably was the reason he did not comply with the subpoena. Moreover, the objection had no merit for the reasons discussed. Therefore, the Court finds that Plaintiff’s counsel abused the discovery process, necessitating this motion, which warrants sanctions. The Court orders sanctions in the amount of $585 based upon three hours of attorney time at a billing rate of $195, plus one filing fee of $60, for a total of $645.

CONCLUSION AND ORDER

Per Code of Civil Procedure section 1987.1, Defendant’s motion to compel compliance with the subpoena it served on Deponent is granted. The Court finds that Plaintiff has waived any privacy interest and privilege in the medical records in Dr. Gerald Alexander, M.D.’s possession and orders him to produce these records within twenty (20) days of notice of this order. The Court orders Plaintiff’s counsel, Michael Schemtoub, to pay sanctions in the amount of $645 to Defendant, through counsel, within twenty (20) days of notice of this order. Defendant shall provide notice and file proof of such with the Court.

DATED: November 14, 2019 ___________________________

Hon. Stephen Goorvitch

Judge of the Superior Court