Case Number: 16K12756 Hearing Date: May 29, 2018 Dept: 94

Defendant’s Motion to Compel Deposition of Kenneth P. Winer D.C.’s Compliance with Deposition Subpoena is GRANTED. Kenneth P. Winer, D.C. is ordered to produce all non-privileged records including medical records, billing, and imaging concerning Plaintiff Gloria Saucedo from the last 10 years concerning the cervical spine, thoracic spine, lumbar spine and right shoulder within fifteen (15) days of the hearing on this Motion.

Legal Standard

CCP §1987.1(a) provides that:

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 the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, 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. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.

Discussion

Defendant Mamdi moves this Court for an order compelling custodian of records at third-party Kenneth P.Winer’s office to comply with duly noticed deposition subpoena.

On December 12, 2017, Defendant served the custodian of records for Kenneth P. Winer, D.C. requiring that Kenneth P. Winer, D.C. produce all non-privileged records including medical records, billing and imaging concerning Plaintiff from the last 10 years concerning the cervical spine, thoracic spine, lumbar spine, and right shoulder. (Motion, Exhs. A and G.) On December 28, 2017, Plaintiff’s counsel, Ira N. Katz, served an objection to the subpoena. (Vinje Decl. ¶10.) Plaintiff did not file a motion to quash or modify the subpoena. (Id. at ¶11.)

Defendant contends that good cause exists for compelling compliance with the deposition subpoena. Defendant maintains that the records sought are material to the defense of liability and injury claims presented by Plaintiff in order to properly defend this action.

CCP §1985.3(k) provides that a party must comply with specified procedures to obtain to “personal records” of a “consumer.” Further, when the personal records of a consumer are sought, Section 1985.3(k) states that the witness is not required to produce any documents—unless the subpoenaing party complies with all notice and service requirements pursuant to Section 1985.3(b) which provides the following:

Prior to the date called for in the subpoena duces tecum for the production of personal records, the subpoenaing party shall serve or cause to be served on the consumer whose records are being sought a copy of the subpoena duces tecum, of the affidavit supporting the issuance of the subpoena, if any, and of the notice described in subdivision (e), and proof of service as indicated in paragraph (1) of subdivision (c). This service shall be made as follows:

To the consumer personally, or at his or her last known address, or in accordance with Chapter 5 (commencing with Section 1010) of Title 14 of Part 3, or, if he or she is a party, to his or her attorney of record. If the consumer is a minor, service shall be made on the minor’s parent, guardian, conservator, or similar fiduciary, or if one of them cannot be located with reasonable diligence, then service shall be made on any person having the care or control of the minor or with whom the minor resides or by whom the minor is employed, and on the minor if the minor is at least 12 years of age.

…

At least five days prior to service upon the custodian of the records, plus the additional time provided by Section 1013 if service is by mail.

As a preliminary matter, the witness is a chiropractor and the records sought are Plaintiff’s personal medical records. The profession of “chiropractor” is listed in Section 1985.3(a), and therefore Defendant’s Motion is controlled by Section 1985.3.

Additionally, the Proof of Service filed on May 2, 2018 indicates that an individual named “Antonia L” was served with the Notice of Motion and Motion at 7127 Owensmouth Avenue, Canoga Park, CA 91303[1] on “4/19.” Proof of Service was sent by mail to the Law Offices of Ira N. Katz on May 1, 2018.

Based on the foregoing the Court finds that Defendant has complied with this Court’s April 5, 2018 Order as well as the provisions of CCP §1985.3. Further, Defendant has advanced good cause in compelling compliance with the duly noticed deposition subpoena last issued and served on December 12, 2017. As such, Defendant’s Motion is GRANTED. The Court declines to award monetary sanctions pursuant to CCP §2023.030 as the Court finds that Defendant’s objections are of merit and made with substantial justification as to proper service under CCP §1985.3.

The Court orders custodian of record, Kenneth P. Winer, D.C. to produce all non-privileged records including medical records, billing, and imaging concerning Plaintiff Gloria Saucedo from the last 10 years concerning the cervical spine, thoracic spine, lumbar spine and right shoulder within fifteen (15) days of the hearing on this Motion.

[1] Listed as the address for Kenneth P. Winer.