Lawzilla Additional Information:
Per the Los Angeles court records defendant is represented by attorney Craig Mackie who is being sanctioned by the court.

Case Number: BC639439 Hearing Date: April 03, 2018 Dept: 92

YASARETH VILLASENOR,

Plaintiff(s),

vs.

SAMUEL BETTENCOURT, et al.,

Defendant(s).

Case No.: BC639439

[TENTATIVE] ORDER DENYING DEFENDANT’S MOTION TO COMPEL AUTHORIZATION FOR RELEASE OF MEDICAL RECORDS

Dept. 92

1:30 p.m.

April 3, 2018

Plaintiff, Yasareth Villasenor filed this action against Defendant, Samuel Bettencourt for damages arising out of an automobile accident. At this time, Defendant seeks an order compelling Plaintiff to sign an authorization to permit the Los Angeles Air Force Base to release Plaintiff’s medical records.

Defendant presents no relevant authority in support of the motion to compel Plaintiff to sign an authorization. In Miranda v. 21st Century Ins. Co. (2004) 117 Cal.App.4th 913, 918-919, 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 only release the records 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 motion was unopposed, and 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. 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.

In a footnote, the court 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.”

The Court notes that Plaintiff opposes the motion, correctly pointing out the fact that there is ample California appellate authority holding that the trial court does not have the power to create additional methods of discovery. See, for example, San Diego Unified Port Dist. V. Douglas E. Barnhart, Inc. (2002) 95 Cal.App.4th 1400, 1405 and the cases referenced therein. The motion to compel is therefore denied.

Plaintiff seeks sanctions in connection with the opposition. Plaintiff correctly notes that Defendant filed this motion without substantial justification. The Court therefore finds sanctions are appropriate. Plaintiff seeks sanctions in the amount of $4375 – 1.5 hours to review the parties’ correspondence, two hours to prepare two letters, two hours to review Defendant’s motion, three hours to prepare the opposition, one hour to review the reply, and three hours to appear at the hearing, all at $350/hour.

The declaration in support of the motion does not make clear which correspondence Plaintiff’s attorney reviewed. The declaration references and attaches a 3/07/18 letter, but not a 5/19/17 letter. The Court finds all other amounts reasonable, and therefore reduces the sanctions award by 2.5 hours, or $875. Sanctions are sought and imposed against Defendant and his attorney of record, jointly and severally; they are ordered to pay sanctions to Plaintiff, by and through his attorney of record, in the total amount of $3500, within twenty days.