Case Number: BC615270 Hearing Date: October 19, 2018 Dept: NCD

TENTATIVE RULING

Calendar: 9

Date: 10/19/18

Case No: BC 615270 Trial Date: April 8, 2019

Case Name: Ruiz, et al. v. All Saints Healthcare, et al.

MOTION TO COMPEL COMPLIANCE WITH SUBPOENA

(CCP § 2020.240, 2025.450, et seq.)

Moving Party: Defendant Darbun Enterprises, Inc. dba All Saints Healthcare

Responding Party: Plaintiff Abigail Ruiz, through her GAL; Third Party North Los Angeles County Regional Center (No Opposition)

RULING:

[No opposition]

Defendant Darbun Enterprises, Inc. dba All Saints Healthcare’s Motion for Order Directing Compliance with Subpoena is CONTINUED TO November 16, 2018..

There is no proof of service showing the motion has been served on the witness or the attorney filing objections on behalf of the witness, and no proof of any notice of this hearing being given to the witness. There is also no proof of service submitted showing the personal service of the subpoena on the witness, which is required to give rise to jurisdiction over the witness.

The court is also concerned that the whereabouts of the guardian ad litem are evidently currently not known, so that it is not clear that plaintiff’s interests are properly being protected in this matter given the apparent absence of the current guardian ad litem.

RELIEF REQUESTED:

Order compelling third party witness to comply with defendant’s subpoena for records, or requiring plaintiff to sign an authorization for release of records.

DECLARATION SUPPORTING MOTION:

Reasonable and good faith attempt to resolve informally: Exhibit G

FACTUAL BACKGROUND:

Plaintiffs Abigail Ruiz, through her GAL Sugeydi Chavez-Lua, and Chavez-Lua, individually, bring this medical malpractice action alleging that while plaintiff Ruiz, then fourteen-months-old, was a patient at defendant All Saints Healthcare, defendants failed to adequately supervise her so that she became non-responsive in her crib, and suffered extensive brain damage.

ANALYSIS:

Procedural

The proof of service filed with the motion does not show that notice of this motion or hearing has been served on the third party deponent.

CCP § 2020.220(c) provides that

“Personal service of any deposition subpoena is effective to require all of the following of any deponent who is a resident of California at the time of service:

(1) Personal attendance and testimony, if the subpoena so specifies.

(2) Any specified production, inspection, testing and sampling.

(3) The deponent’s attendance at a court session to consider any issue arising out of the deponent’s refusal to be sworn, …or to produce specified items, or to permit inspection of photocopying, if the subpoena so specifies…”

CCP § 1987.1 provides in pertinent part:

“(a) 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.

(Emphasis added).

CCP § 1005 (a) requires that “Written notice shall be given” for various motions, including any proceeding under the code “in which notice is required…” It appears that this is a motion for which notice is required, but was not given to the party to the subpoena against which relief is sought.

The subpoena here does not appear to specify that deponent’s attendance at a court session is required, and it appears that at the very least the deponent is entitled to notice of this proceeding at which it may be ordered to comply with a subpoena to which it has served formal objections. Specifically, the motion attaches a document, “Non-Party North Los Angeles County Regional Center’s Objections to All Saints Healthcare’s Subpoena for Production of Records,” which was prepared and served by the Regional Center’s attorneys, Clousepaniac Attorneys. It appears that these attorneys should have been given notice of this motion and the hearing date in the event the third party would like an opportunity to be heard on this matter. This deficiency gives rise to due process concerns, and the motion accordingly is continued to permit defendant sufficient time to serve notice on the deponent’s counsel.

In addition, the proof of service filed with the deposition subpoena does not show personal service of the subpoena on the deponent, but again shows only service by mail on two sets of counsel, not including the counsel which served the objections on behalf of the Regional Center. Without some showing that there was personal service of the subpoena here, the court has no statutory authority to require production and inspection. The motion is continued for the submission of further proof that the subpoena was personally served on the deponent.

Substantive

Under CCP § 2017.010, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action…if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.”

CCP § 2020.220(c) provides, in pertinent part, that

“Personal service of any deposition subpoena is effective to require all of the following of any deponent who is a resident of California at the time of service:

(1) Personal attendance and testimony, if the subpoena so specifies.

(2) Any specified production, inspection, testing and sampling….”

CCP § 2020.240 provides: “A deponent who disobeys a deposition subpoena in any manner described in subdivision (c) of Section 2020.220 may be punished for contempt under Chapter 7 (commencing with Section 2023.010) without the necessity of a prior order of court directing compliance by the witness.”

Under CCP section 2025.480:

“(a) If a deponent fails to answer any question or to produce any document or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.”

CCP § 1987.1 provides in pertinent part:

“(a) 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.

(b) The following persons may make a motion pursuant to subdivision (a):

(1) A party.”

Here, if it is established to the satisfaction of the court that the subpoena was personally served on the Regional Center, an objection was filed, objecting that the subpoena is overly broad, burdensome, oppressive, and fails to impose reasonable time and other limitations, and that the records sought are confidential and privileged, and protected by HIPPA and other confidentiality provisions. [Ex. E].

The subpoena is directed to a Regional Center which defendant indicates is a nonprofit, private corporation that contracts with the Department of Developmental Services to coordinate services for individuals with developmental disabilities, and that the records are relevant to determining the level of services plaintiff will need long-term care and therefore go to the issue of damages.

The subpoena seeks records from June 1, 2011 to the present:

“ANY AND ALL RECORDS REGARDING THE CARE AND TREATMENT OF ABIGAIL RUIZ AKA: BABY RUIZ, INCLUDING BUT NOT LIMITED TO DOCUMENTS PERTAINING TO THE DELIVERY OF SERVICES AND RESOURCES TO ABIGAIL RUIZ AKA: BABY RUIZ AND HER FAMILY.”

The Regional Center is asserting appropriate privacy and confidentiality objections, but has failed to oppose this motion, so failed to meet its initial burden to establish the existence of the facts to support the objections. See Williams v. Superior Court (July 13, 2017) 3 Cal.5th 531, 556-557 (“The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious…. Courts must instead place the burden on the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion…”). This appears another concern which can be addressed by continuing the hearing on this motion.

In addition, evidently, this matter is complicated by the fact that while counsel for plaintiffs is willing to advise the GAL to execute an authorization for the release of the subject records, the GAL’s whereabouts are currently unknown, so there will evidently be some request for court intervention to change the GAL. [See Ex. G]. This situation leaves the matter in a current posture where no one but plaintiff’s attorney is protecting the interests of plaintiff.

This issue should be discussed at the hearing, as it appears that a voluntary authorization would be the best way to address the issues of all concerned, and move this matter along, and that a brief continuance to permit the appointment of another GAL could most expeditiously resolve the matter.