NEANGDY SON VS KARLYN POWELL, ET AL.

Tentative Rulings

Case Number: 18STLC02218    Hearing Date: March 09, 2020    Dept: 26

Son v. Powell, et al.

MOTION TO QUASH DEPOSITION SUBPOENA

TENTATIVE RULING:

Plaintiff Neangdy Son’s Motion to Quash Deposition Subpoena is DENIED.

ANALYSIS:

Plaintiff Neangdy Son (“Plaintiff”) filed the instant action for motor vehicle negligence against Defendants Karlyn Powell and James E. Van Noy (erroneously sued as Van Noy Edward, Jr.) (“Defendant Noy”) on February 5, 2018. Loya Casualty Insurance Company (“Intervenor”) has intervened in this action on behalf of Defendant Powell.

Plaintiff filed the instant Motion to Quash Deposition Subpoena on December 13, 2019 and supplemental motion papers on December 20, 2019. Defendant Noy and Intervenor filed an opposition on December 20, 2019 and Plaintiff replied on January 28, 2020.

Discussion

Plaintiff moves to quash a deposition subpoena, issued by Defendant Noy on December 4, 2019, to “John D. Adams, D.O.” The Motion was initially brought on the grounds that the subpoena required production of document less than 30 days before the earlier trial date, in violation of Code of Civil Procedure section 2024.020. (Motion, Notice, pp. 1:24-2:4.) Following the granting of Defendant Noy and Intervenor’s ex parte application to continue the trial date and related discovery dates, the basis of the initial Motion is moot.

Plaintiff thereafter filed a supplemental motion based on the statutory physician-patient privilege set forth at Cal. Evidence Code sections 990 and 1014. (Supp. Separate Statement, p. 2:8.) Cal. Evidence Code section 1014, however, pertains to psychotherapist-patient relationships. (Cal. Evid. Code, § 1014.) In any event, no evidence is provided in support of the Motion to demonstrate the nature of Plaintiff’s relationship to John D. Adams, D.O. In fact, the Motion is unsupported by any evidence. The Court, therefore, can make no determination that the privileges claimed by Plaintiff are applicable here.

Second, Plaintiff contends that that “the subpoena calls for production of records which are not limited to the areas of plaintiff’s body that has been put at issue as part of her personal injury claim. Indeed, the subpoena itself is unlimited in its scope.” (Supp. Motion, p. 2:2-4.) However, as no copy of the subpoena is submitted for the Court’s review, it cannot make any finding regarding the scope of the production called for therein and whether the scope is beyond that which is permitted by the law.

Finally, the Motion does not cite to any legal authority for the Court’s power to quash the subpoena. The Supplemental Motion provides no citation for its contention that “a motion to quash is appropriate to contest the validity of deposition subpoena duces tecum.” (Supp. Motion, p. 2:6-7.) The Court finds that Plaintiff has not shown through citation to proper legal authority that the subpoena can be quashed.

Based on the foregoing, Plaintiff Neangdy Son’s Motion to Quash Deposition Subpoena is DENIED.

Defendant to give notice.

Case Number: 18STLC02218    Hearing Date: December 17, 2019    Dept: 94

MOTION TO STRIKE ANSWER AND ENTER DEFAULT

(CCP § 2023.030(d))

TENTATIVE RULING: Plaintiff Neangdy Son’s Motion to Strike Answer and Enter Default is GRANTED.

ANALYSIS:

1. Background

On February 5, 2018, Plaintiff Neangdy (“Plaintiff”) Son filed a personal injury action against Karlyn Powell (“Powell”) and James E. Van Noy, erroneously sued as van Noy Edward, Jr. (“Noy”) (collectively, “Defendants”).

On November 27, 2019, Defendant Noy filed an answer to Plaintiff’s complaint. On October 16, 2019, this Court granted Plaintiff’s Motion to Compel Responses to Form Interrogatories and Request for Production of Documents and Request for Sanctions against Defendant Noy. (10/16/19 Minute Order.) On November 14, 2018, Plaintiff filed Motion to Strike Answer and Enter Default (the “Motion”) against Defendant Noy with a reservation date of May 18, 2020. On November 14, 2019, this Court granted Plaintiff’s Ex Parte Application for Order Shortening Time Plaintiff’s Motion. (11/14/19 Minute Order.) The Court specifically stated that “if defendant is not able to provide verified responses [to Plaintiff’s interrogatories] by 12/12/19, defendant will not oppose the motion striking defendant’s answer.” (Id.)

As of December 11, 2019, no opposition or reply briefs have been filed.

1. Legal Standard

“To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose…sanctions against anyone engaging in conduct that is a misuse of the discovery process.” (Code Civ. Proc., § 2023.030.) The court may impose a terminating sanction by an order striking out the pleadings or parts of pleadings of any party engaging in the misuse of the discovery process.” (Id., subd. (d)(1).) A misuse of the discovery process includes disobeying a court order to provide discovery. (Code Civ. Proc., 2023.010, subd. (g).)

1. Discussion

1. Strike Answer

Trial courts should only exercise their authority to terminate a case in extreme situations such as where no lesser alternatives would remedy the situation or when a party ignores a court directive. (Del Junco v. Hufnagel (2007) 150 Cal.App.4th 789, 799.)

Here, Defendant ignored the Court’s order to provide verified responses without objections to Plaintiff’s Form Interrogatories by November 5, 2019. (See 10/16/19 Minute Order.) On November 8, 2019, Plaintiff received two verifications, one entitled “Further Responses to Form Interrogatories, Set One (1) and Response to Request for Demand for and Production of Documents, Set One (1)”and the second one entitled “Response to Request for Admission, Set One (1).” (Mot., Piazza Decl., ¶ 7, Exh. 2.) However, neither of these documents satisfy the Court’s order.

On November 14, 2019 Defendant Noy was given a further opportunity to provide verified responses to avoid losing the ability to oppose this Motion. (11/14/2019 Minute Order.) Defendant has nonetheless failed to comply with the Court’s deadline of December 12, 2019.

Given Defendant’s repeated failure to comply with the Court’s directives, the Court finds that no lesser alternatives are appropriate here.

Plaintiff’s Motion to Strike Defendant’s Answer is GRANTED.

1. Default

“A request to enter default for failure to make discovery, failure to comply with court order, or other ground of default must be directed to the direct calendar judge, Specialized Civil Court judge, or supervising judge, whichever is appropriate.” (Super Ct. L.A. County, Local Rules, rule 3.200 (b).)

Plaintiff appropriately requests this court enter default as to Defendant Noy for failure to comply with court order.

Plaintiff’s request to enter default is GRANTED.

1. Conclusion & Order

For the foregoing reasons, Plaintiff’s Motion is GRANTED.

Moving party is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCdept94@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.