JACQUELINE E COHN ET AL VS WILLIAM SEBASTIAN HIGGINS ET AL

Tentative Rulings

Case Number: BC643857    Hearing Date: April 22, 2021    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

   Plaintiffs, Jacqueline E. Cohn (“Jacqueline”), and Hudson E. Cohn (“Hudson”), by and through his Guardian Ad Litem, Jacqueline E. Cohn, (collectively, “Plaintiffs”) filed this action against Defendants, William Sebastian Higgins, Hilary Susan Rose, and Kevin P. Higgins (collectively, “Defendants”) for damages arising from a motor vehicle accident.

   Defendants, at this time, move to compel Plaintiff Hudson to provide further responses to Defendants’ special interrogatories, set five, and request for admissions (“RFAs”), set four. On 2/10/21, the parties participated in an Informal Discovery Conference (“IDC”) regarding the subject discovery dispute; however, the matter was not resolved. (Min. Order 2/10/21.) The parties agreed to meet and confer on the timeliness of any motion. On 2/25/21, Defendants filed the instant motions to compel further.

2. Motions to Compel Further responses

1. Parties’ Positions

Defendants move to compel further responses to special interrogatories 119 and 128, and to RFAs 56 and 58-59. Defendants contend Hudson has not provided complete, proper and responsive answers to the discovery requests. Defendants contend Plaintiff refuses to provide further responses based on the claim the motions are untimely. Defendants assert the motion is timely because although Hudson initially served responses on 5/29/20, Defendants extended the date to respond to Hudson up to and including 6/25/20 to serve further responses to the subject discovery. Defendants argue the additional three weeks, plus the 45 days brought the motion to compel date to 8/10/20, and that Defendants promptly sought a date for an IDC with the court, making the motion timely.

In opposition, Plaintiffs contend verified responses to the subject discovery was served on 5/29/20, which made the deadline to file a motion to compel further responses 45 days from this date, or 7/13/20. Plaintiffs argue there is no evidence of any written agreement between the parties to extend the motion to compel deadlines, so the motions are untimely. Further, Plaintiffs argue the discovery requests seek information about an unrelated condition not at issue.

In reply, Defendants contend defense counsel’s belief is that the three-week extension extended the 45-day time limit for Defendants’ motions to compel further.

1. Analysis

Motions to compel further responses must be brought within 45 days of receiving the verified or supplemental verified responses, or as otherwise agreed upon between the parties in writing. (CCP § 2033.290(c).) An additional 5 days is added where the response is served by mail. (See Code Civ. Proc. § 1013.) The 45-day limitation to move to compel further responses as to is jurisdictional, and courts are without authority to rule on untimely motions to compel except just to deny them. (See, e.g., Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410; and Sperber v. Robinson (1994) 26 Cal.App.4th 736, 746 [later motion did not relate back to earlier motion taken off calendar].) The 45–day deadline runs from the date the response is served, not from the date originally set for production or inspection. (CCP §2033.2900(c); Standon Co., Inc. v. Superior Court (1990) 225 Cal.App.3d 898, 903.) The deadline cannot be circumvented by propounding the same discovery again. (Prof. Career Colleges etc. v. Superior Court (1989) 207 Cal.App.3d 490, 492.)

In this case, it is undisputed that Plaintiff Hudson served verified responses to the subject discovery on 5/29/20. The parties then dispute whether Defendants’ meet and confer letter to Plaintiffs requesting further responses by 6/25/20 extended the time for Defendants to bring a motion to compel further responses by three weeks. (Mot. Exh. C.) 45 days from 5/29/20 was 7/13/20, and 45 days from 6/25/20 was 8/10/20. Defendants then filed an Informal Discovery Conference form regarding the subject discovery on 8/3/20. (Mot. Exh. D.)

However, Defendants did not file the instant motions until 2/25/21. The court notes the Standing Order re: Personal Injury Procedures at the Spring Street Courthouse states in pertinent part: “13. … Scheduling or participating in an IDC does not automatically extend any deadlines imposed by the [CCP] for noticing and filing discovery motions… [¶] If parties do not stipulate to extend deadlines, the moving party may file the motion to avoid it being deemed untimely.” (First Amended Standing Order re: Personal Injury Procedures, filed 2/24/20 at ¶ 13.)

Consequently, the filing of the IDC form did not stop the running of the time for Defendants to file a motion to compel further responses. Regardless of whether a three-week extension was granted or not, the motions filed 2/25/21 are untimely.

Defendants’ motions to compel further responses to special interrogatories and RFAs are denied.

Sanctions are mandatory against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response, 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. (CCP §§ 2030.300(d), 2033.290(d).) Plaintiffs request sanctions of $2,500 in opposing the motions to compel further. The request is unreasonable. The court awards Defendant two hours for the opposition and one hour to appear at the hearing all at the reasonable rate of $200 per hour, for a total attorney’s fees of $600 per hour.

Plaintiff does not identify any conduct by Defendants warranting sanctions against Defendants personally. Sanctions are imposed against Defendants’ counsel only. Defendants’ counsel is ordered to pay sanctions to Plaintiffs, by and through their attorney of record, in the total amount of $600.00, within twenty days.

Plaintiffs are ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

Dated this 22^nd day of April, 2021

Case Number: BC643857    Hearing Date: April 6, 2021    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

   Plaintiffs, Jacqueline E. Cohn and Hudson E. Cohn (collectively, “Plaintiffs”) filed this action against Defendants, William Sebastian Higgins, Kevin P. Higgins, and Hilary Susan Rose (collectively, “Defendants”) for damages arising out of an automobile accident that allegedly occurred on 3/17/16.

   Defendants, at this time, move to compel non-parties Aryeh Goldberg, MFT, Eric Li, M.D., Gila Shapiro, MFT, Mike Lane, MFT, Patricia Walshaw, PSYMPAC, and Rachel Thomasian, MFT (collectively, “Treating Physicians”) to appear at deposition and produce documents pursuant to deposition subpoenas served on each.

   On 3/19/21, Defendants filed a declaration from defense counsel providing Defendants were withdrawing the motion in full as to Patricia Walshaw, PSYMPAC and Aryeh Goldberg, MFT. On 3/19/21, counsel for Eric Li, M.D. (“Dr. Li”) filed a declaration providing Dr. Li intends to comply with any court order requiring Dr. Li to appear for deposition and produce records.

2. Motion to Compel Attendance at Depositions

1. Parties’ Positions

   Defendant contends the Treating Physicians’ depositions have been noticed several times, but they each have refused to appear and produce the requested documents based upon a lack of signed authorization from Plaintiffs. Defendants contends the Treating Physicians appearance for deposition and requested records are necessary to allow Defendants an opportunity to question the physicians regarding Plaintiffs’ medical conditions and psychological claims. Defendants assert both Plaintiffs and the Treating Physicians have objected to the deposition subpoenas, but the records are directly relevant to this action and Plaintiffs have placed their medical conditions at issue. In addition, Defendants argue there are no less intrusive means to obtain the requested records.

   In opposition, Plaintiffs assert they are not attempting to oppose the deposition attendance by any of their Treating Physicians, but contend the subpoenas are overbroad and not limited in scope to the conditions put at issue by Plaintiffs. Further, Plaintiffs argue there are less intrusive means for Defendants to obtain the relevant information, such as taking the oral depositions of psychological treaters, instead of obtaining records for the last 15 years unrelated to Plaintiffs’ psychological history.

   In reply, Defendants assert Plaintiffs are both claiming psychological injuries as result of the subject accident. Defendants further contend Plaintiffs’ opposition is untimely, and Defendants limited the subpoenas to psychological records, billing records, psychological and billing records relating to treatment, diagnosis and assessments of depression, insomnia, anxiety, PTSD relating to Plaintiffs from 2006 to present. In addition, Defendants argue there is no other way for Defendants to obtain the limited scope of records aside from a court order.

2. Analysis

   To require the attendance and testimony of a non-party deponent, as well as his or her production of any document or tangible thing for inspection and copying, the party seeking discovery must serve on that deponent a deposition subpoena, pursuant CCP § 2020.010, et seq. (CCP §§ 2020.010(b), 2025.280(b); See also Sears, Roebuck & Co. v. National Union Fire Insurance Company of Pittsburgh (2005) 131 Cal.App.4th 1342, 1350 [discovery from nonparties is governed by CCP §§ 2020.010, et seq., and is primarily carried out by way of subpoena].)

   If a deponent fails to answer any question or to produce any document, the party seeking discovery may move the court for an order compelling that answer or production. (CCP § 2025.480(a).) If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition. (CCP § 2025.480(i).)

   Here, the subject subpoenas request, “Any and all Medical and billing records regarding [Plaintiffs] …, including handwritten notes, audio recordings, test results, prognosis, diagnosis, recovery and treatment records from 2006 to present.” (Mot. Exh. A.) Plaintiffs do not dispute records concerning Plaintiffs’ medical and psychological conditions are relevant to this matter, but rather Plaintiffs assert they objected to the subpoenas on the grounds they were overbroad in duration in scope.

   By filing a personal injury action, plaintiffs place in issue their past and present physical and/or mental conditions related to the injury sued upon. All medical and/or psychological records relating to the claimed injuries are thus discoverable. Evidence Code §§ 996, 1016; Britt v. Superior Court (1978) 20 Cal.3d 844, 862–864. Normally, information about medical conditions entirely different from the injury sued upon is beyond the scope of discovery. However, medical records pertaining to an unrelated condition are discoverable on a showing of “good cause” if the condition is relevant to the issue of proximate causation. (Evidence Code §999; Slagle v. Superior Court (1989) 211 Cal.App.3d 1309, 1314–1315 [good cause shown by info that plaintiff was blind 6 months before accident].)

   In this case, the subpoenas demand any and all medical and billing records regarding Plaintiffs from 2006 to present. The subpoenas as drafted would necessarily include information regarding any treatment Plaintiffs have ever received from the Treating Physicians whether related to the subject psychological conditions or not. As noted above, there are times when preexisting conditions are of such relevance to the issues presented that evidence relating to these conditions is discoverable. Defendants, however, do not establish any preexisting injuries Plaintiffs may have that are directly relevant to injuries claimed in this lawsuit, such that Defendants are entitled to all of Plaintiffs’ medical records without limiting the records to conditions at issue in this action. While the reply asserts Defendants are limiting the requested records to psychological and billing records relating to treatment, diagnosis and

   assessments of depression, insomnia, anxiety, PTSD relating to Plaintiffs, the subpoenas as drafted are not so limited.

   In addition, the complaint alleges the subject accident occurred on 3/17/16, while the subpoenas request records from 2006 to present. Defendants do not articulate why records going back more than 10 years before the accident are relevant to this matter such as to outweigh any privacy concerns by Plaintiffs. Defendants do not establish these records, without limitation as to the relevant medical and psychological conditions at issue for over 10 years prior to the accident until present are discoverable in this matter. Thus, Plaintiffs’ objections to the deposition subpoenas are well taken. (Mot. Exh. B.)

   Defendants’ motion to compel attendance at deposition and production of documents is denied. If Defendants wish to subpoena the Treating Physicians and records in the future, the parties are ordered to meet and confer in good faith as to properly limiting the subpoenas. For purposes of assisting the parties in connection with meet and confer efforts, the court advises that it would be inclined to limit any future subpoena to five years prior to the date of injury. The court finds medical records from more than five years prior to the date of injury are not sufficiently relevant to overcome the right of privacy.

   No sanctions are requested, and none are imposed.

   Defendant is ordered to give notice.

   Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

   Dated this 6^th day of April, 2021

Case Number: BC643857    Hearing Date: August 24, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Plaintiffs, Jacqueline and Hudson Cohn filed this action against Defendants, William Sebastian Higgins, Hillary Susan Rose, and Kevin P. Higgins for damages arising out of an automobile accident. Defendants propounded deposition subpoenas for production of Plaintiff’s mental health records. The doctors to whom the subpoenas were propounded refused to produce the records without a court order or a signed HIPPA form. At this time, Defendants move to compel Plaintiffs to sign an authorization concerning the subject records.

The motion to compel Plaintiffs to sign authorizations is denied. Defendants provide no relevant authority in support of the motion to compel Plaintiffs to sign an authorization. Defendants cite Miranda v. 21st Century Ins. Co. (2004) 117 Cal.App.4th 913, 918-19, wherein the court of appeals considered this issue. In Miranda, 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.

Notably, to the extent the court of appeals did rule on the issue, it was highly skeptical of the method of discovery. In a footnote, it 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. These matters remain mysteries because of the scant record presented to the trial court.”

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.4^th 1400, 1405 and the cases referenced therein. The motion to compel is therefore denied.

Defendants are ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not wish to submit on the tentative, they should arrange to appear remotely.

Dated this 24^th day of August, 2020

Case Number: BC643857    Hearing Date: August 03, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Plaintiffs, Jacqueline and Hudson Cohn filed this action against Defendants, William Sebastian Higgins, Hillary Susan Rose, and Kevin P. Higgins for damages arising out of an automobile accident. Defendants propounded deposition subpoenas for production of Plaintiff’s mental health records. The doctors to whom the subpoenas were propounded refused to produce the records without a court order or a signed HIPPA form. At this time, Defendants move to compel Plaintiffs to sign an authorization concerning the subject records.

The motion to compel Plaintiffs to sign authorizations is denied. Defendants provide no relevant authority in support of the motion to compel Plaintiffs to sign an authorization. Defendants cite Miranda v. 21st Century Ins. Co. (2004) 117 Cal.App.4th 913, 918-19, wherein the court of appeals considered this issue. In Miranda, 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.

Notably, to the extent the court of appeals did rule on the issue, it was highly skeptical of the method of discovery. In a footnote, it 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. These matters remain mysteries because of the scant record presented to the trial court.”

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.4^th 1400, 1405 and the cases referenced therein. The motion to compel is therefore denied.

Defendants are ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. The court is not available to hear oral argument on this date. If the parties do not submit on the tentative and want oral argument, the hearing will have to be continued, and the parties must work with the clerk to find an available date for the continuance.

Dated this 3^rd day of August, 2020

Case Number: BC643857    Hearing Date: February 10, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Plaintiffs, Jacqueline and Hudson Cohn (mother and son) filed this action against Defendants, William Sebastian Higgins, Hillary Susan Rose, and Kevin P. Higgins for damages arising out of an automobile accident. The accident occurred on 3/17/16, and Plaintiffs filed suit on 12/15/16. The original trial date was 6/15/18. The Court has twice continued the trial date per ex parte application.

At this time, Defendants move to continue the trial date from 4/07/20 for sixty days in order to complete discovery concerning Plaintiffs’ claimed damages. Defendants provide evidence that Plaintiffs did not timely respond to discovery, and when they served substantive responses, on 1/03/20, the responses revealed a number of treating psychologists not previously disclosed. Defendants also provide evidence that they attempted to obtain these doctors’ records through Plaintiffs’ authorization, but Plaintiffs did not sign the authorization forms; thus, Defendants are in the process of subpoenaing the records. Notably, no party opposes this motion.

The Court finds the excused failure to timely complete discovery constitutes good cause to continue the trial date and grants the motion. The 4/07/20 trial date is advanced to today’s date and continued to Tuesday, 6/09/20 at 8:30 a.m. in Department 31 of the Spring Street Courthouse. The 3/23/20 FSC date is advanced to today’s date and continued to 5/26/20 at 10:00 a.m. in Department 31. All discovery and expert cut-off dates are continued to reflect the new trial date.

Defendants are ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.