On 08/09/2017 ISAIAH SOLORZANO filed a Personal Injury - Motor Vehicle lawsuit against AVIV VERED. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is STEPHEN I. GOORVITCH. The case status is Disposed - Dismissed.
Disposed - Dismissed
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
STEPHEN I. GOORVITCH
DOES 1 TO 30
MARKARIAN CHRISTOPHER V. ESQ.
MESAROS CHRISTOPHER P.
KLEIN CARL C. II ESQ.
ROCKWELL EMILY EUGENIA
2/1/2019: Request for Dismissal
1/23/2019: Minute Order
9/4/2018: NOTICE OF HANDLING ATTORNEY CHANGE
6/29/2018: Substitution of Attorney
7/12/2018: NOTICE OF CHANGE OF HANDLING ATTORNEY
10/12/2017: PROOF OF SERVICE OF SUMMONS
10/12/2017: PROOF OF SERVICE OF SUMMONS
11/3/2017: ANSWER TO UNERIFIED COMPLAINT
11/3/2017: DEMAND FOR JURY TRIAL
Request for Dismissal; Filed by Aviv Vered (Defendant); Esther Vered (Defendant)Read MoreRead Less
at 10:00 AM in Department 5, Stephen I. Goorvitch, Presiding; Final Status Conference - Not Held - Taken Off Calendar by CourtRead MoreRead Less
Minute Order ( (Final Status Conference)); Filed by ClerkRead MoreRead Less
Notice of Handling Attorney Change; Filed by Aviv Vered (Defendant); Esther Vered (Defendant)Read MoreRead Less
NOTICE OF HANDLING ATTORNEY CHANGERead MoreRead Less
NOTICE OF CHANGE OF HANDLING ATTORNEYRead MoreRead Less
Notice; Filed by Aviv Vered (Defendant); Esther Vered (Defendant)Read MoreRead Less
Substitution of Attorney; Filed by Isaiah Solorzano (Plaintiff)Read MoreRead Less
Substitution of AttorneyRead MoreRead Less
Demand for Jury Trial; Filed by Aviv Vered (Defendant); Esther Vered (Defendant)Read MoreRead Less
DEMAND FOR JURY TRIALRead MoreRead Less
ANSWER TO UNERIFIED COMPLAINTRead MoreRead Less
Answer; Filed by Aviv Vered (Defendant); Esther Vered (Defendant)Read MoreRead Less
PROOF OF SERVICE OF SUMMONSRead MoreRead Less
Proof-Service/Summons; Filed by Isaiah Solorzano (Plaintiff)Read MoreRead Less
Proof-Service/Summons; Filed by Isaiah Solorzano (Plaintiff)Read MoreRead Less
PROOF OF SERVICE OF SUMMONSRead MoreRead Less
Summons; Filed by Isaiah Solorzano (Plaintiff)Read MoreRead Less
Complaint; Filed by Isaiah Solorzano (Plaintiff)Read MoreRead Less
ComplaintRead MoreRead Less
Case Number: BC671387 Hearing Date: March 05, 2020 Dept: 56
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
ROBERT HERMAN VOGEL, et al.,
CASE NO.: BC671384
[TENTATIVE] ORDER RE: MOTION TO COMPEL COMPLIANCE WITH DEPOSITION SUBPOENA TO CUSTODIAN OF RECORDS FOR SAINT MARY HOSPTIAL; REQUEST FOR CONTEMPT AND MONETARY SANCTIONS
Date: March 5, 2020
Time: 8:30 a.m.
FSC: May 26, 2020
Jury Trial: June 8, 2020
MOVING PARTY: Defendant Estate of Robert Herman Vogel (“Moving Defendant”)
RESPONDING PARTY: Plaintiff Carole Siegel
The Court has considered the moving, opposition, and reply papers.
Plaintiff’s complaint arises from an alleged slip-and-fall on Defendant Robert Vogel’s property which occurred on August 21, 2015. Plaintiff filed a complaint alleging causes of action for: (1) premises liability; and (2) negligence. Plaintiff alleges that she suffered wage loss, hospital and medical expenses, general damage, and loss of earning capacity.
On June 5, 2019, Moving Defendant served a deposition subpoena for the production of business records to the Custodian of Records (“COR”) for Saint Mary Hospital (“SMH”). (Pham Decl. ¶ 5 and Exhibit B.) The deposition subpoena for production of business records seeks “[a]ny and all employment records, including by not limited to earnings, profits, commissions, bonuses, business income, salary, payroll, attendance, health records, workers’ compensation claims, medical information, disability/injury claims, records and payments, employment applications, job performance evaluations, date of hire, date and reason for termination, personnel records, and records related to employment or employee benefits, excluding W2’s and/or 1099’s relating to” Plaintiff. (Id. at Exhibit B.) According to the declaration of Moving Defendant’s counsel, Cindy Pham (“Pham”), on June 20, 2019, Plaintiff served her objection to the subpoena upon Defendant, ABI Document Support Services and SMH. (Id. at ¶ 8 and Exhibit C.) SMH failed to produce any documents in response to the deposition subpoena. (Id. at ¶ 12.)
The Instant Motion
On November 6, 2019, Moving Defendant filed a motion for an order compelling the production of documents by the Custodian of Records (“COR”) for Saint Mary Hospital (“SMH”) pursuant to the deposition subpoena personally served on the COR on June 5, 2019, and within 15 days. Moving Defendant asserts that: (1) it has complied with all procedural requirements; (2) Plaintiff’s employment records are relevant to the determination of damages in this action; (3) Plaintiff has waived her privacy rights as to the employment records by filing this lawsuit; and (4) contempt and monetary sanctions should be awarded against SMH and its COR.
Moving Defendant seeks contempt and monetary sanctions in the amount of $1,200.00 against SMH and its COR for willful misuse of the discovery process including unreasonable refusal to comply with the deposition subpoena by failing to produce the subpoenaed records, as well as necessitating the filing of the instant motion by Moving Defendant.
Plaintiff opposes Moving Defendant’s motion on the grounds that: (1) Moving Defendant’s motion is untimely and the Court is without jurisdiction to grant it; (2) Moving Defendant’s motion infringes on Plaintiff’s right to privacy and should be denied regardless of its procedural deficiencies; (3) Moving Defendant has failed to show good cause; (4) monetary sanctions should be awarded against Moving Defendant and its counsel; (5) Moving Defendant’s motion is an improper motion for reconsideration; and (6) the COR for SMH was not served with the deposition subpoena and as such Moving Defendant is in violation of California Rules of Court, Rule 8.817.
California Rules of Court, Rule 8.817(a)(1) says that “[b]efore filing any document, a party must serve, by any method permitted by the Code of Civil Procedure, one copy of the document on the attorney for each party separately represented, on each unrepresented party, and on any other person or entity when required by statute or rule.” California Rules of Court, Rule 8.817(b) says that “[t]he party must attach to the document presented for filing a proof of service showing service on each person or entity required to be served under (1). The proof must name each party represented by each attorney served.”
Plaintiff’s argument that the COR for SMH was not ever served with Moving Defendant’s deposition subpoena is incorrect. There is a proof of service lodged in connection with Moving Defendant’s moving and reply papers that indicates that the deposition subpoena was served on the COR for SMH. (Pham Decl. at Exhibit H; Pham Reply Decl. at Exhibit I.) Also, Plaintiff’s argument that the instant motion was never served on SMH is incorrect. Moving Defendant has provided a proof of service indicating that SMH was served with Moving Defendant’s motion to compel on November 8, 2019. (Pham Reply Decl. at Exhibit J.)
The Court also rejects Plaintiff’s argument that Moving Defendant’s motion is an improper motion for reconsideration. The Court denied Moving Defendant’s prior motion to compel the production of documents by the COR for SMH pursuant to the deposition subpoena without prejudice. Thus, Moving Defendant’s instant motion is not improper.
California Code of Civil Procedure, Section 1987.1 says that “[i]f 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 . . . may make an order . . . directing compliance with it upon those terms or conditions as the court shall declare.” California Code of Civil Procedure, Section 2025.480(a) says that “[i]f a deponent fails to answer any question or to produce any document . . . or other 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.” “This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a matter and confer declaration under Section 2016.040.” (Code Civ. Proc. § 2025.480(b).) California Code of Civil Procedure, Section 2025.440(b) says that “[i]f a deponent whom a deposition subpoena has been served fails to attend a deposition or refuses to be sworn as a witness, the court may impose on the deponent the sanctions described in Section 2020.240.” California Code of Civil Procedure, Section 128(a)(4) says that every court has the power “[t]o compel obedience to its judgments, orders, and process, and to the orders of a judge out of court, in an action or proceeding pending therein.”
Issue No.1: Timeliness
Plaintiff contends that Moving Defendant’s motion is procedurally deficient because it was required to bring a motion to compel within 60 days of service of Plaintiff’s objection.
California Code of Civil Procedure, Section 2020.010(a) says that “the following methods may be used to obtain discovery within the state from a person who is not a party to the action in which the discovery is sought” and these methods include: (1) an oral deposition; (2) a written deposition; or (3) a deposition for production of business records and things. California Code of Civil Procedure, Section 2020.010(b) says that “the process by which a nonparty is required to provide discovery is a deposition subpoena.” “[F]or a business record subpoena . . . the 60-day period during which a motion to compel must be filed, begins to run when the deponent serves objections on the party. At the time the objections are served, the record of deposition is complete.” (Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1192.) “[T]he Act contemplates that discovery conducted by way of a business records subpoena is a deposition.” (Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 131.) Objections served in response to a business records subpoena constitutes “a record of a deposition.” (Id. at 136.) A deadline in connection with a motion to compel is mandatory. (Id.)
Here, under Rutledge, SMH did not serve objections to the deposition subpoena for the production of business records. Thus, the 60-day time limit was not triggered. Plaintiff was not the deponent for purposes of Moving Defendant’s deposition subpoena for production of business records to SMH. Thus, despite Plaintiff’s argument to the contrary, Plaintiff’s objections to the deposition subpoena which were served on June 20, 2019 does not begin the running of the 60-day time limit of Moving Defendant to bring a motion to compel. (Pham Decl. at ¶ 8.)
Therefore, the Court finds that Moving Defendant’s motion is timely.
Issue No. 2: The Good Cause Requirement
“Civil discovery, unlike discovery in criminal cases, is governed by statute.” (Mead Reinsurance Co. v. Superior Court (1986) 188 Cal.App.3d 313, 320.) “[A] showing of good cause is statutorily required to compel production in civil cases even with respect to nonconfidential matter.” (Id.) “In law and motion practice, factual evidence is supplied to the court by way of declarations.” (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224.) “Although the scope of civil discovery is broad, it is not limitless.” (Id.) “[M]atters are subject to discovery if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Id.) “The burden rests upon the party seeking the discovery to provide evidence from which the court may determine these conditions are met.” (Id.) The good cause requirement necessitates the party “set forth specific facts showing good cause justifying the discovery sought.” (Id.)
Moving Defendant seeks that the COR for SMH produce the documents requested in Moving Defendant’s deposition subpoena with respect to Plaintiff’s employment records. The deposition subpoena for production of business records seeks “[a]ny and all employment records [of Plaintiff], including but not limited to earnings, profits, commissions, bonuses, business income, salary, payroll, attendance, health records” and other categories of records from the COR for SMH. (Pham Decl. at Exhibit B.) Moreover, the complaint alleges that Plaintiff has suffered: (1) wage loss; (2) hospital and medical expenses; and (3) loss of earning capacity.
The declaration of Moving Defendant’s counsel warrants a finding of good cause. Pham’s declaration relevantly declares that Plaintiff claims she has suffered and continues to suffer wage loss, hospital and medical expenses, general damage, and loss of earning capacity. (Pham Decl. at ¶ 4.) Thus, the Court finds that good cause exists for the production of Plaintiff’s employment records as her complaint alleges loss of earning capacity and wage loss.
Issue No. 3: Relevancy and the Right of Privacy
California Code of Civil Procedure, Section 2017.010 says that “[a]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” “For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement.” (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.) “Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence.” (Id.) “These rules are applied liberally in favor of discovery.” (Id.) “[W]hen evidence sought to be discovered impacts on a person’s constitutional right to privacy . . . limited protections come into play for that person.” (Shaffer v. Superior Court (1995) 33 Cal.App.4th 993, 999.) “In ruling on discovery motions, the court must balance competing rights—the right of the litigant to discover relevant facts and the right of an individual to maintain reasonable privacy.” (Id.)
“[A]n implicit waiver of a party’s constitutional rights encompasses only discovery directly relevant to the plaintiff’s claim and essential to the fair resolution of the lawsuit.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 842.) “On occasion . . . privacy interests may give way to [an] opponent’s right to a fair trial.” (Id.) “[C]ourts must balance the right of civil litigants to discover relevant facts against the privacy interests of persons subject to discovery.” (Id.) A plaintiff “cannot be allowed to make . . . very serious allegations without affording defendants an opportunity to put their truth to the test.” (Id.) There is a “historically important state interest of facilitating the ascertainment of truth in connection with legal proceedings.” (El Dorado Savings & Loan Assn. v. Superior Court (1987) 190 Cal.App.3d 342, 345.) Even when discovery of private information is found directly relevant to the issues of ongoing litigation, it will not be automatically allowed; there must be a careful balancing of the compelling public need for discovery against the fundamental right of privacy.” (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1014.) “The scope of any disclosure must be narrowly circumscribed, drawn with narrow specificity, and must proceed by the least intrusive manner.” (Id.)
The Court finds that Moving Defendant’s deposition subpoena with respect to SMH seeks relevant information. Plaintiff makes a claim for wage loss, general damage, hospital and medical expenses, and loss of earnings. The complaint alleges that plaintiff suffered personal injuries which necessitated medical care and treatment. Plaintiff’s discovery responses indicate that: (1) she lost income and earning capacity as a result of the incident (Pham Decl. at Exhibit A); (2) at the time of the incident that gave rise to the complaint, she was an acute care nurse and her work involves light lifting and prolonged computer typing (Id.); (3) at the time of the incident that gave rise to the complaint, her monthly income was $7,073.53; (4) she returned to work on August 29, 2016 (Id.); (5) she lost approximately $93,600.00 due to the incident that gave rise to her complaint. (Id.); and (6) she works in hospitals as part of a team that provides the most clinically appropriate care for patients. (Id.) Plaintiff also indicated that SMH was one of the facilities where she has worked in the past five years. (Pham Decl. at ¶ 6 and Exhibit A.) Thus, most of the records—except those indicated below—sought pursuant to the deposition subpoena propounded on SMH are clearly relevant to Plaintiff’s claim for personal injuries, lost wages, hospital and medical expenses, and loss of earning capacity.
The Court also finds that Plaintiff has waived her privacy interests implicitly under Vinson. Plaintiff filed the claims for wage loss, damage, loss of earning capacity, and personal injuries via her complaint. Thus, Moving Defendant should be allowed to inquire into the basis for such claims via her employment records from SMH. The Court finds, however, that employment records specifically for Plaintiff’s: (1) attendance; (2) job performance evaluations; (3) reason for termination; and (4) personnel records under the balancing pursuant to Davis should not be disclosed pursuant to the deposition subpoena. The Court finds that such records are not directly relevant to the claims in the complaint as they do not go to lost earnings, lost wages, general damages, or hospital or medical expenses.
To the extent that Plaintiff is asserting that her social security number is subject to a privacy right under Smith because it is irrelevant, the Court finds that her social security number is irrelevant to the subject matter of this action. (Smith v. Superior Court (1961) 189 Cal.App.2d 6, 13.) Given that her social security number is irrelevant to this action, the Court orders under Davis that Plaintiff’s social security number be redacted from all production of documents.
Thus, the Court GRANTS Moving Defendant’s motion to compel the production of documents by the COR for SMH pursuant to the deposition subpoena personally served in the COR on June 5, 2019 subject to the following conditions: (1) that Plaintiff’s attendance, job performance evaluations, reason for termination, and personnel records are exempt from disclosure; and (2) Plaintiff’s social security number be redacted on produced documents.
Issue No. 4: Contempt and Monetary Sanctions
Moving Defendant requests contempt and monetary sanctions against SMH and its COR in the amount of $1,200.00.
California Code of Civil Procedure, Section 2025.480(j) says that “[t]he court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessful makes or opposes a motion to compel an answer or production, 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.” California Code of Civil Procedure, Section 1987.2(a) says that “in making an order pursuant to a motion made under subdivision (c) of Section 1987 or under Section 1987.1, the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” California Code of Civil Procedure, Section 2020.240 says that “[a] deponent who disobeys a deposition subpoena in any manner . . . may be punished for contempt . . . without the necessity of a prior order of court directing compliance by the witness. The deponent is also subject the forfeiture and the payment of damages set forth in Section 1992.” “A person failing to appear pursuant to a subpoena or a court order also forfeits to the party aggrieved the sum of five hundred dollars ($500), and all damages that he or she may sustain by the failure of the person to appear pursuant to the subpoena or court order, which forfeiture and damages may be recovered in a civil action.” California Code of Civil Procedure, Section 2023.010(d) states that misuses of the discovery process includes “[f]ailing to respond or submit to an authorized method of discovery.”
Pham declares that: (1) her time in this matter is billed to Defendants at $160.00 per hour (Pham Decl. at ¶ 18); (2) she spent 4.5 hours preparing motion (Id.); (3) anticipates spending 3 hours appearing for the hearing on the motion (Id.); and (4) her total activity in connection with the motion is $1,200.00. (Id.)
Despite Moving Defendant’s argument to the contrary, Section 2020.220(c) of the California Code of Civil Procedure does not authorize punishment for contempt for a deponent who disobeys a proper deposition subpoena. In fact, California Code of Civil Procedure, Section 2020.220 does not even mention the word contempt or sanctions. While Moving Defendant has a basis for sanctions against Plaintiff and/or Plaintiff’s counsel, Moving Defendant did not request such sanctions in its moving papers or notice of motion and imposing such sanctions against Plaintiff and/or Plaintiff’s counsel without an explicit request by Moving Defendant to do so would be improper. The Court exercises its discretion under California Code of Civil Procedure, Section 2020.240 and declines Moving Defendant’s request to punish SMH and its COR for contempt. Moving Defendant provides no legal authority standing for the proposition that monetary sanctions can be imposed against a non-party deponent and its custodian of records. As indicated above, only Plaintiff filed an opposition to Moving Defendant’s motion to compel production.
Therefore, the Court DENIES Moving Defendant’s request for contempt and monetary sanctions against SMH and its COR.
Moving party is ordered to give notice of this ruling.
Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@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.
Dated this 5th day of March 2020
Hon. Holly J. Fujie
Judge of the Superior Court
 Moving Defendant’s counsel is incorrect as this exhibit is Plaintiff’s objection to the deposition subpoena for production of business records on Cedars-Sinai Medical Center/Human Resources and is not in connection with SMH. Plaintiff does not dispute, however, Moving Defendant’s assertion that she objected to the deposition subpoena with respect to SMH.