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John P. Sciacca, SBN 265049
Taylor J. Turville, SBN 319877
POWERS MILLER
A Professional Corporation
3500 Douglas Blvd, Suite 100
Roseville, California 95661
Telephone No. (916) 924-7900
Telecopier No. (916) 924-7980
Attorneys for Defendant,
KAN MORGAN
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
ELIZABETH MARY POPE, BY AND Case No. 19CV349134
THROUGH HER GUARDIAN AD LITEM,
CLIVEDEN CHEW HAAS, MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
Plaintiff£(s), MOTION TO COMPEL COMPLIANCE
‘ WITH SUBPOENA
vs.
KAN MORGAN AND DOES 1-50
Defendants.
Defendant KAN MORGAN respectfully submit the following points
and authorities in support of his motion to compel the production
of records from KAISER PERMANENTE HOSPITAL, REDWOOD CITY (“KAISER”)
in compliance with the subpoena served.
i. STATEMENT OF FACTS
This case arises out of an automobile collision that occurred
on December 28, 2018 in Milpitas, California and the resulting
personal injuries and damages claimed by Plaintiff. (Declaration of
Taylor J. Turville 93; hereinafter “TJT Dec.”).
On September 10, 2019, Plaintiff ELIZABETH MARY POPE responded
to Defendant KAN MORGANS’ Form Interrogatories, Set One and Special
Interrogatories, Set One. (TUT Dec. 44; Exhibit A attached
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPELoD wm ND
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POWERS & MILLER
A Professional Corporation
thereto). Specifically, Plaintiff ELIZABETH MARY POPE alleged to
have sustained injuries to her skull, scalp and brain matter
causing negative long-term effects to her mental capacity and
competence as a result of the incident. (Ibid.).
Plaintiff ELIZABETH MARY POPE sought treatment at KAISER for
her injuries and alleged that her providers at Kaiser Permanente
informed her that she was “now at an increased risk of seizures due
to the head injury.” (Ibid.). In her responses to the 10 series of
Form Interrogatories, Plaintiff ELIZABETH MARY POPE alleged that
her neurosurgeon, Dr. Allen Efron of KAISER, informed her that she
“hit her head in the worst place possible, where the skull had been
opened previously during meningioma surgery years before” and that
the prior surgeries resulted in a seizure disorder. (Ibid.).
Further, Plaintiff ELIZABETH MARY POPE identified KAISER as her
healthcare provider for the ten years prior to the incident.
(Ibid.).
On February 4, 2020, defense counsel caused a subpoena to be
served on KAISER located at 620 Galveston Drive, Redwood City, CA
94063. (TUT Dec. 46; Exhibit B attached thereto). That subpoena
requested the medical records of Plaintiff ELIZABETH MARY POPE from
January 1, 1995 to present and further described the records to
include:
All documents and records stored in any format
or method including, but not limited to, all
office, emergency room, inpatient and
outpatient charts and records, lien files,
SOAP notes, pathology records and reports, lab
reports, pharmacy and prescription records,
physical therapy records, sign-in sheets, all
descriptions of exercises prescribed,
documentation which indicate date and time of
patient’s appointments, insurance documents,
all radiology reports and readings, and any
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL,POWERS & MILLER
A Professional Corporation
other documents maintained pertaining to the
care, treatment and examination for the
patient. (Exhibit B).
These records are considered to be highly relevant to the
present action due to Plaintiff ELIZABETH MARY POPE’s prior
complaints of injuries to the same part of her body claimed to have
been injured in the subject incident. (TJT Dec. 48). By the terms
of the subpoena, KAISER was required to produce these documents on
March 3, 2020 at 9:00 a.m. to defendant’s copy service, Compex
Legal Services at 325 Maple Avenue, Torrance, California 90503.
(Exhibit B). While KAISER produced Plaintiff ELIZABETH MARY POPE’S
records on or about February 26, 2020, that production was limited
to treatment from February 20, 2010 to February 20, 2020. (TJT Dec.
9; Exhibit B).
To date, KAISER has failed to comply with the terms of the
subpoena. (TJT Dec. 10).
II. LEGAL ARGUMENT
A. A MOTION TO COMPEL IS PROPER
Pursuant to the language on the deposition subpoena,
“disobedience of this subpoena may be punished as contempt by this
court.” It is the subpoenaing party's obligation to seek a court
order if it wishes to compel compliance with the subpoena.
(Unzipped Apparel LLC v. Bader (2007) 156 Cal.App.4th 123.) Such a
request for an order compelling response is being done herein.
B. KAISER SHOULD BE COMPELLED TO COMPLY WITH DEFENDANT’ S
LAWFUL SUBPOENA
California Code of Civil Procedure § 1987.1(a) provides in
relevant part:
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPELoo wm KN
POWERS & MILLER
A Professional Corporation
If a subpoena requires the attendance of a
witness or the production of books, documents,
electronically stored information, or other
things ... at the taking of a deposition, the
court, upon motion reasonably made by any
person described in subdivision (b) ... may
take an order ... directing compliance with it
upon those terms or conditions as the court
shall declare -
In the instant case, Defendant’s counsel caused to be served
upon KAISER a lawful subpoena requesting production of highly
relevant and non-privileged records. Pursuant to the subpoena,
production was to be made no later than March 3, 2020. While KAISER
produced Plaintiff ELIZABETH MARY POPE’S records on or about
February 26, 2020, that production was limited to treatment from
February 20, 2010 to February 20, 2020. Accordingly, KAISER failed
to comply with defendant’s subpoena request. As of the date of this
motion, KAISER has still not produced the documents sought via
subpoena, nor has it provided the grounds for its refusal to
comply.
Cc. A REQUEST FOR SANCTIONS IS PROPER
Pursuant to Unzipped Apparel LLC v. Bader, (2007), Supra 156
, “[i]n civil litigation, discovery may be obtained from a nonparty
only through a “deposition subpoena.” (See C.C.P. § 2020.010 subd.
(b).) The Civil Discovery Act authorizes a nonparty’s “oral
deposition,” “written deposition,” and “deposition for [the]
production of business records” (C.C.P. § 2020.010, subd.
(a) (1)-(3)7 C.C.P. § 2020.410.)
Code of Civil Procedure § 2023.010 provides in pertinent part:
Misuse of the discovery process include, but
are not limited to, the following:
eK
(d) Failure to respond or to submit to an
authorized method of discovery.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL13
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POWERS & MILLER
A Professional Corporation
Code of Civil Procedure § 2030.030 provides in pertinent part:
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 the opportunity for
hearing, may impose the following sanctions
against anyone engaging in conduct that is a
misuse of the discovery process:
kK
(a) The court may impose a monetary sanction
ordering that one engaging in the misuse
of the discovery process, or any attorney
advising that conduct, or both pay the
reasonable expenses, including attorney’s
fees, incurred by anyone as a result of
that conduct . . . . If a monetary
sanction is authorized by any provision
of this title, the court shall impose
that sanction 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.
On the basis of Code of Civil Procedure § 2023.010 et seq.,
sanctions in the amount of $817.50 requested in the following
declaration of Taylor J. Turville are proper.
III. CONCLUSION
For the foregoing reasons, Defendant respectfully requests
that the Court grant its motion to compel the requested documents
sought pursuant to subpoena served on KAISER and for an award of
sanctions in the amount of $817.50 for its failure to comply with
a lawful subpoena.
DATED: June 22, 2020 POWERS MILLER
we Taye oll
Tayloy/J. Turville
Attorrfey for Defendant
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL
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ot A 12 13 John P. Sciacca, SBN 265049 Taylor J. Turville, SBN 319877 POWERS MILLER A Professional Corporation 3500 Douglas Blvd, Suite 100 Roseville, California 95661 Telephone No. (916) 924-7900 Telecopier No. (916) 924-7980 Attorneys for Defendant, KAN MORGAN SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA ELIZABETH MARY POPE, BY AND Case No. 19CV349134 THROUGH HER GUARDIAN AD LITEM, CLIVEDEN CHEW HAAS, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF Plaintiff£(s), MOTION TO COMPEL COMPLIANCE ‘ WITH SUBPOENA vs. KAN MORGAN AND DOES 1-50 Defendants. Defendant KAN MORGAN respectfully submit the following points and authorities in support of his motion to compel the production of records from KAISER PERMANENTE HOSPITAL, REDWOOD CITY (“KAISER”) in compliance with the subpoena served. i. STATEMENT OF FACTS This case arises out of an automobile collision that occurred on December 28, 2018 in Milpitas, California and the resulting personal injuries and damages claimed by Plaintiff. (Declaration of Taylor J. Turville 93; hereinafter “TJT Dec.”). On September 10, 2019, Plaintiff ELIZABETH MARY POPE responded to Defendant KAN MORGANS’ Form Interrogatories, Set One and Special Interrogatories, Set One. (TUT Dec. 44; Exhibit A attached 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPELoD wm ND 15 16 POWERS & MILLER A Professional Corporation thereto). Specifically, Plaintiff ELIZABETH MARY POPE alleged to have sustained injuries to her skull, scalp and brain matter causing negative long-term effects to her mental capacity and competence as a result of the incident. (Ibid.). Plaintiff ELIZABETH MARY POPE sought treatment at KAISER for her injuries and alleged that her providers at Kaiser Permanente informed her that she was “now at an increased risk of seizures due to the head injury.” (Ibid.). In her responses to the 10 series of Form Interrogatories, Plaintiff ELIZABETH MARY POPE alleged that her neurosurgeon, Dr. Allen Efron of KAISER, informed her that she “hit her head in the worst place possible, where the skull had been opened previously during meningioma surgery years before” and that the prior surgeries resulted in a seizure disorder. (Ibid.). Further, Plaintiff ELIZABETH MARY POPE identified KAISER as her healthcare provider for the ten years prior to the incident. (Ibid.). On February 4, 2020, defense counsel caused a subpoena to be served on KAISER located at 620 Galveston Drive, Redwood City, CA 94063. (TUT Dec. 46; Exhibit B attached thereto). That subpoena requested the medical records of Plaintiff ELIZABETH MARY POPE from January 1, 1995 to present and further described the records to include: All documents and records stored in any format or method including, but not limited to, all office, emergency room, inpatient and outpatient charts and records, lien files, SOAP notes, pathology records and reports, lab reports, pharmacy and prescription records, physical therapy records, sign-in sheets, all descriptions of exercises prescribed, documentation which indicate date and time of patient’s appointments, insurance documents, all radiology reports and readings, and any 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL,POWERS & MILLER A Professional Corporation other documents maintained pertaining to the care, treatment and examination for the patient. (Exhibit B). These records are considered to be highly relevant to the present action due to Plaintiff ELIZABETH MARY POPE’s prior complaints of injuries to the same part of her body claimed to have been injured in the subject incident. (TJT Dec. 48). By the terms of the subpoena, KAISER was required to produce these documents on March 3, 2020 at 9:00 a.m. to defendant’s copy service, Compex Legal Services at 325 Maple Avenue, Torrance, California 90503. (Exhibit B). While KAISER produced Plaintiff ELIZABETH MARY POPE’S records on or about February 26, 2020, that production was limited to treatment from February 20, 2010 to February 20, 2020. (TJT Dec. 9; Exhibit B). To date, KAISER has failed to comply with the terms of the subpoena. (TJT Dec. 10). II. LEGAL ARGUMENT A. A MOTION TO COMPEL IS PROPER Pursuant to the language on the deposition subpoena, “disobedience of this subpoena may be punished as contempt by this court.” It is the subpoenaing party's obligation to seek a court order if it wishes to compel compliance with the subpoena. (Unzipped Apparel LLC v. Bader (2007) 156 Cal.App.4th 123.) Such a request for an order compelling response is being done herein. B. KAISER SHOULD BE COMPELLED TO COMPLY WITH DEFENDANT’ S LAWFUL SUBPOENA California Code of Civil Procedure § 1987.1(a) provides in relevant part: 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPELoo wm KN POWERS & MILLER A Professional Corporation If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things ... at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b) ... may take an order ... directing compliance with it upon those terms or conditions as the court shall declare - In the instant case, Defendant’s counsel caused to be served upon KAISER a lawful subpoena requesting production of highly relevant and non-privileged records. Pursuant to the subpoena, production was to be made no later than March 3, 2020. While KAISER produced Plaintiff ELIZABETH MARY POPE’S records on or about February 26, 2020, that production was limited to treatment from February 20, 2010 to February 20, 2020. Accordingly, KAISER failed to comply with defendant’s subpoena request. As of the date of this motion, KAISER has still not produced the documents sought via subpoena, nor has it provided the grounds for its refusal to comply. Cc. A REQUEST FOR SANCTIONS IS PROPER Pursuant to Unzipped Apparel LLC v. Bader, (2007), Supra 156 , “[i]n civil litigation, discovery may be obtained from a nonparty only through a “deposition subpoena.” (See C.C.P. § 2020.010 subd. (b).) The Civil Discovery Act authorizes a nonparty’s “oral deposition,” “written deposition,” and “deposition for [the] production of business records” (C.C.P. § 2020.010, subd. (a) (1)-(3)7 C.C.P. § 2020.410.) Code of Civil Procedure § 2023.010 provides in pertinent part: Misuse of the discovery process include, but are not limited to, the following: eK (d) Failure to respond or to submit to an authorized method of discovery. 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL13 14 POWERS & MILLER A Professional Corporation Code of Civil Procedure § 2030.030 provides in pertinent part: 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 the opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process: kK (a) The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct . . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction 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. On the basis of Code of Civil Procedure § 2023.010 et seq., sanctions in the amount of $817.50 requested in the following declaration of Taylor J. Turville are proper. III. CONCLUSION For the foregoing reasons, Defendant respectfully requests that the Court grant its motion to compel the requested documents sought pursuant to subpoena served on KAISER and for an award of sanctions in the amount of $817.50 for its failure to comply with a lawful subpoena. DATED: June 22, 2020 POWERS MILLER we Taye oll Tayloy/J. Turville Attorrfey for Defendant 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL