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Tentative Ruling
Judge Pauline Maxwell
Department 6 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION

Sloane Harrison vs The Vons Companies Inc

Case No: 16CV04683
Hearing Date: Wed Jan 10, 2018 9:30

Nature of Proceedings: Motion: Compel

TENTATIVE RULING:     Defendants’ motion is granted in part and denied in part, without prejudice, as follows:

1. Dr. Paul Crawford is ordered to produce the categories of documents set forth in the subpoena duces tecum, as re-written by the court. Dr. Crawford is also ordered to appear for a second session of his deposition, to be held within ten days, or on a date agreed to by the parties.

2. Defendants’ motion for order requiring plaintiff to withdraw her objections to the subpoena duces tecum issued to plaintiff’s automobile insurer, Ameriprise Insurance Company, is denied without prejudice as Ameriprise has never been served with a document subpoena.

3. Defendants’ motion for order continuing the trial and mandatory settlement conference dates is granted. The trial is ordered continued sixty days, to May 16, 2018, and the mandatory settlement conference date is ordered continued sixty days, to April 20, 2018. All discovery cut-off dates, expert witness disclosure dates, and law and motion cut-off dates shall coincide with the new trial date.

4. Defendants’ motion for order setting the deposition fee to be paid to Dr. Crawford at $250.00 per hour is denied without prejudice as there is no evidence that the parties met and conferred in an attempt to resolve the fee dispute.

 

BACKGROUND:

This is an action for personal injuries arising out of a motor vehicle collision on May 19, 2016 on the northbound lanes of U.S. Highway 101, near the Fairview Avenue off ramp in the City of Goleta. According to the allegations, plaintiff Sloane Harrison was a passenger in a 2006 Lexus driven by her son, Frank Tribble, when their vehicle was struck from behind by a tractor/trailer driven by defendant Raymond Fuller. The tractor/trailer was owned by defendant The Vons Companies, Inc. The impact caused plaintiff to strike her forehead on the dashboard of the Lexus. On October 18, 2016, plaintiff filed her complaint, alleging causes of action against defendants for (1) motor vehicle liability, (2) general negligence, and (3) negligence per se (violation of Vehicle Code Section 22350 – The Basic Speed Law).

Plaintiff required dental work as a result of the collision, including multiple porcelain crowns that cost $5,000.00 each. Paul Crawford, DDS, is plaintiff’s treating dentist. Dr. Crawford also employs plaintiff as a dental assistant and office manager. Plaintiff contends that she will require additional dental care, costing thousands of dollars, as a result of the collision. Defendants now move for an order (1) compelling Dr. Crawford to comply with the subpoena duces tecum requiring the production of documents at his December 22, 2017 deposition, and for a further deposition of the witness, (2) compelling plaintiff to withdraw objections to defendants’ subpoenas to plaintiff’s automobile insurers, Allstate and Ameriprise, (3) continuing the trial date 90-120 days, and (4) setting witness fees for Dr. Crawford’s December 22, 2017 deposition and for his continued deposition. Plaintiff opposes defendants’ motion.

ANALYSIS:

Defendants initially move for an order compelling Dr. Crawford to comply with a subpoena duces tecum, requiring him to produce documents at his December 22, 2017 deposition relating to his care of plaintiff and to the dental software program that was in use in his office at the time of the events in this case. The deposition subpoena specifies thirteen (13) categories of documents to be produced, mostly relating to the computer software program used by Dr. Crawford to manage patient treatment, billing, and payment records. (Defendants’ Ex Parte Application, Thomas Dec., ¶10, Ex. B, Deposition Subpoena for Personal Appearance and Production of Documents.) At his deposition on December 22, 2017, Dr. Crawford produced only a one-page information sheet, which identified his dental software program as “MacPractice DDS Version 5.1.” (Thomas Dec., ¶6, Ex. A.) Defendants also move for an order requiring Dr. Crawford to attend a second session of his deposition to answer questions that he failed to answer during the initial session of his deposition.

The deposition subpoena served on Dr. Crawford requests production of the following documents (the categories have been re-phrased by the court):

1. The entire dental chart reflecting the care and treatment provided to plaintiff.

2. All documents identifying the computer software program presently used by the deponent to manage patient treatment records.

3. All documents identifying the computer software program presently used by the deponent to manage patient billing records.

4. All documents identifying the computer software program presently used by the deponent to manage patient payment records.

5. All documents identifying the computer software program presently used by the deponent to manage patient treatment plans.

6. All documents that memorialize the purchase of any computer software program currently used by the deponent.

7. All documents identifying the computer software program in use by the deponent on May 19, 2016 to manage patient treatment records.

8. All documents identifying the computer software program in use by the deponent on May 19, 2016 to manage patient billing records.

9. All documents identifying the computer software program in use by the deponent on May 19, 2016 to manage patient payment records.

10. All documents identifying the computer software program in use by the deponent on May 19, 2016 to manage patient treatment plans.

11. All documents that memorialize the purchase of any computer software program used by the deponent as of May 19, 2016.

12. All documents relating to any communications between the deponent and plaintiff’s counsel from May 19, 2016 through December 22, 2017.

13. All documents relating to any communications between anyone in the deponent’s office (other than plaintiff) and plaintiff’s counsel from May 19, 2016 through December 22, 2017.

(Defendants’ Ex Parte Application, Thomas Dec., ¶10, Ex. B, Deposition Subpoena for Personal Appearance and Production of Documents.)

Dr. Crawford objected to the deposition subpoena as overly burdensome, claiming that it would require “thousands of hours” to compile the information sought. (Thomas Dec., ¶6, Ex. F-1.) However, defendants argue that information relating to Dr. Crawford’s software program is essential to determining whether the prices he charged plaintiff for her ceramic crowns (procedure code D2740) were the same as for other patients during the same time period. (Thomas Dec., ¶7, Ex. E, Billing Statement, dated 3/29/17.) The court agrees that the requested information is relevant and discoverable and will order Dr. Crawford to produce the categories of materials, as re-written above, at his resumed deposition, to be held within ten days, or on a date agreed to by the parties. Plaintiff’s dental chart is clearly relevant to her claim for damages. Also, defendants are entitled to information regarding Dr. Crawford’s software program so that their experts can determine whether the procedure codes and costs appearing on plaintiff’s billing statement are consistent with the program. Finally, any communications between Dr. Crawford’s office (other than communications to and from plaintiff) and plaintiff’s counsel are not privileged and are discoverable.

Defendants next move for an order requiring plaintiff to withdraw her objections to defendants’ subpoenas duces tecum issued to plaintiff’s automobile insurers, Allstate Insurance Company and Ameriprise Insurance Company. Code of Civil Procedure Section 2017.210 provides that “[any] party may obtain discovery of the existence and contents of any agreement under which any insurance carrier may be liable to satisfy in whole or in part a judgment that may be entered in the action . . . .” See also, Irvington Moore, Inc. v. Superior Court (1993) 14 Cal.App.4th 733, 739 (granting plaintiff’s motion to compel production of defendants’ insurance policies). In addition, Code of Civil Procedure Section 2017.010 provides that “any 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.”

In the traffic collision report and her initial discovery responses, plaintiff identified her automobile insurer as Allstate Insurance Company and on September 28, 2017, defendants issued a subpoena duces tecum to Allstate requesting production of its entire claim file relating to the subject accident. (Defendants’ Ex Parte Application, Thomas Dec., ¶5, Ex. C, Deposition Subpoena for Production of Business Records issued to Allstate Insurance Company.) Plaintiff objected to the subpoena on privacy grounds. (Ibid.) It was later determined that the Allstate policy had lapsed two months prior to the accident and that plaintiff was actually insured with Ameriprise Insurance Company. (Thomas Dec., ¶7, Ex. B.) However, defendants have never issued a subpoena to Ameriprise and therefore there are no objections to the subpoena for the court to consider. Because the court can only decide actual, justiciable controversies, not potential or theoretical controversies, defendants’ motion for order requiring plaintiff to withdraw her objections to the Ameriprise subpoena will be denied without prejudice to being renewed at a later date, should that become necessary. In general, the court agrees with defendants that any statements contained in Ameriprise’s current claim file that were made by plaintiff or her son, Mr. Tribble, concerning the circumstances of the accident, whether plaintiff was wearing a seat belt at the time of the collision, and the extent of property damage sustained by their vehicle would be discoverable. Such statements are not private or privileged.

Defendants next move for a 90-120 day continuance of the current trial date to allow discovery to be completed. This matter was originally set for trial on October 4, 2017, but was continued 120 days to March 14, 2018 by order of the court following an ex parte application by defendants. (Order Continuing Trial Date, dated 8-4-17.) Under California Rules of Court, Rule 3.1332, subdivision (c), a court may grant a continuance at any time before or during trial upon a showing of good cause, such as where a party has been unable “to obtain essential testimony, documents, or other material evidence despite diligent efforts.” Defendants contend that the delays in completing Dr. Crawford’s deposition and in obtaining information from plaintiff’s automobile insurer necessitate a continuance of at least three to four months.

The court will grant a limited continuance of the trial date, to May 16, 2018 (sixty days), to permit defendants to obtain additional discovery from Dr. Crawford and plaintiff’s current claims insurer, as well as to complete any other discovery. The mandatory settlement conference date is ordered continued from February 16, 2018 to April 20, 2018. All discovery cut-off dates, expert witness disclosure dates, and law and motion cut-off dates shall coincide with the new trial date.

Lastly, defendants move for an order setting the deposition fee to be paid to Dr. Crawford at $250.00 per hour, both for his December 22, 2017 deposition and his further deposition. Dr. Crawford has demanded a fee of $1,000.00 per hour. (Thomas Dec., ¶9, Ex. C, Deposition Transcript of Paul Crawford, DDS, p. 58:5-59:1.) Code of Civil Procedure Section 2034.430 sets the fees for expert witnesses, including a treating physician or other health care practitioner, who is asked during a deposition to express an opinion concerning the past or present diagnosis or prognosis of a patient, at the deponent’s reasonable and customary hourly rate. If a party desiring to take the deposition of the medical expert deems the expert’s hourly rate to be unreasonable, the party may move for an order setting the compensation of the expert. Code Civ. Proc. §2034.470, subd. (a). Any motion for order setting the compensation of an expert “shall be accompanied by a meet and confer declaration.” Code Civ. Proc. §2034.470, subd. (b). During the meet and confer process, the medical expert shall provide to the party noticing the deposition:

(1) Proof of the ordinary and customary fee actually charged and received by that expert for similar services provided outside the subject litigation;

(2) The total number of times the presently demanded fee has ever been charged and received by that expert; and

(3) The frequency and regularity with which the presently demanded fee has been charged and received by that expert within the two-year period preceding the hearing on the motion.

(Ibid.)

Here, a dispute arose during the deposition of Dr. Crawford on December 22, 2017 as to the proper amount of fees that he should be paid. Dr. Crawford stated that his fee was $1,000.00 per hour and defendants offered $250.00, which was rejected by Dr. Crawford. (Thomas Dec., ¶9, Ex. C, Deposition Transcript of Paul Crawford, DDS, p. 58:5-59:1.) Defendants now move for an order setting Dr. Crawford’s fees at $250.00 per hour. The motion, however, was not accompanied by a meet and confer declaration, showing that defendants’ counsel and plaintiff’s counsel met in a reasonable and good faith attempt at an informal resolution of the fee dispute. Defendants’ motion will therefore be denied. The motion is denied without prejudice should counsel for both sides meet and confer and not be able to resolve the dispute.

 
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