Gilbert Badillo vs. Daniel John Bonelli

Opposition

Cal. Super. - 4th Dist.September 8, 2017

Ne 0 a N N RA W N BN N N N N N N NN N e m mm o e m o e m mm mm em m d mm je WW NN A Wn a W N = D O 0 a N n lm WwW NN e m s FRANK P. BARBARO, SB# 044417 LYDIA E. BRANDT, SB# 213430 FRANK P. BARBARO & ASSOCIATES ELECTRONICALLY FILED 1111 North Broadway Street Superior Court of California, Santa Ana, California 92701 County of Orange Telephone: 714.835.2122 12/04/2018 at 03:40:00 PM Facsimile: 714.973.4892 Clerk of the Superior Court or Bye Clerk. Deputy Clerk Attorneys for Plaintiff, GILBERT BADILLO SUPERIOR COURT OF CALIFORNIA, COUNTY OF ORANGE CENTRAL JUSTICE CENTER GILBERT BADILLO, LINDA BADILLO Case No. 30-2017-00942453 Plaintiffs, ASSIGNED TO JUDGE FOR ALL PURPOSES: Hon. Geoffrey T. Glass VS. Dept: C31 DANIEL JOHN BONELLI, and DOES 1 PLAINTIFF'S OPPOSITION TO through 25, inclusive, DEFENDANT'S MOTION IN LIMINE NO. 14 TO EXCLUDE ANY REFERENCE TO Defendants. OR EVIDENCE OF PLAINTIFF'S MEDICAL RECORDS, BILLS AND/OR FILMS FROM TIMOTHY NOBLE, D.C./ANAHEIM HILLS CHIROPRACTIC CENTER; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF LYDIA E. BRANDT Trial Date: 12/03/18 (Trailing) Time: 9:00 a.m. Dept.: C31 Complaint filed: 09/08/2017 TO: THE COURT AND ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: Plaintiff GILBERT BADILLO hereby submits his opposition to Defendant’s Motion in Limine No. 14 to Exclude Any Reference to or Evidence of Plaintiff's Medical Records, Bills and/or Films from Timothy Noble, D.C./Anaheim Hills Chiropractic Center. The basis for this opposition is that defendant served defective Deposition Subpoenas for the business records of 1 PItf's Opp to Def's MIL #14 S N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 various health care providers including Dr. Noble as well as other entities. Defendant failed to cure the defects in a timely manner. Therefore, this motion in limine has no merit and should be denied in its entirety. This motion is based on the attached Memorandum of Points and Authorities, Declaration of Lydia E. Brandt, the pleadings and papers filed herein and on any further oral or documentary evidence that may be presented at the time of the hearing on this motion. Dated: December 4, 2018 FRANK P. BARBARO & ASSOCIATES Lh 044 RANK P. BARBARO LYDIA E. BRANDT Attorneys for Plaintiff GILBERT BADILLO Pitf’s Opp to Def’s MIL #14 eo RX N n A W N N O R O N O N O N N O N N O N e m e m em e m mm mm e m em em 0 J & WN E W N em S Y 0 NN S N R W N = MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION On September 8, 2015, Plaintiff GILBERT BADILLO was performing employment- related duties when the vehicle he was driving was negligently rear-ended by Defendant DANIEL JOHN BONELLI ’s vehicle. Defendant has stipulated to fault for causing the collision. The remaining issues are the nature and extent of plaintiff's damages. Plaintiff initially saw his Chiropractor, Timothy Noble, D.C. on the day of the collision for injuries sustained to his neck and back. In July 2018, Defendant issued various deposition subpoenas to Plaintiff's treating health care providers including Dr. Noble, Plaintiff's employer and various other entities for business records as well as treatment records pertaining to Plaintiff prior to and subsequent to the subject collision. Plaintiff's counsel objected in a timely manner, in writing, to the overbroad time frame for which records were sought. Plaintiff's counsel and defense counsel eventually came to an agreement that the time frame for the record production would be January 1, 2010 to July 29, 2016. Defense counsel wrote two letters to plaintiff’s counsel on August 15, 2018 and August 16, 2018, memorializing this agreement and that she would revise the subpoenas accordingly. (See Exhibits “A™ and “B™) Defense counsel never revised the deposition subpoenas as she promised she would do nor did she file a timely motion to enforce said subpoenas despite another objection letter sent to her on August 31. 2018. by plaintiff's counsel. (See Exhibit “C”). Defense counsel simply continued to issue defective deposition subpoenas with dates not agreed to for the production of records to Plaintiff's health care providers and other stated entities. Now, at the 1 1" hour and one day prior to the start of trial on December 3, 2018, defendant seeks to exclude Dr. Noble's medical records, billing records and films because Dr. Noble has not complied with defendant’s defective subpoena. As set forth in this opposition, defendant has omitted significant facts to the Court. For 3 Pitf’s Opp to Def’s MIL #14 oo 0 A n T A W N N O O N O N N R N N N N N e m em mm em t em mm m k m d md e d 0 3 & Wn E W N em D N 0 d N N E W N = all the reasons set forth in this opposition, defendant’s motion in limine should be denied in its entirety. IL DEFENDANT’S MOTION IN LIMINE SHOULD BE DENIED AS DEFECTIVE SUBPOENAS ARE UNENFORCEABLE California Code of Civil Procedure section 1985.3 reads in relevant part: (e) Every copy of the subpoena duces tecum and affidavit. if any, served on a consumer or his or her attorney in accordance with subdivision (b) shall be accompanied by a notice, in a typeface designed to call attention to the notice, indicating that (1) records about the consumer are being sought from the witness named on the subpoena; (2) if the consumer objects to the witness furnishing the records to the party seeking the records, the consumer must file papers with the court or serve a written objection as provided in subdivision (g) prior to the date specified for production on the subpoena; and (3) if the party who is seeking the records will not agree in writing to cancel or limit the subpoena, an attorney should be consulted about the consumer's interest in protecting his or her rights of privacy. If a notice of taking of deposition is also served, that other notice may be set forth in a single document with the notice required by this subdivision. [Emphasis added. ] Any other consumer or nonparty whose personal records are sought by a subpoena duces tecum may, prior to the date of production, serve on the subpoenaing party, the witness, and the deposition officer, a written objection that cites the specific grounds on which production of the personal records should be prohibited. No witness or deposition officer shall be required to produce personal records after receipt of notice that the motion has been brought by a consumer, or after receipt of a written objection from a nonparty consumer, except upon order of the court in which the action is pending or by agreement of the parties, witnesses, and consumers affected. [Cal. Civ. Proc. Code § 1985.3] [Emphasis added.] The party requesting a consumer's personal records may bring a motion under Section 1987.1 to enforce the subpoena within 20 days of service of the written objection. The motion shall be accompanied by a declaration showing a reasonable and good faith attempt at informal resolution of the dispute between the party requesting the personal records and the consumer or the consumer's attorney. [Emphasis added.] Pltf’s Opp to Def’s MIL #14 oo 0 NN N n RA W N N O O N N N N N N N N e m mt e m em m e t m k m d p m e m WW a A Wn E W N = OS Ne N S N R W N e On July 10, 2018, defense counsel issued various Deposition Subpoenas for the business records of plaintiff's health care providers, employer and other entities through ABI Document Support Services. On July 17, 2018, plaintiff's counsel sent defense counsel a written objection as to the time frame for the production request. All deposition officers/custodian of records for the various entities were copied with plaintiff's counsel’s objection letter. Plaintiff's counsel never received a response to her letter from defense counsel. On August 15, 2018, defense counsel and plaintiff's counsel met and conferred and agreed that the time frame for the production of records would be from “January 1, 2010 to July 29, 2016.” Defense counsel faxed two letters to plaintiff's counsel on August 15, 2018 and again on August 16, 2018, memorializing their agreement to the new time frame as well as her promise to revise said subpoenas. (See Exhibits “A” and “B’") Defense counsel never revised the subpoenas as promised. On August 24. 2018, defense counsel served a second set of business record subpoenas to the same deposition officers and/or custodian of records. Although it was expected that the subpoenas were going to reflect the new agreed time frame for the production of records, the subpoenas set forth the following time frame: “Updated Records from 1/1/2010 to present ...." This was not the time frame agreed upon per defense counsel’s previous two letters. On August 31. 2018, plaintiff's counsel again faxed a letter to defense counsel questioning why the business record subpoenas continued to reflect the erroneous time frame for the production of records. (See Exhibit “C”) Defense counsel never responded to plaintiff's counsel's letter nor did she ever receive an updated set of business record subpoenas reflecting the agreed time frame for the production of records, i.e., January 1, 2010 to July 29, 2016. A copy of this objection letter was sent to ABI Document Support Services as well as all deposition officers/custodian of records. Pltf’s Opp to Def’s MIL #14 Oo 0 Na S N n n AEA W N = N O N N N N N N N DN e m em e k m d e d p m e k e k e d 00 ~ I & hh ha W O N em S O 0 N N N n R A W N e OO Plaintiff's counsel subsequently received calls from the various deposition officers/custodian of records because they were confused as to what was going on and whether they had to comply with defendant’s business records subpoenas. Plaintiff's counsel responded that pursuant to her written objections and pending the revision of said subpoenas by defense counsel as she had promised she was going to do, unless of course defendant would have filed a timely motion to enforce said subpoenas and prevailed, they were not required under the law to comply with a defective business record subpoenas. Twenty days prior to the new trial date of December 3, 2018, defense counsel sent plaintiff's counsel two letters threatening to file motions in limine to exclude relevant testimony and records from Dr. Noble and others for failure to comply with the re-issued business record subpoenas. Again, plaintiff's counsel emailed a letter dated November 13, 2018, to defense counsel summarizing in a chronological fashion how this matter had evolved to its current status and why Dr. Noble and others were not complying with her defective business record subpoenas. (See Exhibit “D”) In the spirit of cooperation, however, plaintiff's counsel did forward copies of relevant treatment records from Dr. Noble as well as treatment records from California Rehabilitation and Sports Therapy to defense counsel with her letter that day. On November 15, 2018, plaintiff’s counsel emailed/faxed a letter to defense counsel objecting to another set of defective deposition subpoenas issued to the same recipients for their business records pertaining to plaintiff. (See Exhibit “E”) On November 30, 2018, three days prior to trial, defense counsel emailed plaintiff's counsel to say that she was now agreeing to the production of subpoenaed records “from 2010 to July 26,2016.” Plaintiff’s counsel replied that discovery had closed and that the time for discovery motions had now passed. Defense counsel responded that she had issued “trial Pltf’s Opp to Def’s MIL #14 oo 0 a3 a N n n Ae W N N O O N N N N O N N N N e m e m em e m em md e d p d e d ee 0 NN AA Wn bh W N mem S O 0 NN S N R W N = OC subpoenas.” Again, plaintiff's counsel reiterated that her firm had issued “Deposition Subpoenas” not “Trial Subpoenas.” On December 3, 2018, the first day of trial, defense counsel issued “Civil Subpoenas (Duces Tecum) for Personal Appearance and Production of Documents” to not only Dr. Noble, but to all health care providers and entities whose records were previously sought through Deposition Subpoenas in July 2018. The “Civil Subpoenas” ordered the appearance of Dr. Noble and others to appear at trial and produce their records on December 4, 2018, giving only 24 hours notice! (See Exhibit “F”’) Obviously, said Civil Subpoenas fail to comply with C.C.P. section 1987 (c) since the nonparty witnesses must be given “at least 20 days” notice prior to their attendance at trial with a request for production of records. Twenty-four (24) hour notice to a nonparty witness to appear and produce requested records violates California law. Dr. Noble did contact plaintiff's counsel upon receipt of said Civil Subpoena asking whether he had to comply with defendant’s subpoena. Since Dr. Noble was not given the proper statutory notice to appear and produce records under the Discovery Act, he was told he was not under a legal duty to comply. Here, the facts show that defendant’s Deposition Subpoenas for the production of business records as well as the recently issued Civil Subpoenas have all failed to comply with the requirements set forth under the Discovery Act. Accordingly, defense counsel’s Motion in Limine to now try and exclude Dr. Noble’s relevant treatment records/films and billing records from this trial should be denied its entirety. Defendant’s failure to comply with the fundamental statutes of how the subpoenas are to be prepared and served renders the subpoenas unenforceable. As set forth under the Discovery Act supra, a subpoena that is not properly issued or served need not be complied with. Pltf’s Opp to Def's MIL #14 c e uN a wn se W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant’s Motion in Limine should not be granted where the failure in curing the defects in said subpoenas, in a timely manner, was the fault of defendant, not plaintiff. Strict compliance with statutes and regulations is needed to insure that discovery is properly obtained. Without strict compliance, a question would exist as to whether or not evidence obtained through subpoenas could be admitted into evidence at the time of trial. III. CONCLUSION Based upon the foregoing, defendant’s Motion in Limine No. 14 to exclude Dr. Noble’s medical records, bills and/or films should be denied in its entirety. Dated: December 4, 2018 FRANK P. BARBARO & ASSOCIATES CGY FRANK P. BARBARO LYDIA E. BRANDT Attorneys for Plaintiff GILBERT BADILLO Pltf’s Opp to Def’s MIL #14 S N nh A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF LYDIA E. BRANDT [, Lydia E. Brandt, declare as follows: 1. I'am an attorney duly licensed to practice law in the State of California and am an attorney in the law firm of Frank P. Barbaro & Associates, attorneys of record for Plaintiff. I have personal knowledge of the facts stated herein and could and would competently testify thereto if called upon to do so. 2. Attached hereto as Exhibit "A" is a true and correct copy of defense counsel's letter dated August 15, 2018. 3. Attached hereto as Exhibit "B" is a true and correct copy of defense counsel’s letter dated August 16, 2018. 4. Attached hereto as Exhibit “C” is a true and correct copy of a letter from plaintiffs counsel dated August 31, 2018. 5. Attached hereto as Exhibit “D" is a true and correct copy of a letter from plaintiff's counsel to defense counsel dated November 13, 2018. 6. Attached hereto as Exhibit “E" is a true and correct copy of a letter from plaintiff's counsel to defense counsel dated November 15. 2018. 7. Attached hereto as Exhibit "F" is a true and correct copy of a Civil Subpoena Duces Tecum personally delivered to Dr. Timothy Noble on the trial date of December 3, 2018. 8. The reason why plaintiff's counsel is filing an opposition to the instant Motion in Limine beyond the date of the Issue Conference on November 20, 2018, is that defendant’s motion in limine was emailed to the undersigned on the eve of trial on Sunday evening, December 2" 2018, at approximately 7:28 p.m. I declare under penalty of perjury, pursuant to the laws of the State of California, that the foregoing is true and correct to the best of my knowledge. Executed this 4" / of December 2018, at Santa Ana, California. [des CG J" Brandt, Declarant Pltf’s Opp to Def’s MIL #14 “EXHIBIT “A” GATES, O'DOHERTY, GONTER & GUY LLP 38 Discovery, Suite 200 Peter J. Gates K, Robert Gonter, Jr. Douglas D, Guy Thomas A. Scutti Matthew M. Proudfoot Richard A. Muench, Jr. Kevin M. Raya Alan P. Traflon Jason M. Glantz Lisa L. Renaud Gina Y, Kandarian-Stein Dayna L. Chinelke Lisa Torres Rebecca T, Amirpour Dang K. Brody Dougtag A. Proudfoot Sara L. Rasmussen Valerie G. Campbell Christopher R. Allisen Carolyn Nydahi Adam B. Van Korlaar Jesse A. Alten Marcia M. LaCour Vincent H, Brunello Chad E. Irvin Michael C, Brady Efham R. Rabbani Anthony T, Luebke VIA FACSIMILE Frank Barbaro, Esq. FRANK P, BARBARO & ASSOC. 1111 N. Broadway Santa Ana, CA 92701 Law Offices Irvine, CA 92618 Phone (949) 753-0255 Fax (949) 753-0265 www.gogglaw.com August 15, 2018 Re: BADILILO V. BONELLI Claim No. : Date of Loss: Client: our File No. : Dear Mr. Barbaro: CAPA-00042487 September 8, 2015 Daniel Bonelli N12-243¢ Robert J. Gardner Susan LC. Roche Marisa E. Madrid Jocl A, Graboff Sedaf Djavadi Stephanic Vasquez Angic V. Phung Kevin C, Pegan Jennifer M. Porche William M, Brockschmidt Erika N. Brenner Nicholas Maranesi Derck A. Tran Henry C. Enenmoh Camaray C. Henderson Tucker W, Wade Zachary J. Mikucki Carmen J. Bspinos Jasmine H. Ng Denise Thompson San Diego Office 15373 novation Drive, Suite 170 San Diego, CA 92128-3429 Phone (858) 676-8600 Inland Entpire Office 3350 Shelby Street, Suite 200 Ontario, CA 91764 Phone (909) 477-3282 Los Angeles Office 35% &, Grand Avenue, Suite 2450 Loe Angeles, CA 90017 Phone (213) §92-6332 Thank you for your letter, dated July 3u, 2016, regardi ng Che subpoenas pertaining to plaintiff’s records. T will amend and re-issue the subpcenas for the following wi th limiting language to include records from January 1, 2010 t o July 29, 2016: BADTILLO V. BONELLI Claim No, : CAPA-00042487 Augugt 15, 2018 Page 2 ¢ Southwest Regional Council of Carpenters + The Rule Company o Kaiser Permanente » Timothy Noble, D.C. ¢ California Rehabilitation and Sports Therapy # State Compensation Insurance Fund. Your latter indicates the time frame of January 1. 2011. 1 zsgume this is a mistake as my letter indicated the time frame from January 1, 2010. The parameters in my July 12, 2018 letter will also be included in the limiting language for each provider. should you have any questlons or commengs, ple to contact me. 1] oF i ® Ca i G rr ; 1 mn J hy HE cw 1] Very truly voiks, GATES, GOMIER, GUY, PROUDFOOT & MUENCH, LLP /avk “EXHIBIT “B” 08-16-"18 11:55 FROM- Orel eS Peter J. Gatos K. Robert Genter, Jr. Douglas D. Guy Thomas A. Sculli, Matthew M, Proudfoot Richard A. Muench, Jr, Kevin M, Raya Alen P, Trafton Jason M, Glantz Lisa L. Renaud Gina Y. Kandarian-Stein Dayna L. Chinelka Lisa Torres Rebecca T. Amirpour Dang K. Brody Douglas A. Proudfoot Sara L. Rasmussen Valerie G. Campbell Christopher R. Allison Carolyn Nydahl Adam B. Van Korlaar Jease A. Allen Marcia M. LaCour Vincent H. Brunello Chad E. Irvin Michacl C. Brady Blham R, Rabbani Anthony T. Lusbke VIA FACISIMILE August 16,2018 Lydia E. Brandt, Esq. GATES ODOHERTY 94970230506 T-315 Law Offices GATES, O'DOHERTY, GONTER & GUY LLP 38 Discovery, Suite 200 Irvine, CA 92618 Phone (949) 753-0255 Fax (949) 753-0265 www.gogglaw.com FRANK P. BARBARO & ASSOC. 1111 N. Broadway Santa Ana, CA 9270! Re: Dear Ms. Brandt: This will confirm our agreement that the ti BADILLO V, BONELLI1 Date of Loss: Client: Our File No.: September 8, 2015 Daniel Bonelli 012-2436 January 1, 2010 to July 29, 2016. Very truly yours, P0002/0002 F-877 Robert J. Gardner Susan EB. Roche Marisa E.- Madrid Joel A. Grabofl Sadaf Djavadi Stephanie Vasquez Angic V. Phung Kevin C. Pegan Jennifer M. Porche Willian M. Brockschmidt Erika N. Brenner Nicholas Marancsi Derek A, Tran Henry C. Enenmoh Camaray C. Henderson Tucker W. Wade Zaghary I. Mikucki Carmen G. Espinoa Jasmine H. Ng Denise Thompson 15373 Innovation Drive, Suite 170 Sun Diego, CA 92128-3429 Phone (858) 676-8600 Inizng Empire Office 3350 Shelby Street, Suite 200 Ontario, CA 91764 Phone (909) 477-3282 Los Angeles Office 155 S. Grand. Avenue, Suite 2459 Las Angeles, CA 50017 Phone (213) 892-6332 me limitations for the subpoenas issued by my office will be from GATES, O'DOHERTY, GONTER & GUY LLP et GINA Y. KANDARIAN-STEIN “EXHIBIT “C” FRANK P. BARBARO LYDIA E BRANDT FRAN NK P bB . BARBARO WILLIAM O. HUMPHREYS MALENA L. GIBSON — FSR ES ms (1954-1998) 1111 North Broadway, Santa Ana, California 92701 Tel: 714-835-2122 - Fax: 714-973-4892 www. frankbarbarolaw.com VIA FACSIMILE (949) 753-0265 August 31, 2018 GATES, O°’ DOHERTY, GONTER & GUY, LLP Gina Y. Kandarian-Stein, Esq. 38 Discovery, Suite 200 Irvine, CA 92618 Re: Badillo v. Bonelli - Record Subpoenas by ABI Document Support Services Our File No.: FPB3077 Dear Ms. Kandarian-Stein: I'am in receipt of ABI Document Support Services record subpoenas dated August 24, 2018, pertaining to my client, Gilbert Badillo. Unfortunately, the record subpoenas do not reflect our agreement as to the time limitations for the record production per your letter dated August 16, 2018, which read: “This will confirm our agreement that the time limitations for the subpoenas issued by my office will be from January 1, 2010 to July 29, 2016.” Please make the necessary correction. Very truly yours, FRANK P. BARBARO & ASSOCIATES Spa A [Aes E. BRANDT, Attorney at Taw / cc: ABI Document Support Services - Via (Fax) 1-866-225-7051 Your Reference No.: 6012145 P.O. Box 2970 Springfield, MO 65801-2970 Southwest Regional Council of Carpenters c/o CUSTODIAN OF RECORDS 533 South Fremont Ave, 10% Floor Los Angeles, CA 90071 The Rule Company c/o CUSTODIAN OF RECORDS 115 North El Molino Avenue P.O. Box 7072 Pasadena, CA 91101 Kaiser Permanente Central Release of Information Unit c/o CUSTODIAN OF RECORDS 10740 Fourth Street, Second Floor Rancho Cucamonga, CA 91730 Kaiser Permanente Central Support Services Revenue Cycle c/o CUSTODIAN OF RECORDS 74 North Pasadena Avenue, 7* Floor Pasadena, CA 91103 Kaiser Permanente/Radiology c/o CUSTODIAN OF RECORDS 1011 South East Street Anaheim, CA 92805 Kaiser Permanente - California Service Center c/o CUSTODIAN OF RECORDS 3840 Murphy Canyon Road, 1* Floor San Diego, CA 92123 Timothy R. Noble, D.C. ¢/o CUSTODIAN OF RECORDS 5769 East Santa Ana Canyon Road, Suite P Anaheim Hills, CA 92807 California Rehabilitation and Sports Therapy c/o CUSTODIAN OF RECORDS 5630 East Santa Ana Canyon Road Anaheim. CA 92807 State Compensation Insurance Fund c/o CUSTODIAN OF RECORDS 655 North Central Glendale, CA 91203 “EXHIBIT “D” « - FRANK P. BARBARO Lo L SB EE LYDIA E. BRANDT FRANK P. BARBARO WILLIAM O. HUMPHREYS MALENA L. GIBSON — & ASSOCIATES (1954-1998) HA A => Hh A 1111 North Broadway, Santa Ana, California 92701 Tel: 714-835-2122 - Fax: 714-973-4892 www. frankbarbarolaw.com VIA EMAIL November 13, 2018 GATES, O'DOHERTY, GONTER & GUY, LLP Gina Y. Kandarian-Stein, Esq. 38 Discovery, Suite 200 Irvine, CA 92618 Re: Badillo v. Bonelli Our File No.: FPB3077 Dear Ms. Kandarian-Stein: I'am in receipt of two faxes this morning from you regarding record subpoenas previously issued by your office with regard to Gilbert Badillo’s health care providers namely Timothy R. Noble, D.C. and California Rehabilitation and Sports Therapy (“California Rehab”). In both faxed letters, you threaten to file motions in limine to prevent Dr. Noble from testifying at trial and to exclude reference to treatment by California Rehab because you state I advised Dr. Noble's office not to comply with your subpoena and you state California Rehab has informed you they no longer have access to the subject records. Please refer to the following chronology of events: * On July 10, 2018. your office issued various business record subpoenas through ABI Document Support Services for Gilbert Badillo’s health care provider records as well as employment related records. On July 17, 2018, I faxed a five (5) page letter to Attorney K. Robert Gonter at your Irvine office (see attached) objecting to the various subpoenas. With regard to the records sought from Dr. Noble and California Rehab, I agreed to a production of records “for the five (5) years prior to the subject incident of 09/08/15, and to the present time.” © On August 16. 2018, you faxed me a letter confirming we had agreed to the following time limitations for the production of records: “from January 1, 2010 to July 29, 2016.” © On August 24, 2018, your office again issued a second set of business record subpoenas through ABI Document Support Services to the same entities named in the first set of subpoenas. The business record subpoenas all included the following time frame: “Updated Records from 1/1/2010 to present and limiting to the body parts of neck, back and arms.” © On August 31, 2018, I faxed a letter to you stating that the record subpoenas issued by your office did not reflect our agreement that the record production time frame was to be “from January 1, 2010 to July 29, 2016.” In my letter I asked you to make the necessary correction. You never responded to my letter nor did I ever receive an updated set of record subpoenas from ABI Document Support Services with the revised time frame. * Now, 20 days prior to trial, you fax me two letters on November 12, 2018, threatening to file motions in limine to keep out relevant testimony and records pertaining to treatment rendered by Dr. Noble and California Rehab from being produced at the time of trial. My question to you is why didn’t you instruct ABI Document Support Services immediately to correct the time frame for production of records per our agreement and per your letter dated August 16, 2018? It is very disingenuous of you now, at the 11™ hour, almost 90 days later, to threaten to keep testimony and evidence from being presented at the time of trial when you failed to follow through with ABI Document Support Services in a timely manner and instruct them revise the record subpoenas to reflect the time frame we had ultimately agreed to. Based upon the foregoing, I do not believe your motions in limine would find favor with the court nor would the court likely grant your motions. However, in the spirit of good faith, I am attaching records that our office received from both Dr. Noble's office and California Rehab in January 2018 and February 2018, respectively, reflecting relevant treatment records and billing records. If you have any questions, please feel free to contact me. Very truly yours, FRANK P. BARBARO & ASSOCIATES J LYDIA E. BRANDT, Attorney at Law Enc. July 10, 2018 Business Record Subpoenas July 17, 2018 letter August 16, 2018 letter August 24, 2018 Business Record Subpoena August 31, 2018 letter 6 EXHIBIT “E” preci FRANK P. BARBARO % SNE. Ee = LYDIA E BRANDT F RANK P BARBARO WILLIAM O. HUMPHREYS MALENA L. GIBSON A A oh 8D * kw 1111 North Broadway, Santa Ana, California 92701 Tel: 714-835-2122 - Fax: 714-973-4892 www.frankbarbarolaw.com VIA EMAIL & FACSIMILE (949) 753-0265 November 15, 2018 GATES, O'DOHERTY, GONTER & GUY, LLP Gina Y. Kandarian-Stein, Esq. 38 Discovery, Suite 200 Irvine, CA 92618 Re: Badillo v. Bonelli Our File No.: FPB3077 Dear Ms. Kandarian-Stein: I'am in receipt of a “First Notice” from ABI Document Support Services dated November 13, 2018, with regard to your request to subpoena various records from my client, Gilbert Badillo’s treating health care providers, employer and employer’s insurer. Please consider this a “WRITTEN OBJECTION” to said subpoenas in that the time frame for the records you seek from “01/01/2008 to present” fails to comply with our agreement set forth in your letter dated August 15, 2018, that the time frame for the production of records was to be “from January 1, 2010 to July 29, 2016.” Please see attached. If you have any questions, please contact me. Very truly yours, FRANK P.B LYDIA E. BRANDT, Attorney at Law Enc. Letter dated August 15, 2018 cc: ABI Document Support Services - Via (Fax) 1-866-225-7051 Your Reference No.: 6012145 P.O. Box 2970 Springfield, MO 65801-2970 Southwest Regional Council of Carpenters c/o CUSTODIAN OF RECORDS 533 South Fremont Ave, 10" Floor Los Angeles, CA 90071 The Rule Company c/o CUSTODIAN OF RECORDS 115 North El Molino Avenue P.O. Box 7072 Pasadena. CA 91101 Kaiser Permanente Central Release of Information Unit c/o CUSTODIAN OF RECORDS 10740 Fourth Street, Second Floor Rancho Cucamonga, CA 91730 Kaiser Permanente Central Support Services Revenue Cycle c/o CUSTODIAN OF RECORDS 74 North Pasadena Avenue, 7" Floor Pasadena, CA 91103 Kaiser Permanente/Radiology c/o CUSTODIAN OF RECORDS 1011 South East Street Anaheim, CA 92805 Kaiser Permanente - California Service Center c/o CUSTODIAN OF RECORDS 3840 Murphy Canyon Road, 1* Floor San Diego, CA 92123 Timothy R. Noble, D.C. c/o CUSTODIAN OF RECORDS 5769 East Santa Ana Canyon Road, Suite P Anaheim Hills, CA 92807 California Rehabilitation and Sports Therapy c/o CUSTODIAN OF RECORDS 5€30 East Santa Ana Canyon Road Anaheim, CA 92807 State Compensation Insurance Fund c/o CUSTODIAN OF RECORDS 655 North Central Glendale, CA 91203 “EXHIBIT “F” SUBP-002 ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, state bar number. and address): Ref No. or File No FOR COURT USE ONLY Gates, O'Doherty, Gonter & Guy 012-2436 Gina Stein, 201566 38 Discovery, Suite 200 Irvine, CA 92618 TELEPHONE NO: (949) 753-0255 raxno: (949) 753-0265 ATTORNEY FOR (Name) Defendant - Daniel Bonelli NAME OF COURT. Orange County Superior Court street ADDRESS: 7100 Civic Center Drive West MAILING ADDRESS" city AND ZP CODE: Santa Ana, 92701 BrancH Nave: Central Justice Center PLAINTIFF/PETITIONER: GILBER BADILLO DEFENDANT/RESPONDENT: DANIEL BONELLI CIVIL SUBPOENA (DUCES TECUM) for Personal Appearance and CASE NUMBER Production of Documents, Electronically Stored Information, and Things at _ _ Trial or Hearing AND DECLARATION 30=2017=DARA2453 THE PEOPLE OF THE STATE OF CALIFORNIA, TO (name, address, and telephone number of witness, ifknown): (714) 974-3700 Custodian of Records: Timothy R. Noble, D.C. 5769 East Santa Ana Canyon Road, Suite P, Anaheim Hills, CA, 92807 1. YOU ARE ORDERED TO APPEAR AS A WITNESS in this action at the date, time, and place shown in the box below UNLESS your appearance is excused as indicated in box 3b below or you make an agreement with the person named in item 4 below. a. Date: December 4, 2018 Time: 09:00 am Dept. Div.: Room: | Db. Address: 700 Civic Center Drive West, Santa Ana, CA 92701 2. IF YOU HAVE BEEN SERVED WITH THIS SUBPOENA AS A CUSTODIAN OF CONSUMER OR EMPLOYEE RECORDS UNDER CODE OF CIVIL PROCEDURE SECTION 1985.3 OR 1985.6 AND A MOTION TO QUASH OR AN OBJECTION HAS BEEN SERVED ON YOU, A COURT ORDER OR AGREEMENT OF THE PARTIES, WITNESSES, AND CONSUMER OR EMPLOYEE AFFECTED MUST BE OBTAINED BEFORE YOU ARE REQUIRED TO PRODUCE CONSUMER OR EMPLOYEE RECORDS. 3. YOU ARE (item a or b must be checked): a. [] Ordered to appear in person and to produce the records described in the declaration on page two or the attached declaration or affidavit. The personal attendance of the custodian or other qualified witness and the production of the original records are required by this subpoena. The procedure authorized by Evidence Code sections 1560(b), 1561, and 1662 will not be deemed sufficient compliance with this subpoena. b. [xx] Not required to appear in person if you produce (i) the records described in the declaration on page two or the attached declaration or affidavit and (ii) a completed declaration of custodian of records in compliance with Evidence Code sections 1560, 1561, 1562, and 1271. (1) Place a copy of the records in an envelope (or other wrapper). Enclose the original declaration of the custodian with the records. Seal the envelope. (2) Attach a copy of this subpoena to the envelope or write on the envelope the case name and number; your name; and the date, time, and place from item 1 in the box above. (3) Place this first envelope in an cuter envelope, seal it, and mail it to the clerk of the court at the address in item 1. (4) Mail a copy of your declaration to the attorney or party listed at the top of this form. 4. IF YOU HAVE ANY QUESTIONS ABOUT THE TIME OR DATE YOU ARE TO APPEAR, OR IF YOU WANT TO BE CERTAIN THAT YOUR PRESENCE IS REQUIRED, CONTACT THE FOLLOWING PERSON BEFORE THE DATE ON WHICH YOU ARE TO APPEAR: a. Name of subpcenaing party or attorney: Gina Stein, Esq. b. Telephone number: (949) 753-0255 5. Witness Fees: You are entitled to witness fees and mileage actually traveled both ways, as provided by law, if you request them at the time of service. You may request them before your scheduled appearance from the person named in item 4. DISOBEDIENCE OF THIS SUBPOENA MAY BE PUNISHED AS CONTEMPT BY THIS COURT. YOU WILL ALSO BE LIABLE FOR THE SUM OF FIVE HUNDRED DOLLARS AND ALL DAMAGES RESULTING FROM YOUR FAILURE TO OBEY. Date issued: December 3, 2018 Gina Stein /S/Gina Stein fr ee a ee ea ee TROT TTY vw de dh es eae as (TYPE OR PRINT NAME} {SIGNATURE OF PERSON ISSUING SUBPOENA) Attorney at Law (TITLE) {Declaration in support of subpoena on reverse) Page one of three FO fepind tor Mandlony, Jes CIVIL SUBPOENA (DUCES TECUM) for Personal Appearance and Cor Ca Pp cotun SUB-002{Rev January 1. 2012] production of Documents, Electronically Stored Information, and Things at Trial or Hearing and DECLARATION 6079325-07/CPROQF 102" SUBP-002 PLAINTIFF/PETITIONER: GILBER BADILLO CASE NUMBER: DEFENDANT/RESPONDENT: DANIEL BONELLI 30-2017-00942453 The production of the documents or the other things sought by the subpoena on page one is supported by (check one): [the attached affidavit or declaration fX 7] the following declaration: DECLARATION IN SUPPORT OF CIVIL SUBPOENA (DUCES TECUM) FOR PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS, ELECTRONICALLY STORED INFORMATION, AND THINGS AT TRIAL OR HEARING (Code Civ. Proc., §§ 1985, 1987.5) 1. |, the undersigned, declare | am the [plaintiff =~ [XX]defendant [petitioner ~~ [_ Fespondent [XJattorney for (specify): Daniel Bonelli in the above-entitied action. Z. The wilness has possession oi control of the following documents or other things and shall produce them at the tims and place specified in the Civil Subpoena for Personal Appearance and Production of Documents and Things at Trial or Hearing on page one of this form (specify the exact documents or other things to be produced): See attachment '2' regarding the description of records to be produced pertaining to Gilbert Badillo, DOB: March 23, 1955, SS# XXX-XX-0080, from 01/01/2010 to 01/26/2016. Continued on Attachment. Good cause exists for the production of the documents or other things described in paragraph 2 for the following reasons: w For purposes of litigation. [] Continued on Attachment 3. 4. These documents or other things described in paragraph 2 are material to the issues involved in this case for the following reasons: For purposes of determining settlement. [i Continued on Attachment 4. | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: December 3, 2018 Gina Stein > /s/ Gina Stein (TYPE OR PRINT NAME) (SIGNATURE OF [] SUBPOENAING PARTY ATTORNEY FOR SUBPOENAING PARTY) Requests for Accommodations Assistive listening systems, computer-assisted real-time acaptioning, or sign language interpreter services are available if you ask at least 5 days before the date on which you are to appear. Contact the clerk's office or go to www. courtinfo.ca.gov/forms for Request for Accommodations by Persons With Disabilities and Order (form MC-410). (Civil Code, § 54.8.) SUBP-002[Rev. January 1.2012] cv) SUBPOENA (DUCES TECUM) for Personal Appearance and Production of Documents, Electronically Stored Information, and Things at Trial or Hearing and DECLARATION Order#: 6079325-07/CPROOF 10341 ATTACHMENT 2 Case Number: 30-2017-00942453 Case Name: GILBER BADILLO VS. DANIEL BONELLI The records to be produced are described as follows: Ary and all documents and records pertaining to care, trsatment and examination, including but not limited to, all office, emergency room, inpatient / outpatient charts, Any and all x-ray films, to include MRI's, Cat Scans, Myelograms and any other films. Any and all records of payment and /or discount regarding any medical billing as well as the bills themselves, billing information, including but not limited to procedure and diagnosis codes, statements, computer printouts, all charges, credits, payments, adjustments and/or write-offs, and the sources of each, such as all EOBs from any insurance carrier reflecting any and all credits and adjustments and write-offs to the bills by virtue of any payments and/or contractual agreements/adjustments, including fees, etc. for professional services including Medicare, Medicaid, etc., pertaining to: Gilbert Badillo, DOB: March 23, 1955, SS# XXX-XX-0080, from 01/01/2010 to 01/26/2016. 6079325-07/ATT2PG2 wn A W N ~ 10 11 12 13 14 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the a. my business address is 1111 N. Broadway., Santa Ana, CA 92701. On December , 2018, I served by mail the foregoing document(s) described as: PLAINTIFF'S OPPOSITION TO DEFENDANT’S MOTION IN LIMINE NO. 14 TO EXCLUDE ANY REFERENCE TO OR EVIDENCE OF PLAINTIFF'S MEDICAL RECORDS, BILLS AND/OR FILMS FROM TIMOTHY NOBLE, D.C/ANAHEIM HILLS CHIROPRACTIC CENTER; MEMORANDUM OF POINTS AND AUTHORITIES on the interested parties in this action by placing a true copy thereof enclosed in a sealed envelope addressed as follows: SEE ATTACHED MAILING LIST o BY MAIL: I served by mail a true and correct copy of the above-described documents in a sealed envelope. I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. postal service on that same day with postage thereon fully prepaid at Santa Ana, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. BY FACSIMILE: I served by facsimile a true copy of the above-described document. I am “readily familiar with this firms practice of processing correspondence by fax. Under that practice documents are placed in our fax machine and are processed and received simultaneously at their destination. The above-referenced document(s) was placed in the fax machine with all costs of faxing prepaid, directed to each party (using their fax number), listed on the attached Service List. Once the document has been transmitted, the fax machine provides a report indicating time of completion. o BY OVERNIGHT EXPRESS MAIL: As follows: I am “readily familiar” with the firms practice of collection and processing correspondence by Overnight Express mailing. Under that practice it was deposited with the Overnight Express service on that same day with the proper postage thereon fully prepaid at Santa Ana, California in the ordinary course of business. o BY PERSONAL SERVICE: I delivered such envelope by hand to the addressee. ss EMAIL to Gina Stein gsteinf@g3pmlaw.com; and Kimberly Miller kmiller@g3pmlaw.com by L. Brandt. (Ee Executed on oer 20s at Santa Ana, California. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Vins fo off Carlsson 10 PItf’s Opp to Def’s MIL #14 QW a S N NY E W N N O O N N N N N N N N em m m e m m d mm e m mm b m md ma d WW JI A Wn dE W N = o e 0 N N E W N =m, SERVICE LIST K. Robert Gonter, Jr., Esq. Gina Y. Kandarian-Stein, Esq. GATES, GONTER, GUY, PROUDFOOT & MUENCH, LLP 38 Discovery, Suite 200 Irvine, CA 92618 TEL: 949-753-0255 FAX: 949-753-0265 Attorneys for Defendant, DANIEL JOHN BONELLI 11 Pltf’s Opp to Def’s MIL #14