Motion to Compel

Cal. Super. - 2nd Dist.August 31, 2015

123 Judge SUPERIOR COURT OF CALIFORNIA, TENTATIVE RULINGS EVENT DATE: EVENT TIME: VENTURA DIVISION September 29, 2017 10/04/2017 08:20:00 AM DEPT.: 43 COUNTY OF VENTURA JUDICIAL OFFICER: Kevin DeNoce CASE NUM: CASE CATEGORY: EVENT TYPE: CASE TITLE: CASE TYPE:Civil - Unlimited PI/PD/WD - Other 56-2015-00471717-CU-PO-VTA DANIELLE W VS. AURORA VISTA DEL MAR HOSPITAL LLC Motion to Compel - to Compel Compliance of Ventura Police Department with Deposition Subpoena for CAUSAL DOCUMENT/DATE FILED: Motion - Other, 09/01/2017 stolo The morning calendar before Judge Kevin G. DeNoce will begin at 9 a.m. in courtroom 43. Cases including ex parte matters will not be called prior to 9 a.m. Please check in with the courtroom clerk by no later than 8:45 a.m. If appearing by Court Call, please call in between 8:35 and 8:45 a.m. With respect to the below scheduled tentative ruling, no notice of intent to appear is required. If you wish to submit on the tentative decision, you can send an email to the court at: Courtroom43@ventura.courts.ca.gov or send a telefax to Judge DeNoce's secretary, Hellmi McIntyre at 805-477-5894, stating that you submit on the tentative. Do not call in lieu of sending an email or telefax. If you submit on the tentative without appearing and the opposing party appears, the hearing will be conducted in your absence. This case has been assigned to Judge DeNoce for all purposes. Absent waiver of notice and in the event an order is not signed at the hearing, the prevailing party shall prepare a proposed order and comply with CRC 3.1312 subdivisions (a), (b), (d) and (e). The signed order shall be served on all parties and a proof of service filed with the court. A "notice of ruling" in lieu of this procedure is not authorized. For general information regarding Judge DeNoce and his courtroom rules and procedures, please visit: http://www.denoce.com ______________________________________________ The court's tentative ruling is as follows: The Court intends to deny Defendants Aurora Vista Del Mar LLC's and Signature Healthcare Services, LLC's Motion to Compel Compliance of Ventura Police Department with Deposition Subpoena for Production of Business Records. However, the Court is inclined to order the Ventura Police Department to allow for the inspection/copying only of the documents in the subpoena. Any documents obtained by defendants are ordered subject to a protective order limiting access to the parties' attorneys, their staff and experts. Discussion: The issue before this court was addressed in Cooley v. Superior Court (Greenstein) (2006) 140 Cal.App.4th 1039, 1041. In Cooley, George Weller drove his vehicle through a Santa Monica farmers market killing 10 people and causing multiple injuries. Based on his conduct, Weller was prosecuted by the District Attorney and sued in civil actions by victims, including Greenstein. The incident was investigated by the Santa Monica Police Department and California Highway Patrol. Results of the investigation were placed in a report. Greenstein served a subpoena duces tecum upon TENTATIVE RULINGS Page: 1 CASE NUMBER: CASE TITLE: DANIELLE W VS. AURORA VISTA DEL MAR HOSPITAL LLC 56-2015-00471717-CU-PO-VTA the District Attorney for the report as well as other documents in the criminal action. The District Attorney objected on various grounds, including that the documents were not its business records and could not be produced in response to the subpoena. In reversing the trial court's decision granting the motion to enforce the subpoena, the appellate court stated: "At first blush, it would seem that a person or entity that maintains records would also be the custodian of those records. Nevertheless, the custodian of records or other qualified witness contemplated by Evidence Code section 1561 must also be able to attest to various attributes of the records relevant to their authenticity and trustworthiness. As such, execution of a section 1561 affidavit is more than simply a clerical task." (Id. at p. 1044.) "Here, the DA's assertion that it did not prepare or generate any of the documents covered by the SDT stands uncontested. Thus, even before the 1996 amendment's addition of subdivision (a)(4) and (5) to Evidence Code section 1561, the DA could not have made the attestation set forth in subdivision (a)(3) that the subpoenaed records had been prepared in the ordinary course of business at or near the time of the event. And as section 1561 now stands, the DA is unable to comply with subdivision (a)(4) and (5), and, thus, is not a custodian of the records sought." (Id. at p. 1045.) The Ventura Police Department's objection that the journal and notepads at issue under the subpoena were prepared or generated by a third party is uncontested. It is clear that the journal was prepared by plaintiff Danielle W. Under Cooley v. Superior Court (Greenstein), supra, 140 Cal.App.4th 1039, it would be an error to enforce the subpoena in this case since the Ventura Police Department is not a custodian and would be unable to comply with Evidence Code § 1561 (affidavit accompanying records). The court in Cooley v. Superior Court (Greenstein), supra, 140 Cal.App.4th at p. 1045, did state that "[w]hether the records described in the SDT can otherwise be obtained by Greenstein, and under what conditions, was not raised below and we offer no opinion on the subject." Defendants have not proposed a specific procedure, only stating that the City Attorney has indicated that a court order may allow for an inspection or that they are amenable to a stipulation. The City Attorney has proposed that the documents be made available for inspection/copying only and be subject to a protective order limiting disclosure to certain individuals. The City Attorney states that the originals must be kept as part of the criminal case for future purposes. Any documents obtained by defendants will be without any affidavit under Evidence Code § 1561 and would have to be authenticated by other means. TENTATIVE RULINGS Page: 2