CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
(Super. Ct. No. LC 29825)
Plaintiff and Respondent,
FARMERS INSURANCE GROUP OF
COMPANIES et al.,
Objector and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County. Haig
Kehiayan, Judge. Affirmed.
Priscilla Feldsher, in pro. per., for Objector and Appellant.
Rosoff, Schiffres & Barta and Robert M. Barta for Plaintiff and
*Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is
certified for partial publication. The portions deleted are noted by the insertion of
the following symbol at the points of omission [].
Appellant, Priscilla Feldsher, D.C., a non-party witness, appeals from an
order of the trial court requiring her to comply with a deposition subpoena and pay
$3,014 in sanctions. In this appeal we are called upon to address the issue of
whether a health care practitioner may refuse to comply with a valid deposition
subpoena calling for the production of her patient’s records until the patient or the
patient’s attorney signs a lien supplied by the health care practitioner. We hold
that the records belong to the patient and the health care practitioner has no right to
hold the records hostage in this manner. We therefore hold that the trial court did
not err in requiring the health care practitioner to comply with the subpoena [[and
did not abuse its discretion in ordering her to pay $3,014 in sanctions]].
Accordingly, the order is affirmed.
FACTUAL AND PROCEDURAL SYNOPSIS
John Person sought treatment from Feldsher, a chiropractor, for injuries he
sustained in an automobile accident. Person completed his treatment in February
1993. Seeking reimbursement of his expenses from his insurance company,
Person requested his medical records from Feldsher.
On July 15, 1993, Person’s attorney, Robert Barta, wrote to Feldsher
requesting copies of Person’s medical records and billing statements.1 Person’s
authorization for release of his records was attached. Feldsher responded by
stating she would not produce the requested documents unless Barta signed a lien
for her fees. Barta refused to sign the lien on the ground it “contained
1 The records called for in the deposition subpoena were: “All documents and
records, including, but not limited to, all office, emergency room, inpatient and
outpatient charts and records, and hospital charts and records, itemized statements
pertaining to John Person regarding [sic.] automobile accident of 12/29/92. Date
of birth: 07/29/70. Social Security Number: 557-29/[sic.]3105.”
unconscionable terms.”2 Feldsher refused to accept Barta’s amendments. Because
the statute of limitations was running out, Person filed an arbitration action against
his insurance company.
On March 16, 1994, Barta served Feldsher with a deposition subpoena for
the production of Person’s records. Feldsher made records available for copying
on April 14, 1994. However, Feldsher did not produce all of the requested
documents. On April 29, 1994, Feldsher wrote Barta that she was waiting for
Barta to sign the lien form, and, “[a]s soon as we receive this document we will
forward to you a final narrative report of findings along with a complete billing
statement.” (Italics added.) Barta served Feldsher with a second subpoena on
October 20, 1994, seeking the identical documents. The second subpoena
contained a typographical error requiring compliance on November 10, 1995,
instead of 1994. Feldsher did not respond.
Turning to the trial court3 on December 6, 1994, Person moved for an order
compelling Feldsher to provide the requested documents and for monetary
sanctions in the amount of $3,014. In her opposition to the motion, Feldsher told
the court, “I have never prepared a medical narrative report and billing
statement. . . . It is the policy of this clinic not to prepare a narrative medical
report until this office have [sic.] a fully executed lien.” (Italics added.)
The trial court granted Person’s motion, ordered Feldsher to produce the
documents and pay Person $3,014 in sanctions within 20 days. The trial court
2 The record contains an illegible copy of the disputed lien form. However,
because the issue before us is whether Feldsher was justified in refusing to comply
with a deposition subpoena until the patient or his attorney signed a lien, we need
not concern ourselves with the exact wording of the form.
3 As the underlying proceeding was in the nature of an arbitration, Person
obtained a superior court civil action number for the purposes of filing his motion
to compel Feldsher to produce the subpoenaed documents.
denied Feldsher’s motion for reconsideration of the sanctions order. On her own
behalf, Feldsher filed this timely appeal.
(1) The trial court abused its discretion in granting Person’s motion to
compel Feldsher’s compliance with the subpoena.
[[(2) The trial court lacked jurisdiction to order sanctions against
Discovery sanctions are generally not appealable under the final-collateral-
order exception to the final-judgment rule. (Barton v. Ahmanson Developments,
Inc. (1993) 17 Cal.App.4th 1358, 1360-1361; Marsh v. Mountain Zephyr Inc.
(1996) 43 Cal.App.4th 289, 299.) A monetary sanction order for less than $5,000
against a party or the party’s attorney is also nonappealable. (Code Civ. Proc.,
§ 904.1, subd. (a)(11) and (12); Ballard v. Taylor (1993) 20 Cal.App.4th 1736,
1738-1739.) The reason appears to be that sanction orders for discovery violations
can be numerous and repetitive, creating the possibility of limitless interim
appeals. (Barton, supra, at p. 1361; Ballard, supra, at p. 1739.)
However, Division Four of this District has held a monetary discovery
sanction order against a person who is neither a party nor the party’s attorney is
appealable by the person sanctioned. (Barton, supra, at pp. 1360-1362; Marsh,
supra, at p. 299.) The reason is “ ‘. . . it better serves the interests of justice to
afford prompt appellate review to a party whose rights or liabilities have been
definitively adjudicated than to require him to await the final outcome of trial
proceedings which are of no further concern to him.’ [Citation.]” (Barton, supra,
at p. 1361.) Feldsher was never a party to the underlying arbitration and is no
longer involved. Thus, the policy concerns about further discovery proceedings,
multiple interim appeals and withholding appeal until the final judgment do not
apply. (Ibid.) No particular purpose would be served by delaying resolution of
2. Medical Practitioners Must Produce Records Properly Requested By
Feldsher has no right to refuse Person his records. The Legislature made
clear its intent that “. . . every person having ultimate responsibility for decisions
respecting his or her own health care also possesses a concomitant right of access
to complete information respecting his or her condition and care provided.”
(Health & Saf. Code, § 1795, italics added.)4 As a result, the Legislature has
devised procedures by which patients can obtain access to health care records or
summaries. (Ibid.) Section 1795.12 specifies an adult patient of a health care
provider, including a licensed chiropractor (Health & Saf. Code, § 1795.10, subd.
(8)), “. . . shall be entitled to inspect patient records upon presenting to the health
care provider a written request for those records and upon payment of reasonable
clerical costs incurred in locating and making the records available.” (Health &
Saf. Code, § 1795.12, subd. (a), italics added.) Evidence Code section 1158 also
authorizes the patient or his or her representative to obtain these records. The
patient may also copy the records.
There is nothing in this statute which allows the health care provider to
refuse inspection and copying or to condition access to the records except for the
reasonable clerical costs, supra. Indeed, section 1795.12 of the Health and Safety
Code declares a willful violation of this provision constitutes unprofessional
conduct. Patients may enforce this provision by bringing an action and any
judgment rendered may include the court’s discretion, an award of costs and
4 In 1995, in the general reorganization of the Health and Safety Code,
sections 1795 through 1795.26 were repealed and reenacted as sections 123100
through 123145. (Stats. 1995, c. 415 (S.B. 1360).) We refer to the code sections
applicable at the time of the trial court’s order.
reasonable attorney fees pursuant to Health and Safety Code section 1795.16. (See
Evid. Code, § 1158.)
In re-enacting this provision in 1995, the Legislature saw fit to strengthen
its enforcement provision. Subdivision (g) of section 123110, effective after the
court made its ruling under dispute herein, provides, “This section shall be
construed as prohibiting a health care provider from withholding patient records or
summaries of patient records because of an unpaid bill for health care services.
Any health care provider who willfully withholds patient records or summaries of
patient records because of an unpaid bill for health care services shall be subject
to the sanctions specified in subdivision (f).” (Italics added.) Such sanctions
include authorizing the state agency licensing the health care practitioner to
“. . . consider a violation [of this section] as grounds for disciplinary action with
respect to the licensure, including suspension or revocation of the license or
certificate.” (Health & Saf. Code, § 123110, subd. (f).) Although the subdivision
passed in 1995 is not applicable to Feldsher, it indicates the seriousness with which
the Legislature disapproves of the willful withholding of patients’ records.
The discovery statutes produce the same result. Rule 1612 of the California
Rules of Court makes the discovery provisions in the Code of Civil Procedure,5
sections 2002 to 2042, applicable to arbitrations. Also in arbitrations, subpoenas
are served and enforced under section 1985 et seq. (§ 1282.6, subd. (c).)
Subdivision (d) of section 2020, authorizes service of a deposition subpoena for
the production of documents on a nonparty witness and subdivisions (g) and (h)
authorize punishment for “refusal . . . to produce” documents requested in the
subpoena. (Italics added.) In short, Feldsher had no basis for refusing Person or
his attorney access to those records to which he had a statutory right.
5 Hereinafter, all statutory references shall be to the Code of Civil Procedure
unless otherwise noted.
In holding that a health care practitioner may not refuse inspection and
copying or condition access to patient records, we refer to records which exist at
the time of the discovery request. However, the health care provider may not
avoid the mandate of court process by not preparing such a record when the raw
data is available to do so. When billing records or “itemized statements” are
requested they should be produced if: (1) the raw data which would support such a
statement exist; (2) all that is required to produce the billing statement is a
compilation of existing data, and (3) preparation of the compilation would not be
unduly burdensome or oppressive. Under such circumstances, we hold, the health
care provider must compile and provide the itemized statement in response to a
proper discovery request. The burden is upon the health care provider to establish
that the compilation would be unduly burdensome or oppressive.
While Feldsher may have produced nine pages in response to the first
request for production in April 1994, by her own repeated admissions, Feldsher
refused to produce the requested medical report and complete billing statements
until Barta’s counsel executed her lien. Feldsher admitted as much in her letter to
Barta as well as in her opposition to the motion to compel. The medical records
and certainly billing statements are documents created in the course of her practice.
Feldsher may not unilaterally condition her compliance with the subpoena in this
manner. Nor may she frustrate the lawful process of the court by pleading that she
does not prepare billing records until the lien is signed. It is without question that
Feldsher, like any other health care practitioner, keeps records of treatments and
charges which constitute the raw data from which a simple arithmetical
computation can produce the subpoenaed document. Feldsher deliberately refused
to respond to the subpoenas in direct violation of section 2020 and Health and
Safety Code section 1795.12.6
[[3. The Trial Court Had Authority To Order Feldsher to Pay Sanctions.
Feldsher next argues the trial court lacked jurisdiction to order her to pay
$3,014 in sanctions. We disagree.7
The deposition subpoena at issue here, for the production of documents, is
administered under section 2020 which contains two provisions concerning
enforcement of a subpoena. First, a subpoena may be enforced by a motion to
compel compliance under section 1987.1. (§ 2020, subd. (a); Weil & Brown, Cal.
Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 1996) [¶] 8:609, p. 8E-60.)
The court may then, “in its discretion” award expenses and fees to the prevailing
party if the court finds the motion was opposed in “bad faith” or “without
substantial justification” under section 1987.2. Second, the court has the authority
of section 2020, subdivision (h) to punish a nonparty witness who disobeys a
deposition subpoena by his or her “refusal . . . to produce specified items.”
(§ 2020, subd. (g).) The court may cite such a witness for contempt under section
2023 “without the necessity of a prior order of court directing compliance by the
witness,” and the witness is subject to forfeiture of $500 and payment of damages
as set forth in section 1992. (§ 2020, subds. (g) and (h).) As a practical matter,
this second procedure is uneconomical and time consuming because the forfeiture
and damages under section 1992 must be recovered by the aggrieved party in a
6 We are unpersuaded by Feldsher’s contention she cannot be held
responsible for failure to respond to the second deposition subpoena because the
date for compliance was not until November 1995, more than a year after the
subpoena was served. The date for the subpoena was listed on the proof of service
as “11/10/94” and Feldsher was in contact with Barta. (Italics added.)
7 In moving to compel Feldsher to produce the documents, Person requested
monetary sanctions pursuant to section 2025, subdivision (j) under which the
separate civil action. (§ 1992; Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before
Trial, supra, [¶¶] 8:618-8:619, p. 8E-62; New York Times Co. v. Superior Court
(1990) 51 Cal.3d 453, 464.)
Sections 1987.1 and 1987.2 are made applicable to nonparty deposition
subpoenas by the last paragraph of section 2020, subdivision (a) which reads,
“Except as modified in this section, the provisions of Chapter 2 (commencing with
Section 1985) . . . apply to a deposition subpoena.” (Italics added.) While
subdivision (h) of section 2020 also provides for enforcement, after reading these
provisions with an eye toward harmonizing them (People v. Pieters (1991) 52
Cal.3d 894, 899), we conclude the enforcement provisions in section 2020
subdivision (h) on the one hand, and sections 1987.1 and 1987.2 on the other hand,
are not mutually exclusive. Section 1987.1 authorizes trial courts to make orders
quashing, modifying or “directing compliance with” subpoenas. (§ 1987.1.)
Section 2020, subdivision (h), which allows the trial court to hold a recalcitrant
deponent in contempt “without the necessity of a prior order of [the] court,” does
not contain a subdivision under which the court may order a nonparty deponent to
comply. Therefore, with respect to motions and orders to compel a nonparty’s
compliance with a deposition subpoena, section 2020 does not “modify” section
1987.1.8 Stated otherwise, the trial court was empowered to order Feldsher to
“court may impose on the deponent the sanctions described in subdivision (h) of
Section 2020.” (§ 2025, subd. (j)(2).)
8 The Supreme Court’s decision in New York Times Co. v. Superior Court,
supra, 51 Cal.3d 453, does not compel a different conclusion. There, in analyzing
whether the shield law immunized a nonparty journalist from sanctions under
section 1992, the Supreme Court distinguished its decision in Mitchell v. Superior
Court (1984) 37 Cal.3d 268, explaining, “[t]he linchpin of our reasoning, however,
was that the shield law provides only an immunity from contempt. It necessarily
follows from that conclusion that other sanctions, including those under section
1992, are not precluded. Our statement that ‘. . . contempt is generally the only
effective remedy against a nonparty witness . . .’ was merely an observation that
other sanctions are ineffective, not a conclusion that they are impermissible.
comply with the deposition subpoena under section 1987.1 and to pay sanctions
under section 1987.2.
Here, as explained, Feldsher unreasonably refused to comply with the
deposition subpoena. The record supports the trial court’s implied conclusion
pursuant to the first of its enforcement options that Feldsher opposed the motion to
compel “without substantial justification.” (§ 1987.2.) In support of his motion to
compel, Barta attached a declaration setting forth the basis for the $3,014 in
sanctions: counsel’s expenses and fees covering the time spent in preparing the
motion to compel and accompanying documents along with travel time and the
filing fee for the motion. (Ibid.) Properly exercising its discretion, the court
ordered Feldsher to pay Barta his fees and expenses. (Ibid.)
4. Feldsher’s constitutional rights were not violated.
Finally, Feldsher complains she was denied her constitutional and statutory
right to be heard at the hearing on Person’s motion to compel her to produce the
documents. While initially the court did not afford Feldsher, who represented
herself in propria persona, such an opportunity, it did hear her attorney’s full-
blown argument at the hearing on Feldsher’s motion to reconsider. At that later
hearing, the court allowed Feldsher’s counsel to argue the merits of her opposition
to the original motion to compel, well beyond the issues raised in Feldsher’s
motion for reconsideration. In other words, any deprivation Feldsher suffered at
[Citation.]” (Id. at p. 463, italics added, original italics omitted.) The inevitable
inference from this declaration is that additional sanctions are available, other than
those provided under section 1992, by way of section 2020, subdivision (h).
the first hearing was more than made up by the argument at the second hearing.
Any error in the first hearing was therefore harmless.]]
The order is affirmed. Costs are awarded to respondent.
CERTIFIED FOR PARTIAL PUBLICATION
KLEIN, P. J.