SCOTT CLINGAN vs MYRON DENNIS VAUGHAN

2024CUPA022312: SCOTT CLINGAN vs MYRON DENNIS VAUGHAN 08/26/2026 in Department 21 Motion to Compel MIKEL MEYER, D.O.’S COMPLIANCE WITH DEPOSITION SUBPOENA FOR THE DEPOSITION TESTIMONY AND PRODUCTION OF RECORDS AND REQUEST FOR SANCTIONS

Tentative Rulings. Parties and counsel appearing for oral argument should address the tentative decision. Parties may submit on the tentative decision by email, with a copy to all other parties in the matter, to courtroom21@ventura.courts.ca.gov before 8:00 a.m. on the day set for the hearing, with a subject line that includes “SUBMISSION ON TENTATIVE”, Case Number, Title and Party. If fewer than all parties submit on the tentative, the hearing will proceed, and the tentative ruling is subject to change. The clerk cannot advise if you should still appear or not. The decision of whether to appear for a hearing is to be made by the parties and their counsel. (Dept. 21 Rules & Procedures, p. 4, § II.I.)

The following is a statement of the Court’s tentative ruling. The Court may adopt, modify or reject the tentative ruling after hearing. The tentative ruling has no legal effect unless and until adopted by the Court.

Motion: Defendant’ Motion to Compel the Deposition of, and Production of Documents by, Non-Party Mikel Meyers, D.O. and Request for Sanctions of $1,110.00 (unopposed)

Tentative Ruling: Pursuant to California Rule of Court, rule 3.1346, the motion to compel was to have been personally served upon the deponent. There is a POS attached to the moving papers indicating personal service on the deponent by Angela Ortiz, an employee of the law firm based out of Long Beach, CA. The POS does not state the date, time, or location of the alleged personal service, but it seems highly doubtful that the employee drove 350 miles north to Angels Camp in Calaveras County to personally serve the deposition. It is for this reason that the motion cannot proceed this day on the merits.

If Defendant represents at the hearing that proof of service was in fact accomplished by way of personal service, and provides the Court with documentation to support this, the Court will proceed to rule on the merits, as discussed below. In the alternative, the Court may continue the hearing to provide Defendant time to provide the proof of service with the Court. However, if defense counsel cannot represent to the Court that proof of service was in fact effected by way of personal service on the deponent, the motion shall be denied.

Defendant’s request for sanctions is denied.

Defense counsel is to give notice within two (2) court days.

2024CUPA022312: SCOTT CLINGAN vs MYRON DENNIS VAUGHAN

Discussion:

It is alleged that defense counsel caused to be personally served upon Dr. Mikel Meyer (hereinafter “deponent”) a subpoena for both his personal appearance at deposition, and his production of related documents within twenty-seven (27) categories. Although the moving papers fail to include any proof of service of the subpoena, on May 6, 2026, the deponent acknowledged in an email to defense counsel receipt of the deposition subpoena, and provided a fee schedule. Thus, it appears that service of the subpoena is a non-issue. Defense counsel provided the deponent with $850, which is the deponent’s customary hourly rate for medical testimony.

There is no issue regarding the propriety of taking the subject deposition. It appears from a review of the meet-and-confer between counsel and deponent that three issues exist: (1) the document production was “extremely burdensome;” (2) the document production may “violate the law” causing the deponent to need time to “consult with legal counsel;” and (3) he “requires at least 10 hours prepaid” before sitting for deposition. Although the deponent should have moved to quash the deposition subpoena, or sought a protective order (see CCP §1987.1(b)), he elected to cancel the deposition just hours before it was scheduled to commence.

“Burdensome production” – Overruled

When a deponent is faced with a subpoena for records which seems daunting or burdensome, the option is not to demand more money or ignore the subpoena. Instead, the deponent is obliged to seek judicial intervention. There are many ways to secure relief. First, “the court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” (CCP §2017.020(a).)

Second, “the court shall restrict the frequency or extent of use of a discovery method if it determines that” the discovery sought is (1) unreasonably cumulative/duplicative; (2) obtainable from some other source that is more convenient, less burdensome, or less expensive; or (3) unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation. (CCP §2019.030(a).) Third, a trial court may issue an order protecting the deponent from “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense” associated with a discovery tool. (CCP §2025.420(b).)

This is not an exhaustive list, but just the most common ones. (See Nativi v. Deutsche Bank Nat'l Trust Co. (2014) 223 Cal.App.4th 261, 316; see also, Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1110.) A trial court’s authority includes such remedial steps as controlling the subjects covered in deposition, the location of the deposition, the matter of inquiry (written vs oral), or whether the discovery occurs at all. Here, as the deponent has not sought court intervention, all objections based on “extremely burdensome” would be OVERRULED.

“Violate the Law” – Sustained

Regarding the concern that the subpoena may violate the law, it seems to this Court that the deponent is most likely referring to CCP §2020.510(c). Pursuant thereto, in pertinent part, “if the business records described in the deposition subpoena are personal records pertaining to a

2024CUPA022312: SCOTT CLINGAN vs MYRON DENNIS VAUGHAN

consumer, the service of the deposition subpoena shall be accompanied either by a copy of the proof of service of the notice to the consumer or by the consumer's written authorization to release personal records.” (CCP §2020.510(c).) This provision expressly requires the proof of service accompany the subpoena. Here, the copy of the subpoena accompanying the motion does not include the notice to consumer, and without said notice it is not possible to determine whether the subpoena is valid, or void ab initio. Failure to comply with statutory requirements invalidates the service so that the deponent is under no duty to produce the records sought by the subpoena. (CCP §1985.6(j).) The notice to consumer attached to the Notice of Taking Deposition does not satisfy the requirements of CCP §2020.510(c). In sum, the deponent’s objection based on the subpoena violating the law is SUSTAINED.

Tender Fees – Overruled

The deposing party must pay a deponent who is required to appear for deposition the same witness fees and mileage payable to witnesses who appear in court. (CCP §2020.230.) The amount payable currently is $35/day plus $.20 per mile. (Govt. Code §68093.) Payment is due at the option of the subpoenaing party either at the time the subpoena is served or at the time of the deposition. (CCP §§ 1986.5, 2020.230.) However, for persons identified as a retained expert for the purposes of trial, there is no fixed fee with mileage. Instead, the deposing party must tender a “reasonable and customary fee” for that expert either with the deposition notice or – more commonly – at commencement of the deposition. (CCP §§ 2034.430(b), 2034.450(a); see True v. Shank (2000) 81 Cal.App.4th 1250, 1256.)

Treating physicians are regarded as percipient witnesses (not “retained for the purpose” of giving expert testimony). Thus, the party designating treating physicians on an expert witness list is not obligated to produce them for depositions. Thus, they must be subpoenaed by the deposing party. (Hurtado v. Western Med. Ctr. (1990) 222 Cal.App.3d 1198, 1203.) Expert witness fees must be paid to depose a treating physician (or other health care practitioner) who is to be asked to express an opinion during the deposition.

This includes questions asking for opinions or facts regarding the patient's past or present diagnosis or future prognosis, or the reasons for a particular treatment decision. (CCP §2034.430(a)(2).) On the flip side, no expert fee need be paid if the doctor is asked only to read “words and symbols contained in the relevant medical record.” (Id.) If the expert's deposition takes longer than anticipated, the deposing party must pay the balance of the expert's fee within 5 days after receipt of an itemized statement from the expert. (CCP §2034.450(c).)

Any fee charged by the expert in excess of what the statute allows, or what the Court deemed to be reasonable, remains the responsibility of the party calling the witness at trial for opinions. (Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 300-301.)

Here, it appears from the moving papers that Defendant is seeking to ask the treating doctor deponent questions and categories of questions that would fall within the realm of an expert witness, thereby warranting the payment of the expert witness fee. However, Defendant is correct that Defendant need only pay the expert witness for the time spent at the deposition, from the time noticed in the deposition subpoena, or from the time the expert arrives at the deposition, until the time the expert witness is dismissed from the deposition. Defendant is not required to

2024CUPA022312: SCOTT CLINGAN vs MYRON DENNIS VAUGHAN

pay the witness for preparation time. The deponent’s objection to the deposition based on a demand for payment for preparation time is OVERRULED.

Service of Motion – Not established

Pursuant to California Rule of Court, rule 3.1346, the motion to compel was to have been personally served upon the deponent. There is a POS attached to the moving papers indicating personal service on the deponent by Angela Ortiz, an employee of the law firm based out of Long Beach, CA. The POS does not state the date, time, or location of the alleged personal service, but it seems highly doubtful that the employee drove 350 miles north to Angels Camp in Calaveras County to personally serve the deposition. It is for this reason that the motion cannot proceed this day on the merits unless Defendant can provide the Court with a proof of service confirming personal service stating the date, time, place, and person served.

Sanctions Against Dr. Meyers, Plaintiff, and Plaintiff’s Counsel – Denied

Defendant is seeking sanctions based on CCP 2023.030(a). To begin, Defendant has not shown proper service of the motion on the deponent or compliance with CCP §2020.510(c). Thus, the request for sanctions against the deponent fails as a matter of law. As to sanctions against Plaintiff and Plaintiff counsel, Defendant has not shown any misuse of the discovery process as to this witness. The deponent is a non-party witness and is not an expert retained by Plaintiff. Defendant has not shown any basis for sanctions.

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