Judge: Armen Tamzarian, Case: 22STCV09591, Date: 2023-01-31 Tentative Ruling

Case Number: 22STCV09591    Hearing Date: January 31, 2023    Dept: 52

Plaintiff Elizabeth Sepulveda’s Motion to Quash or Modify Subpoena for Production of Business Records

            Plaintiff Elizabeth Sepulveda moves to quash or modify the subpoena issued by defendant Wells Fargo Bank, N.A. to deponent Open Path Counseling Center. 

Procedural Defects

            Plaintiff’s motion is procedurally defective.  A party “may, prior to the date for production, bring a motion under Section 1987.1 to quash or modify the subpoena duces tecum.  Notice of the bringing of that motion shall be given to the witness and deposition officer at least five days prior to production.”  (CCP § 1985.3(g).) 

Wells Fargo’s subpoena to Open Path Counseling Center specifies the date for production was September 30, 2022.  (Olsen Decl., Ex. 4.)  Plaintiff filed this motion on November 7, 2022.  Plaintiff did not file any proof of service of the moving papers—not on defendants, the deponent, or the deposition officer.

Privacy Rights

Plaintiff argues this subpoena violate her constitutional privacy rights.  “The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious.”  (Williams v. Superior Court (2017) 3 Cal.5th 531, 552.)  If the objecting party shows all three elements, then the court must balance the need for disclosure against the right to privacy.  (Ibid.)

Plaintiff shows a legally protected privacy interest and a serious intrusion, but not an objectively reasonable expectation of privacy in the circumstances.  Bringing a suit that puts one’s medical or mental condition at issue can waive one’s privacy rights.  (Vinson v. Superior Court (1987) 43 Cal.3d 833, 842 (Vinson).)  “[B]y asserting a causal link between her mental distress and defendants’ conduct, plaintiff implicitly claims it was not caused by a preexisting mental condition, thereby raising the question of alternative sources for the distress.  We thus conclude that her mental state is in controversy.”  (Vinson, supra, 43 Cal.3d at p. 840.)

In these circumstances, records about plaintiff’s physical and mental health are discoverable.  Plaintiff alleges disability discrimination.  Her first amended complaint alleges she “has suffered and will continue to suffer general and special damages, including severe and profound pain and emotional distress, anxiety, depression, headaches, tension, and other physical ailments, as well as medical expenses, expenses for psychological counseling and treatment.”  (FAC, ¶ 33.)  Plaintiff argues she seeks only “garden variety” emotional distress.  But she served a statement of damages on defendants seeking “general damages in excess of $1,000,000” and “special damages in excess of $1,000,000.”  Defendant proposed a stipulation to limit production if plaintiff agreed “to the recovery of only garden variety emotional distress.”  (Olsen Decl., Ex. 8, p. 2.)  By her allegations and claims for damages for severe emotional distress, plaintiff put her mental state in controversy. 

Even if plaintiff’s expectation of privacy were reasonable, the court would conclude defendant’s need for disclosure outweighs plaintiff’s privacy rights.  This discovery is “essential to the fair resolution of the lawsuit” (Look v. Penovatz (2019) 34 Cal.App.5th 61, 73) because it could contain highly probative documents about the source or extent of plaintiff’s emotional distress.  The records could show plaintiff had preexisting conditions or other sources of emotional distress that occurred before or after the alleged discrimination.  Any such evidence would be essential for defendant to rebut plaintiff’s claims that defendant caused her emotional distress damages.

Psychotherapist-Patient Privilege

            Plaintiff also argues these records are protected under the psychotherapist-patient privilege.  Plaintiff has a privilege to refuse to disclose “a confidential communication between patient and psychotherapist.”  (Evid. Code, § 1014.)  “ ‘[C]onfidential communication between patient and psychotherapist’ means information, including information obtained by an examination of the patient, transmitted between a patient and his psychotherapist in the course of that relationship and in confidence by a means which, so far as the patient is aware, discloses the information to no third persons other than those who are present to further the interest of the patient in the consultation.”  (Evid. Code, § 1012.)  “Because only the patient, and not the party seeking disclosure, knows both the nature of the ailments for which recovery is sought and the general content of the psychotherapeutic communications, the burden rests upon the patient initially to submit some showing that a given confidential communication is not directly related to the issue he has tendered to the court.”  (In re Lifschutz (1970) 2 Cal.3d 415, 436.) 

            Plaintiff fails to establish the privilege applies for two reasons.  First, she does not show all the records constitute confidential communications.  The requested documents include prescriptions, doctors’ notes, referrals to other healthcare providers, workers’ compensation claims, and communications between Open Path Counseling Center and defendant Wells Fargo.  Those are not confidential communications between patient and psychotherapist.   

Second, as discussed above, plaintiff put her condition at issue and therefore has waived the privilege.  The privilege does not apply to “a communication relevant to an issue concerning the mental or emotional condition of the patient if such issue has been tendered by: (a) The patient.”  (Evid. Code, § 1016.)  Plaintiff tendered the issue of her mental and emotional condition.  She cannot now claim the psychotherapist-patient privilege for these records.

Sanctions

            Defendants seek $3,000 in sanctions against plaintiff.  “[T]he court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification.”  (CCP § 1987.2(a).)

            Plaintiff made this motion without substantial justification.  Plaintiff filed the motion weeks after the date specified for production.  The motion makes weak arguments on the merits and was not carefully crafted.  The declaration of Michael Juarez Munoz filed in support of the motion gives only a generic description of plaintiff’s efforts to meet and confer.  Defendant, meanwhile, describes what happened at length and shows it offered to take steps toward resolving this dispute, including drafting a proposed stipulated protective order.  (Olsen Decl., ¶ 8.d, Ex. 9.)

The court finds defendant reasonably expended $3,000 in opposing the motion.

Disposition

            Plaintiff’s motion to quash subpoena for medical records is denied.  Plaintiff Elizabeth Sepulveda is ordered to pay defendant Wells Fargo Bank, N.A. $3,000 in sanctions within 20 days.