Judge Audra Mori, Case 21STCV43906 2022-08-22 Tentative Ruling

Plaintiff Pricilla Diana McHam (“Plaintiff”) filed this action against Defendant Zhigang Zhang (“Defendant”) for damages arising from a motor vehicle accident.

On June 24, 2022, Defendant served a deposition subpoena for production of business records on Nubar Boghossian, M.D. (“Dr. Boghossian”) requesting medical records pertaining to Plaintiff. Plaintiff moves to quash the subject subpoena served on Dr. Boghossian. The motion is unopposed.

Plaintiff contends that her primary damages claims concern her neck, back, and shoulder. Plaintiff asserts that during her deposition on June 6, 2022, she disclosed that Dr. Boghossian was her oncologist. Defendant then issued the subpoena on Dr. Boghossian seeking all of Plaintiff’s medical records. Plaintiff contends, however, that the subpoena was served on the wrong law firm, not Plaintiff’s counsel. Further, Plaintiff contends the subpoena seeks unrelated medical records that are not relevant to this action, and that the subpoena invades her right to privacy.

By filing a personal injury action, plaintiffs place in issue their past and present physical and/or mental conditions related to the injury sued upon. All medical and/or psychological records relating to the claimed injuries are thus discoverable. Evidence Code §§ 996, 1016; Britt v. Superior Court (1978) 20 Cal.3d 844, 862–864. Normally, information about medical conditions entirely different from the injury sued upon is beyond the scope of discovery. However, medical records pertaining to an unrelated condition are discoverable on a showing of “good cause” if the condition is relevant to the issue of proximate causation. (Evidence Code §999; Slagle v. Superior Court (1989) 211 Cal.App.3d 1309, 1314–1315 [good cause shown by info that plaintiff was blind 6 months before accident].)

In this case, Defendant’s deposition subpoena for production of business records demands the following records from Dr. Boghossian:

Any and all records, X-RAYS, MRI FILMS, CT SCAN FILMS, charts, reports, correspondence and files indicating examinations, dates of examinations, testing, diagnosis, prognosis, all records of history, treatments of care, including but not limited to: x-ray reports, laboratory tests and results thereof, diagnostic tracing, memoranda, notes, billings, and payments made, appointment logs, sign-in sheets, EMG reports, EMG test results, EMG test strip graphs, any other form of hard copy EMG test results, EEG reports, EEG test strip graphs, any other form of hard copy of EEG test results, myelograms, tomograms, prescriptions, patient profiles and any and all records pertaining to the medical treatment of Priscilla McHam, born on UNK, SS# UNK, from any and all dates.

The proof of service attached to the subpoena shows that it was served on Tabibnia Law Firm, 6454 Van Nuys Boulevard, Suite 150, Van Nuys, CA 91401. However, Plaintiff is not represented by the Tabibnia Law Firm in this matter. Rather, Plaintiff is represented by the Law Office of Tabone, APC, located at Van Nuys Boulevard, Suite 210, Van Nuys, CA 91401. Thus, the subpoena was not properly served on Plaintiff. (CCP § 1985.3(b)(1) [requires that copies of the subpoena, supporting affidavit, and notice to consumer be served on the consumer personally or, if he or she is a party, to his or her attorney of record.].) Further, although Plaintiff provides the subpoena was delivered to Plaintiff’s counsel’s office on or about July 18, 2022, when someone from the Tabibnia Law Firm dropped off the subpoena that was mistakenly delivered to their office, Defendant failed to comply with CCP § 1985.3(b)’s timing requirements for service of the subpoena and notice to consumer on Plaintiff. Failure to comply with CCP § 1985.3 is sufficient basis for a witness to refuse to produce the personal records sought by the subpoena. (Sasson v. Katash (1983) 146 Cal. App. 3d 119, 125.)

Not only did Defendant fail to properly serve the subpoena and notice to consumer on Plaintiff, but the subject subpoena demands all of Dr. Boghossian’s records, files, and documents for Plaintiff without limitation to scope or time. This would necessarily include information regarding any treatment Plaintiff has ever received for any condition she may have had whether related to the subject injuries claimed in this action or not. As noted above, there are times when preexisting conditions are of such relevance to the issues presented that evidence relating to these conditions is discoverable. Defendant, however, does not oppose the motion, and thus, fails to establish any preexisting conditions Plaintiff may have had that are directly relevant to her injuries claimed in this lawsuit. Moreover, it is unclear why Plaintiff’s complete medical history and files from Dr. Boghossian, without any limitation to time, are discoverable in this action. Therefore, Defendant does not show that the records demanded by the subpoena are so relevant as to outweigh Plaintiff’s right to privacy.

Based on the foregoing, Plaintiff’s motion to quash Defendant’s subpoena served on Dr. Boghossian is granted.

The court notes that Plaintiff’s counsel’s declaration states that Plaintiff is seeking sanctions for the cost of drafting the motion and having to appear at the hearing. However, Plaintiff’s Notice of Motion does not comply with CCP § 2023.040, which states that “[a] request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.” Further, Plaintiff fails to specify what sanctions or amounts are sought for the instant motion.

Hon. Audra Mori

Judge of the Superior Court