Department 58

. . .

Hearing Date: May 22, 2023

Case Name: Justin Wicker v. Troy Lee Browning, et al.

Case No.: 19STCV33790

Matter: Motion to Compel Further Discovery Responses

Moving Party: Defendant/Cross-Complainant Troy Lee Browning

Opposing Party: Plaintiff/Cross-Defendant Justin Wicker

Tentative Rulings: Defendant Troy Lee Browning’s motion to compel further discovery responses to Requests for Production of Documents, Set Five, from Plaintiff Justin Wicker is denied.

Procedural and factual background.

This is an action for partition of real property between alleged co-habitants and joint owners of a residential property. On September 20, 2019, Plaintiff Justin Wicker (“Wicker”) sued Defendant and Cross-complainant Troy Lee Browning (“Browning”) for breach of contract, partition of real property and negligent misrepresentation. On July 9, 2020, Browning filed his cross-complaint against Wicker for breach of fiduciary duty, partition of real property, conversion, intentional infliction of emotional distress, and false imprisonment.

On November 9, 2021, counsel for Browning emailed counsel for Wicker attempting to schedule Wicker’s deposition. Counsel for Wicker responded that Wicker had recently suffered severe injuries from a violent attack and needed to obtain clearance from his healthcare provider before scheduling his deposition.

Despite Wicker’s response regarding his attack and resulting injuries, Browning repeatedly tried to schedule Wicker’s deposition over the next several months. Browning sent two emails in April of 2022 accusing Wicker of stalling and acting in bad faith. Browning again attempted to schedule Wicker’s deposition in September of 2022. Wicker responded that he was still waiting on clearance from his physician. Nonetheless, on September 28, 2022, Browning noticed Wicker’s deposition.

On October 18, 2022, the Court held a Status Conference. Counsel for Wicker stated he had recently requested documentation from Wicker’s healthcare providers corroborating Wicker’s inability to testify and was waiting on a response. The Court urged the parties to work together to resolve the issue and avoid making an issue out of Wicker’s medical records.

Shortly thereafter, Wicker provided Browning a doctor’s note which described Wicker’s condition as fragile and suggested Wicker avoid testifying for six months. However, Browning refused to withdraw his deposition notice and again accused Wicker of stalling. Wicker responded by formally objecting to the deposition notice. Wicker also offered to continue trial for six months as an accommodation. Browning responded by accusing Wicker of lying about his inability to testify and threatening to move to disqualify Wicker as a witness. Wicker responded by threatening to move for a protective order. Wicker also provided an additional doctor’s note supporting his request to stay his deposition for six months.

The parties were unable to agree on a continuance. Wicker moved for a protective order, which Browning opposed. On December 8, 2022, the Court granted Wicker’s motion. The Court ordered that Wicker not be deposed until June 1, 2023.

Approximately six weeks prior to the hearing on Wicker’s motion for a protective order, Browning served Requests for Production of Documents, Set Five (“RPDs”) on Wicker. The request sought all of Wicker’s medical records from 2012 to the present, and all documents evidencing that Wicker cannot testify at deposition or trial. One week after the Court ordered that Wicker not be deposed until June 1, 2023, Browning moved to compel Wicker’s responses to RPDs, arguing Wicker had waived any objections by failing to provide timely responses. On January 11, 2023, the Court denied Browning’s motion as moot and denied Browning’s request for sanctions, finding Wicker had inadvertently served responses to the wrong address.

Wicker’s initial responses included privacy objections to each of Browning’s RPDs. On February 1, 2023—three weeks after the Court resolved the issues regarding Wicker’s medical condition and inability to testify—Browning demanded further responses. Wicker responded by asking Browning to stipulate to a protective order regarding confidentiality, arguing Browning’s requests for Wicker’s private medical information were unrelated to the merits of this case. Wicker also provided proof that his mother had been granted power of attorney over him. Browning, however, refused to stipulate to a protective order. Wicker urged Browning to reconsider a protective order. Browning again refused and threatened to file this motion to compel.

On March 1, 2023, Browning filed this motion to compel Wicker’s further responses to RPDs, Set Five, along with a request for $3,764.52 in sanctions. On March 16, 2023, Wicker served supplemental responses, which included a list of Wicker’s current medications and a video of Wicker having a seizure after viewing the sentencing of his attacker. Wicker then filed an opposition, arguing this motion is moot and unnecessary. Nevertheless, on May 12, 2023, Browning filed a reply, accusing Wicker of perjuring himself and overstating his medical condition.

Legal Standard.

“On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply:

(1) A statement of compliance with the demand is incomplete.

(2) A representation of inability to comply is inadequate, incomplete, or evasive.

(3) An objection in the response is without merit or too general.”

(Code Civ. Proc., § 2031.310(a).)

“Except as provided in subdivision (j), the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2031(h).)

Discussion.

Browning has moved to compel Wicker to provide further responses to RPDs, Nos. 83-86.

RPD No. 83 demands: “ALL PLAINTIFF’S medical records, including, but not limited to, physician, physical therapy, psychological, psychiatric, surgical, etc. for the period of 2012 through the present. This item is intended to be inclusive and broad as possible.” (Shirdel Decl. 3/1/23, Ex. 1.)

RPD No. 84 demands: “All DOCUMENTS that evidence any treatment PLAINTIFF has received in response to the attack he suffered. ‘Any treatment’ includes but is not limited to any medical, physical, mental, or other treatment, whether it is physical therapy, counselor sessions, medication, etc. This item is intended to be as inclusive and broad as possible. ‘The attack he suffered’ refers to the physical incident Justin Wicker was involved in on or about July 9, 2021.” (Shirdel Decl. 3/1/23, Ex. 1.)

RPD No. 85 demands: “All DOCUMENTS that evidence any source and amount of income PLAINTIFF has received since July 9, 2021. This includes all items of income, including wages, government assistance (disability payments, employment payments, etc.), family help, donations, investments, rental income, etc. This item is intended to be as inclusive and broad as possible.”

RPD No. 86 demands: “All DOCUMENTS that EVIDENCE the reason why YOU believe YOU cannot testify at a deposition or a trial in this matter.”

Browning argues that further responses are warranted because Wicker has put his medical condition at issue. According to Browning, Wicker is either lying in his responses when he states no medical documentation exists, or Wicker has perjured himself by claiming he suffered brain damage from his attack.

In opposition, Wicker argues his medical condition is not at issue. Wicker points out that neither his complaint, nor Browning’s cross-complaint, makes allegations for which Wicker’s medical history would likely produce admissible evidence. Wicker argues his injuries from being attacked were only germane to the protective order this Court already ruled on. According to Wicker, Browning is trying to relitigate the issue.

Generally speaking, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc. § 2017.010.)

However, “[t]he 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. The court may make this determination pursuant to a motion for protective order by a party or other affected person.” (Code Civ. Proc. § 2017.020.)

Browning’s requests are overbroad and not relevant to the subject matter.

In this case, the Court issued a protective order staying Wicker’s deposition until June 1, 2023. The issue of whether Wicker is able to testify—along with the underlying questions regarding his medical history—have been resolved for now. Should Wicker still be unable to testify after June 1, 2023, limited discovery regarding his current medical condition might be relevant – if a voluntarily provided proof of his medical condition is not furnished. Until then, however, Browning’s motion is not reasonably calculated to lead to the discovery of admissible evidence regarding either party’s claims in this action.

Browning’s motion to compel further responses is overbroad, not related to the subject matter of the action, and premature. Given the Court’s prior order, the requests appear calculated to harass. RPDs Nos. 83, 84, and 86 directly seek Wicker’s medical information and history. As noted, this discovery relates to an issue that has been decided—at least until June 1, 2023. Regarding RPD No. 85, which demands documents “that evidence any source and amount of income PLAINTIFF has received since July 9, 2021,” Wicker attests in his supplemental responses that he has produced all documents responsive to this request. Browning provides no reason to disbelieve Wicker. Furthermore, considering July 9, 2021 is the date of Wicker’s attack, this request also appears to be directed at Wicker’s ability to testify.

Until June 1, 2023, Browning fails to clear the first hurdle of establishing RPDs, Set Five, request discoverable information. Browning’s motion to compel is denied on this basis alone.

Physician-Patient Privilege

If Wicker claims he is unable to testify after June 1, 2023, Browning must still overcome Wicker’s right to privacy regarding his medical and financial records, as Wicker timely objected to Browning’s RPDs. And if Browning again moves for medical records, he will also have to overcome potential assertion of physician-patient privilege.

As codified in Evidence Code sections 990 et seq., a party’s confidential communications with his or her physician are privileged. There can be “no discovery of materials which are privileged.” (Palay v. Superior Court (1993) 18 Cal.App. 4^th 919, 925.)

As explained by our Supreme Court, “[t]he whole purpose of the [physician-patient] privilege is to preclude the humiliation of the patient that might follow disclosure of his ailments.” (City & County of San Francisco v. Superior Court (1951) 37 Cal. 2d 227, 232.) In addition, the privilege “creates a zone of privacy” whose additional purpose is to “encourage the patient’s full disclosure to the physician of all information necessary for effective diagnosis and treatment of the patient.” (Board of Medical Quality Assurance v. Gheradini (1979) 93 Cal. App. 3d 669, 678-679; disapproved on other grounds, Williams v. Superior Court (2017) 3 Cal. 5^th 531, 557, fn. 8 (Williams).)

There is no physician-patient privilege, however, if a party tenders the issue of their medical condition. (Evid. Code § 996(a).)

Here, Browning argues Wicker has tendered the issue of his medical history—and thus waived privilege to his medical records—by requesting a six-month stay of his deposition. As a preliminary matter, it’s not clear that Wicker has tendered any part of his medical history. Courts have recognized that parties only tender their medical history through their claims and allegations. (Koshman v. Superior Court (1980) 111 Cal.App.3d 294.) Wicker’s claims against Browning have nothing to do with Wicker’s medical condition, and Browning offers no authority for the proposition that Wicker has tendered his medical history merely by requesting a six-month stay of his deposition.

Moreover, California Courts have long recognized that a tender of privileged information is limited to the issue in dispute. (Britt v. Superior Court (1978) 20 Cal.3d 844, 864 [“The patient thus is not obligated to sacrifice all privacy to seek redress for a specific mental or emotional injury; the scope of the inquiry permitted depends upon the nature of the injuries which the patient-litigant himself has brought before the court.”].) However, Browning’s RPD, No. 83 seeks all of Wicker’s medical records going back as far as 2012. Even if Wicker has tendered his injuries related to his 2021 attack, Wicker has done nothing to tender his entire medical history from 2012 to the present.

Right to privacy

In addition to physician-patient privilege, the right of privacy is guaranteed by Article I, Section I of the California Constitution as an “inalienable right.” (White v. Davis (1975) 13 Cal.3d 757, 773.) “Relevancy alone does not justify obtaining private records of a party to litigation.” (Heda v. Superior Court (1990) 225 Cal.App.3d 525, 528.) “The zone of privacy created by this provision extends to the details of a patient’s medical history.” (Id. at 527.) “The right is not absolute, however, and may be outweighed by the legitimate interests of another party to a lawsuit.” (Ibid.)

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. (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35-37.) “The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 552.)

Here, Wicker has established the Hill factors. Wicker has established a legally protected privacy interest—his medical records. Wicker has also established an expectation of privacy, as neither parties’ claims relate to Wicker’s injuries. And Wicker has established a threatened intrusion, as Browning seeks to discover Wicker’s medical records from 2012 to the present without a stipulated protective order regarding confidentiality. Therefore, the burden is on Browning to establish a legitimate and countervailing interest for the disclosure.

However, the privacy considerations are only applicable if Wicker is unable to sit for his deposition after June 1, 2023. And even then the Court must consider what has already been produced, the scope of the intrusion into private matters, and the necessity for the intrusion. Wicker has already produced some discovery responsive to RPDs, Set Five—i.e., evidence for why he cannot testify until June 1, 2023. Wicker has produced two doctor’s notes suggesting he refrain from trial-related activities for six months, a list of his medications, and a video of him having a seizure. (Bitton Decl. 5/9/23, Exs. 2, 10.) If Wicker still refuses to sit for his deposition after June 1, 2023, further documentation regarding Wicker’s medical condition after that date may become relevant. A protective order would ordinarily be granted as a matter of course. The Court also retains its power to issue an evidentiary sanction—such as precluding Wicker from testifying on his own behalf at trial—if Wicker’s deposition is never taken. (See Code Civ. Proc. § 2025.450(h).) Until then, Wicker’s medical records are not discoverable and therefore the Court need not balance Wicker’s interests in privacy against the interests in disclosure.

Browning’s motion to compel further responses to RPDs, Set Five, is therefore denied. Accordingly, Browning’s request for sanctions is also denied.

Code of Civil Procedure section 2031, subdivision (h) provides that the Court “shall” impose sanctions against any party who unsuccessfully brings a motion to compel, unless the motion was substantially justified. Here, Browning’s motion lacked substantial justification. He disregarded the Court’s order. During the Status Conference on October 18, 2022, the Court urged the parties to resolve the issue regarding Wicker’s deposition informally and advised the parties not to make issue of Wicker’s medical records. Nonetheless, six days later Browning propounded RPDs, Set Five, seeking Wicker’s medical records going back as far as 2012. On December 8, 2012, the Court ordered a stay on Wicker’s deposition, effectively making Wicker’s medical records a non-issue. Nonetheless, Browning proceeded to file a motion to compel initial responses to his demand for medical records from Wicker, and this motion to compel further production of Wicker’s medical records.

Had Wicker sought them, the Court would have considered imposing sanctions against Browning under section 2031.310(h). Wicker, however, did not request sanctions, or furnish a declaration attesting to the fees spent in opposing the motion. Accordingly, the Court will not impose discovery sanctions against Browning.

Conclusion.

Defendant Troy Lee Browning’s motion to compel further discovery responses to Requests for Production of Documents, Set Five, from Plaintiff Justin Wicker is denied.