Judge: Cherol J. Nellon, Case: 21STCV43972, Date: 2023-04-13 Tentative Ruling

Case Number: 21STCV43972    Hearing Date: April 13, 2023    Dept: 28

Plaintiff Hilda Pena's Motion to Quash Subpoena for Records Having considered the moving, opposing and replying papers, the Court rules as follows. BACKGROUND On December 1, 2021, Plaintiffs Hilda Pena (“Hilda”) and Shirley Lizbeth HernandezPena (“Shirley”) filed this action against Defendants Numark Transporation, Inc. (“Numark”) and Andre L. Swilley (“Swilley”) for motor vehicle negligence. Plaintiffs later amended the complaint to include Defendants Traverse Resources, LLC (“TR”) and Thomas Jimenez (“Jimenez”). On March 21, 2022, Numark filed an answer. On February 6, 2023, Hilda filed a Motion to Quash Subpoena for Records to be heard on April 13, 2023. On March 30, 2023, and again on April 5, 2023, Numark filed an opposition. On April 6, 2023, Hilda filed a reply. Trial is currently scheduled for October 4, 2023. PARTY’S REQUESTS Hilda requests the Court quash the subpoena for records served on Ali Hadadz, MD (“Hadadz”) and San Fernando Mental Health (“SFMH”) and impose $3,311.65 in sanctions on Numark and Swilley (“Opposing Defendants.”) Numark requests the Court deny the motion and impose sanctions totaling $3,080.00 on Plaintiffs. LEGAL STANDARD Code of Civil Procedure §1987.1: (a) If a subpoena requires the attendance of a witness or the production of books, documents, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person. (b) The following persons may make a motion pursuant to subdivision (a): (1) A party. (2) A witness. (3) A consumer described in Section 1985.3. (4) An employee described in Section 1985.6. (5) A person whose personally identifying information, as defined in subdivision (b) of Section 1798.79.8 of the Civil Code, is sought in connection with an underlying action involving that person’s exercise of free speech rights. Code of Civil Procedure § 1985.3(b) outlines that a subpoena for production of personal records must be served on the consumer whose records are sought; it must be served at least five days prior to service upon the custodian of records. This subpoena must be accompanied by a notice indicating records sought, how to object, and that an attorney should be consulted, although this may be included in the Notice of Deposition served on consumer. CCP § 1985.3(e). Section (g) further clarifies: “No witness or deposition officer shall be required to produce personal records after receipt of notice that the motion [to quash] has been brought by a consumer, or after receipt of a written objection from a nonparty consumer, except upon order of the court in which the action is pending or by agreement of the parties, witnesses, and consumers affected.” As a general rule, all unprivileged information that is relevant to the subject matter of the action is discoverable if it would itself be admissible evidence at trial or if it appears reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc. § 2017.010; Schnabel v. Superior Court. (1993) 5 Cal.4th 704, 711.) When the information sought to be discovered impacts a person’s constitutional right to privacy, limited protections come into play for that person. (Shaffer v. Superior Court (1995) 33 Cal.App.4th 993, 999.) The protections cover both a person’s personal and financial matters. (Id.) The court must balance competing rights — the right of a litigant to discover relevant facts and the right of an individual to maintain reasonable privacy — in determining whether the information is discoverable. (Id.) For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.) DISCUSSION Motion to Quash Hilda alleges that, as a result of the subject incident, Hilda sustained injuries to her neck, back, shoulders, right arm, right forearms, right hand and head. Opposing Defendants issued a deposition subpoena for records to Hadadz and San Fernando Mental Health for “any and all psych records,” all documents relating to various medical records, and billing records. There is no limitation as to time placed on the subpoena. Hilda requested that Opposing Defendants withdrawn the subpoena for psych records, as Hilda is not making a claim for emotional distress or any other mental health claim. Opposing Defendants argue that these records are related to Hilda’s damages, as they pertain to pain and suffering, as well as alleged anxiety and emotional distress associated with an auto accident claim. Hilda states she is not making a claim beyond “garden variety” anxiety and emotional distress associated with an auto-claim, and that any treatment by a separate psychologist was to obtain clearance for a spinal cord stimulator. The Court finds that Hilda has not claimed any emotional or mental damages beyond the general distress associated with an automobile accident. The mere fact someone indicates they were distressed following a car accident does not allow another party to invade their privacy and subpoena medical records without limitation. There are no clear allegations of any neurological injuries, depression, anxiety disorder or anything of the sort arising out the incident. Therefore, the Court does not find that any potentially relevant evidence outweighs Plaintiff’s right to privacy in medical treatment. This is only solidified by the fact that there are no limitations as to scope or time. As currently written, Opposing Defendants could obtain records from over 10 years ago about a completely unrelated psychological condition. Numark argues that this is merely an attempt by Plaintiffs to obstruct Numark’s investigation into Plaintiff’s pre-existing mental health as it relates to the efficacy of the spinal cord stimulator, the recommendation thereof and the biopsychosocial connection with her purported perceived pain. Numark also states that Hilda has a history of anxiety and depression. However, as stated above, Hilda is not making a claim for emotional or mental damages beyond typical general damages. Numark notes that Hilda was taking an anti-depressant prior to the incident and took one at approximately 7 p.m. the day before the accident. Numark argues that Hilda’s pre-existing mental disposition is intrinsically connected with to the recommendation for a SCS implant and her perception of pain. One scientific study stated that pre-surgical psychological factors that may impact the need and helpfulness of the SCS implant include depression and anxiety. However, neither deponent was involved in the approval to the SCS implant—only clinical psychologist, Shivani Kumar, MD, was. The Court finds it inappropriate and unduly invasive for Numark to effectively engage in a fishing expedition into Hilda’s mental health history in order to determine the usefulness of an implant when Numark could simply subpoena records from the prescribing doctor. Such records would likely discuss any and all of the potential caveats related to Hilda's mental health. There is no explanation given as to why Kumar’s records are not satisfactory in evaluating Hilda’s SCS implant. The Court grants the motion, finding the subpoena overbroad, unduly invasive and unlikely to result in the discovery of relevant evidence. Sanctions The Court awards sanctions against Numark under CCP § 1987.2. Numark opposed the motion to quash without substantial justification, as explained above. Hilda requests sanctions totaling $3,311.65, based upon 6.5 hours of attorney’s work, at a rate of $500.00 per hour, and one $61.65 filling fee. Time spent is based upon 4 hours to prepare the motion and 2.5 hours to reply to any opposition. The Court grants sanctions totaling $1,061.65, based on 4 hours of attorney’s work at a reasonable rate of $250.00 per hour. CONCLUSION Plaintiff Hilda Pena's Motion to Quash Subpoena for Records is GRANTED. The subject subpoenas are deemed quashed. Plaintiff Hilda Pena's Request for Sanctions is GRANTED. Numark is ordered to pay Hilda and Hilda’s counsel $1,061.65 in sanctions within 30 days of the hearing on the motion. Moving party is ordered to give notice of this ruling. Moving Party is ordered to file the proof of service of this ruling with the Court within five days. The parties are directed to the header of this tentative ruling for further instructions.