Judge Cherol J. Nellon, Case Number: 22STCV32918, Date: 2023-10-24 Tentative Ruling

Plaintiff alleges that Defendants falsely accused him of giving one of the Defendants herpes. Defendants allege that Plaintiff did in fact give this woman herpes.

On October 14, 2022, Plaintiff filed his First Amended Complaint (“FAC”) for (1) Defamation, (2) Libel, (3) Slander, (4) Intentional Infliction of Emotional Distress (“IIED”), (5) Fraudulent Concealment, (6) Civil Extortion, and (7) Libel against Defendants Madeline Isabel Cordoba (“Cordoba”), Justin Daily (“Daily”), Reed Aljian (“Aljian”), and Daily Aljian LLP (“Firm”).[1] The first five causes of action are asserted against Defendant Cordoba only. The last two causes of action are asserted against the Attorney Defendants only.

On February 28, 2023, this court granted the Attorney Defendants’ special motion to strike the claims against them.

On March 2, 2023, this court entered judgment in favor of the Attorney Defendants.

On April 11, 2023, this court awarded the Attorney Defendants $56,173 in fees and $2,857.61 in costs, consequent to their victory on the special motion to strike.

On January 16, 2024, this court entered an amended judgment in favor of the Attorney Defendants. This judgment included the award of fees and costs.

On August 22, 2023, Plaintiff filed his Second Amended Complaint (“SAC”) for (1) Defamation, (2) Libel, (3) Slander, (4) Intentional Infliction of Emotional Distress (“IIED”), (5) Civil Code § 1708.85, and (6) Negligence against Defendant Cordoba.

On April 18, 2023, Defendant Cordoba filed her First Amended Cross-Complaint (“Cross-Complaint”) for (1) Sexual Battery, (2) Intentional Misrepresentation, (3) Concealment, (4) Negligent Misrepresentation, (5) Negligence, and (6) IIED against Plaintiff and ROES 1-35.

Plaintiff now moves this court for an order quashing a subpoena addressed to non-party Laboratory Corporation of America. In opposition, Defendant Cordoba seeks sanctions of $5,000.

Defendant Cordoba’s Evidentiary Objections to Exhibits F, P, and T are SUSTAINED. The objection to Exhibit D is OVERRULED. The mere existence of Exhibit D is undisputed and relevant, regardless of the truth of its contents, which is disputed.

(a) If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, 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.

“(a) …in making an order pursuant to motion made under subdivision (c) of Section 1987 or under Section 1987.1, the 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 or that one or more of the requirements of the subpoena was oppressive.”

Civil Code § 1708.85(f)(1) provides that a Plaintiff in a civil proceeding for violation of that section may exclude their true name and “other identifying characteristics” from the court record. More specifically, Civil Code § 1708.85(f)(2)(C) directs that all court orders “shall be worded so as to protect the name or other identifying characteristics of the plaintiff from public revelation.”

On November 3, 2023, Defendant Cordoba served a subpoena that seeks (1) all “documents” and “communications” regarding any testing of a particular patient that resulted in a positive test result for HSV-2, and (2) all “documents” and “communications” regarding any testing of that patient during the time period between February 1, 2022, and July 1, 2023. A copy of the subpoena was lodged with this court in a sealed envelope, pursuant to this court’s order issued December 14, 2023.

Plaintiff objects to the subpoena on the ground that a person who reads the subpoena and reads the record of this lawsuit could figure out that he is the patient identified in the subpoena. He argues that this violates Civil Code § 1708.85(f). That argument was rejected by this court in its ruling issued on October 16, 2023. Plaintiff made a motion for reconsideration of the point on December 14, 2023, which was denied. Plaintiff filed a writ petition with the Court of Appeal, which was denied on February 21, 2024. For the reasons given in those prior rulings, and in the absence of other direction from the Court of Appeal, that argument is rejected.

Second Plaintiff suggests that the subpoena violates scope limits set forth by the California Supreme Court in John B. v. Superior Court (2006) 38 Cal.4^th 1177. In John B., the question was whether a husband (the defendant) had infected his wife (the plaintiff) with HIV, or vice versa. Id. at 1181. As proof of his position, the husband had offered a negative HIV test performed on him six weeks before the wife came up with a positive result. Id. The wife sought discovery of the husband’s medical and sexual history for the past 10 years, which the trial court granted. Id. at 1182. The California Supreme Court reversed, giving plaintiff two options: she could either (a) accept the validity of the negative test and confine her discovery to a period starting six months prior to the negative test or (b) make an offer of proof regarding the accuracy or reliability of the negative test. Id.

In its discussion, the Court advised trial judges to “measure the closeness of the fit between the requested discovery and the allegations of the complaint.” John B., supra, 38 Cal.4^th at 1200. In this case, Plaintiff has produced a negative test from Laboratory Corporation of America. (Plaintiff’s Exhibit D). The record itself does not indicate precisely when the test was undertaken, but the parties seem to agree it was on December 29, 2022. Obviously, Defendant is entitled to investigate and independently confirm the validity of a test that Plaintiff plans to introduce into evidence.

As also explained in John B., supra, 38 Cal.4^th at 1199, the party who places a contention in issue cannot use his own privacy to prevent another party from investigating this contention. And that is the apparent purpose of the subpoena at issue here, which seeks to find out if there were any contradictory or confirming tests from the same laboratory going back 10 months before the negative test and forward six months after. This subpoena is not barred by John B.

This subpoena does not violate either Civil Code § 1708.85 or Plaintiff’s right to privacy. Therefore, the motion to quash is DENIED. Defendant’s request for sanctions is also DENIED.

Plaintiff now moves this court for orders quashing subpoenas addressed to non-parties Midwest Express Clinic, Perry Crawford, Physicians Immediate Care – Chicago, and Kerolos Tawfeek M.D. In opposition, Defendant Cordoba seeks sanctions of $5,000 per motion.

Defendant Cordoba’s Objections to Exhibits A-C, E-G, J-K, M-N, P, and T are SUSTAINED. The objections are otherwise OVERRULED.

The motions are GRANTED, in part. The subpoenas shall be limited to cover only the time period between and including February 1, 2022 and December 29, 2022. No sanctions are awarded.

On November 14, 2023, Defendant Cordoba served notice or a subpoena that seeks (1) all “documents” and “communications” regarding any testing of a particular patient that resulted in a positive test result for HSV-2, and (2) all “documents” and “communications” regarding any testing of that patient during the time period between February 1, 2022, and July 1, 2023. A copy of the subpoena was lodged with this court in a sealed envelope, pursuant to this court’s order issued December 14, 2023.

Plaintiff objects to this subpoena on three grounds: (1) that it violates Plaintiff’s rights under Civil Code § 1708.85, (2) that it violates Plaintiff’s right to privacy, and (3) that Defendant Cordoba failed to comply with the notice provisions contained in Code of Civil Procedure § 1985.3. The first argument the court has already addressed, as laid out above. The second and third arguments are addressed in turn below.

As also explained above, John B. gives trial courts a rule of thumb in cases like this one: until Defendant can show some reason to dispute a negative test,[2] their right to discover medical and sexual history of the Plaintiff is limited to a time period beginning six months before the negative test. Here, the test is dated December 29, 2022. Therefore, following John B., Defendant would be entitled to go back six months from that date, which would be June 29, 2022. However, Plaintiff does not object to letting Defendant go back to February 1, 2022 (see e.g. Motion p. 13:9-11); his objection is to letting Defendant go forward in time to the date of the negative test and beyond. But as already explained, John B. permits discovery up to the date of the negative test.

Counsel must keep in mind that, as suggested by the Court in John B., this temporal limitation may be expanded if Defense can produce some evidence that the negative test is unreliable or inaccurate. It may also be expanded if some other facts appear which take this case beyond the scope of John B. But for now, it is appropriate to confine discovery to the foregoing parameters.

Then there is the issue of proper notice. Code of Civil Procedure § 1985.3(b)(2) provides that a party who seeks personal records of any consumer, even if that consumer is also a party, must give notice to counsel of record no less than 10 days prior to the date of production. That deadline is extended to 15 days if the notice is given by mail. Code of Civil Procedure § 1013(a). Separately, Code of Civil Procedure § 1985.3(b)(3) provides that the notice must be served 5 days before the subpoena is served on the custodian of the records. That deadline is extended to 10 days if the notice is given by mail. Code of Civil Procedure § 1013(a).

The subpoenas have an issue date of November 2, 2023, and a production date of December 11, 2023. They indicate that notice was given by mail on November 14, 2023. The subpoenas do not say when they were served on the custodians. Defendant Cordoba therefore clearly complied with Subdivision 1985.3(b)(2). But because there is no evidence of when the subpoenas were served on the custodians, there is no evidence before the court which would enable it to determine whether Defendant Cordoba complied with Subdivision 1985.3(b)(3).

While Code of Civil Procedure § 1985.3(c) obliges the party seeking the records to provide the witness with proof that they properly served notice on the consumer, it does not require that such proof be provided to the court. Since Plaintiff is the moving party, he presumably bears the burden of proving that Defendant Cordoba failed to comply. He has not done so.

Because Plaintiff concedes that February 1, 2022 is within the relevant time period here, and John B. only halts discovery of records created after the negative test, records from the time period between and including February 1, 2022 and December 29, 2022 are discoverable. Additionally, Plaintiff has failed to show non-compliance with the service requirements set forth in Section 1985.3. Therefore, the motions are GRANTED, in part. The subpoenas shall be limited to cover only the time period between and including February 1, 2022 and December 29, 2022. No sanctions are awarded.

[1] Defendants Daily, Aljian, and Firm hereafter collectively referred to as “Attorney Defendants.”

[2] As also explained above, this implicitly gives Defense the right to explore the circumstances surrounding the test itself.