Judge Christian R. Gullon, Case Number: 23PSCV01643, Date: 2023-12-05 Tentative Ruling

Judge: Christian R. Gullon, Case: 23PSCV01643, Date: 2023-12-05 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, attorneys are advised to check this website to determine if any changes or updates have been made to the tentative ruling.

Counsel may submit on the tentative rulings by calling the clerk in Dept. O at 909-802-1126 before 8:30 the morning of the hearing. Submission on the tentative does not bind the court to adopt the tentative ruling at the hearing should the opposing party appear and convince the court of further modification during oral argument.

The Tentative Ruling is not an invitation, nor an opportunity, to file any further documents relative to the hearing in question. No such filing will be considered by the Court in the absence of permission first obtained following ex-parte application therefore.

Plaintiff's Medical Providers, Or, In The Alternative, For Protective Order, And Request For Reasonable Sanctions is MOOT because Defendants appear amenable to limiting the scope of the subpoenas and placing a protective order. No monetary sanctions are imposed.

This is a personal injury case. Plaintiff JORGE LOYOLA, an individual, by and through his guardian ad litem, SOLEDAD LOPEZ alleges the following against Defendants POSITIVE BEHAVIOR STEPS CORPORATION(“PBS”); SAN GABRIEL POMONA REGIONAL CENTER (“Pomona Regional”); MICHAEL PENGSON PEDROSA (“Pedrosa”): Plaintiff, who is developmentally disabled, non-verbal, and autistic, is a client of Defendants PBS and Pomona Regional. Pedrosa is Plaintiff’s caretaker. There are two incidents at issue. The first walk happened on 5/18/2020 wherein Pedrosa “became abusive (either verbal and/or physical) towards Plaintiff, such that Police Officers were involved and escorted PEDROSA and Plaintiff back to Plaintiff’s house.” (Second Amended Complaint (SAC) ¶20.) The second walk happened the day after on 5/19/2020 wherein, after returning three hours later, Plaintiff was crying about his right arm, which was later diagnosed with a broken arm. (¶22-28.) The basis of the complaint is that Defendants “either negligently and/or intentionally, abused and/or neglected the Plaintiff, and such negligence, abuse, and/or neglect, was the actual, proximate, and substantial cause of Plaintiff’s harm.” (¶29.)

On October 3, 2023, Plaintiff filed its FAC asserting the following 6 causes of action (COAs):

1.     Negligence

2.     Negligent hire, supervision, and retention

3.     Negligence per se in violation of mandatory duties under CANRA the child abuse and neglect reporting act (penal code §§
11164, et seq.)

4.     Assault

5.     Battery

6.     Harassment in violation of Unruh civil rights act (civil code § 51)

On November 7, 2023, PBS filed the instant demurrer x MTS, which the court sustained the demurrer and granted in part the MTS.

On January 4, 2024, Plaintiffs filed their SAC, reasserting the same COAs against the same Defendants.

On March 11, 2024, a Stipulation was filed and signed allowing Plaintiff to file a third amended complaint (3AC). The 3AC (p. 11 of 27 of PDF) is based upon negligence and harassment in violation of Unruh Civil Rights Act (total of 4 COAs).

On March 14, 2024, Defendant PBS filed its ‘Opposition Of Defendant Positive Behavioral Steps Corporation To Plaintiff’s Motion To Quash Deposition Subpoenas To Plaintiff's Medical Providers, Or, In The Alternative, For Protective Order And Request For $1,527.00 In Sanctions.’

On March 21, 2024, Pedrosa filed a ‘Notice Of Joinder To Defendant Positive Behavioral Steps Corporation’s Opposition To Plaintiff’s Motion To Quash Subpoenas To Plaintiff’s Medical Providers, Or In The Alternative, For Protective Order And Request For $1,527.00 In Sanctions.’

Plaintiffs bring forth the motion pursuant to California Code of Civil Procedure §1987.1. In turn, the statutes provides in pertinent part, the following:

If a subpoena requires the attendance of a witness or the production of books, documents, or other things ... at the taking of a deposition, the court, upon motion reasonably made by the party ... may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon such 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 parties, the witness, or the consumer from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.

Plaintiffs will move for an order quashing a subpoenas, issued by Defendant PBS for production of business records to the following medical providers:

The subpoenas seek "any and all" documents and records irrespective of physical, mental, and/or psychological condition.

Plaintiffs make the motion on the grounds of privacy. (See 2:6-9[“Although Defense is entitled to some records, it is certainly not entitled to the entirety of Plaintiff's file. Defense has failed to meet its burden in showing a compelling interest to the production of Plaintiff's complete medical file. Plaintiff has a reasonable expectation to privacy to such records.”].)

The California Supreme Court in Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 30-40 set forth a three-pronged test that a party asserting a right against discovery must establish:

(2) there is a “reasonable expectation of privacy in the circumstances;” and

The burden is “on the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion, and against that showing [a court] must weigh the countervailing interests the opposing party identifies.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 557, emphasis and underline added; see also Hill, supra, 7 Cal.4th at p. 37 [the invasion of privacy must be “sufficiently serious in [its] nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right.”], emphasis and underline added) The Williams court clarified, and disapproved of numerous cases holding otherwise, that a defendant need show a compelling need only if the information sought would invade “interests fundamental to personal autonomy.” (Id. at p. 557, emphasis and underline added.)

Here, it is indisputable that the constitution right of privacy applies to a party's medical records. (Motion p. 3, citing John B. v. Sup. Ct. (2006) 38 Cal. 1177.) But Plaintiffs have not advanced an argument that Plaintiff has a reasonable expectation of privacy in said records when his injuries are the basis of the lawsuit.

That said, it appears the motion is moot as Plaintiffs concede Defendant PBS is entitled to records and PBS has agreed to “seek only records from providers identified by Plaintiff as treaters of his alleged injuries in this case” and has “agreed to limit the time scope to three years and offered to limit the scope to injuries and pain and suffering to the right arm and discussions regarding abuse or reporting. PBS was also agreeable to a protective order.” (Opp. p. 6:13-18.)

To the extent that Reply addresses the above, Plaintiffs characterize Defendant’s meet and confer efforts as “insincere” (Reply p. 5) as efforts were made after the motion was filed. But whether concessions were made before or after is inapposite to the merits of the motion.

Based on the foregoing, as Defendant is amenable to tailoring the subpoenas, the motion is MOOT. No monetary sanctions are imposed.

[1] The right to privacy is not itself a privilege, the latter of which carries a different burden mechanism. (See Evidence Code section 900 et seq. for exclusive statutory source of recognized privileges.)