Judge: David A. Rosen, Case: 21STCV28044, Date: 2023-05-19 Tentative Ruling
Case Number: 21STCV28044 Hearing Date: May 19, 2023 Dept: E
Hearing Date: 05/19/2023 – 8:30am
Case No: 21STCV28044
Trial Date: 10/09/2023
Case Name: JOHN DOE, a minor by and through his Guardians Ad Litem, Whitney A
Wade and Marianne Krawczyk v. FIVE ACRES – THE BOYS’ AND GRILS’ AID SOCIETY OF
LOS ANGLES COUNTY, a California corporation; and DOES 1-100 inclusive
TENTATIVE
RULING ON MOTION TO COMPEL DEPOSTION OF PMK and REQUEST FOR PRODUCTION OF
DOCUMENTS
Moving Party: Plaintiff, John Doe
Responding Party: No Opposition Submitted.
Moving Papers: Notice/Motion; Johnson Declaration;
Separate Statement; Proposed Order;
Opposing Papers: N/A
Reply Papers: No Reply submitted
Proof of Service Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Correct Address (CCP §1013, §1013a, §1013b): Ok
RELIEF REQUESTED
Plaintiff,
John Doe, moves for an order to compel deposition of person(s) most
knowledgeable from Five Acres and request for production of documents. This
Motion is brought pursuant to Code of Civil Procedure sections 2025.41, 2031.310
et seq.
Plaintiff alleges it has
satisfied the requirement to make “a reasonable and good faith attempt” to
informally resolve these disputes. See, Declaration of Amanda E. Johnson,
(“Johnson Decl.”) ¶¶ 5-6, Exs. 4-5.
This Motion is based upon
this Notice of Motion and Motion, the attached Memorandum of Points and
Authorities, the concurrently filed Separate Statement, the concurrently filed
Declaration of Amanda E. Johnson, and attached exhibits, the other pleadings
and papers on file in this matter, the oral argument of counsel, and upon any
other matters that may be presented to the court at the hearing on this Motion.
BACKGROUND
Plaintiffs,
John Doe, a minor by and through his Guardians Ad Litem, Whitney A Wade and
Marianne Krawczyk, filed a Second Amended Complaint on 06/06/2022 against
Defendant Five Acres – The Boys’ and Girls’ Aid Society of Los Angeles County.
The SAC alleges seven causes of action – (1) Breach of Fiduciary Duty, (2)
Intentional Infliction of Emotional Distress, (3) Negligent Supervision,
Hiring, & Retention, (4) Premises Liability, (5) Negligence per se based on
Violation of Penal Code §11166, (6) Negligent Failure to Warn, Train, or
Educate Plaintiff, and (7) Negligence.
On 08/26/2022, this Court overruled Defendant’s
demurrer to Plaintiff’s fourth and fifth causes of action.
The allegations of this case pertain to when Plaintiff,
John Doe, a young boy, was placed in the care of Defendant for safe, temporary
out-of-home care upon referral by the California Department of Children and
Family Services. Plaintiff alleges that he suffered sexual abuse at the hands
of Doe Resident 1 while both Plaintiff and Doe Resident 1 were under the care
of Defendant.
On December 23, 2022, Plaintiff served the Notice of
Deposition of Person Most Knowledgeable from Defendant Five Acres and Request
for Production of Documents. On January 6, 2023, Defendant served its responses
and objections.
Plaintiff brings this motion because Defendant has refused
to produce documents in the documents request in the deposition notice for numbers 4-18, 30, 34-36, 38, 40, 52-60, 63, 68-70, 73,
75-78 and because Defendant has objected to proving a PMK to testify on Topic
Numbers 5-11, 16-17, 28, 29, 30, 35, 38, 52-54, 56-60, 63, 68, 70, and 73.
LEGAL STANDARD – MOTION TO COMPEL
DEPOSITION
Under CCP § 2025.450:
(a) If, after
service of a deposition notice, a party to the action or an officer, director,
managing agent, or employee of a party, or a person designated by an
organization that is a party under Section 2025.230, without having served a
valid objection under Section 2025.410, fails to appear for examination, or to
proceed with it, or to produce for inspection any document, electronically
stored information, or tangible thing described in the deposition notice, the
party giving the notice may move for an order compelling the deponent’s
attendance and testimony, and the production for inspection of any document,
electronically stored information, or tangible thing described in the
deposition notice.
(b) A motion
under subdivision (a) shall comply with both of the following:
(1) The
motion shall set forth specific facts showing good cause justifying the
production for inspection of any document, electronically stored information,
or tangible thing described in the deposition notice.
(2) The
motion shall be accompanied by a meet and confer declaration under Section
2016.040, or, when the deponent fails to attend the deposition and produce the
documents, electronically stored information, or things described in the
deposition notice, by a declaration stating that the petitioner has contacted
the deponent to inquire about the nonappearance.
(CCP
§2025.450(a)-(b).
ANALYSIS
Plaintiff appears to be bringing this
motion based on the objections that Defendant asserted for document requests 4-18,
30, 34-36, 38, 40, 52-60, 63, 68-70, 73, 75-78 in the deposition notice and the
objections Defendant asserted for deposition topics 5-11, 16-17, 28, 29, 30,
35, 38, 52-54, 56-60, 63, 68, 70, and 73 in the deposition notice.
As to all of these document requests and
deposition topics, Defendant responded as follows:
Objection: This
topic is vague, ambiguous, and unintelligible as phrased. It is also overbroad
in scope and time and therefore is overly burdensome and harassive to
defendant. This topic also seeks private medical, mental health, and personal
information of third-party DOE RESIDENT 1 contained within his file in
violation of his right to privacy guaranteed by Article 1, §1 of the California
Constitution. See, Hill v. National Collegiate Athletic Assn. (1994) 7
Cal.4th 1, 52; Mathews v. Becerra (2019) 8 Cal.5th 756, 770-771; Grafilo
v. Wolfsohn (2019) 33 Cal.App.5th 1024, 1033-1034; County of Los Angeles
v. Superior Court (2021) 65 Cal.App.5th 621, 641. Further, this topic seeks
the medical information of third-party DOE RESIDENT 1 in violation of
California Civil Code §56 et seq., the Confidentiality of Medical
Information Act, and 42 U.S.C. § 1320d et seq., the Health Insurance
Portability and Accountability Act (HIPAA) of 1996, providing that health care
providers generally may not disclose medical information without a patient's
authorization or court order. See, County of Los
Angeles v. Superior Court (2021) 65 Cal.App.5th 621, 641.
As to the rulings on the deposition topics
and document requests wherein this Court overrules Defendant’s objections, the
Court found that Plaintiff demonstrated good cause and that Plaintiff
sufficiently met and conferred.
As to the objections that this Court
overrules, the Court did not find Defendant’s objections on privacy/the
California Constitution/HIPPA/California Civil Code §56 availing.
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.)
The framework for evaluating invasions of privacy in discovery has been
clarified in Williams v. Superior Court (2017) 3 Cal.5th 531.
There, the California Supreme Court held that, generally, “[t]he 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. 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, 3 Cal.5th at p. 533, citing Hill
v. Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35.) The court
rejected cases which held that the party seeking protected information must
always show a compelling need or interest. (Id. at p.
557.) Instead, the court held, “[o]nly obvious invasions of interest
fundamental to personal autonomy must be supported by a compelling
interest.” (Id.) When lesser interests are at stake, “the strength of
the countervailing interest sufficient to warrant disclosure of private
information var[ies] according to the strength of the privacy interest itself,
the seriousness of the invasion, and the availability of alternatives and
protective measures.” (Id.)
Parties may overcome objections on the basis of a right to privacy by
demonstrating that the information sought is “directly relevant to a cause of
action or defense … i.e., that it is essential to determining the truth of the
matters in dispute.” (Britt v. Superior Court (1978)
20 Cal.3d 844, 859-862.) Once good cause is shown, courts must
carefully balance a right of privacy against the interest in having just
litigation. (Pioneer Electronics (USA), Inc. v.
Superior Court (2007) 40 Cal.4th 360, 371.)
Here, the Court understands why Defendant cited County of Los
Angeles v. Superior Court (2021) 65 Cal.App.5th 621, 641 in its objections
to protect the privacy rights of Doe Resident 1.
As stated in County of Los Angeles v. Superior Court (2021) 65
Cal.App.5th 621, 641:
“[P]atients have a right to privacy with respect to information
contained in ... medical records. Indeed, that right is well[-]settled.” (Grafilo,
supra, 33 Cal.App.5th at p. 1034, 245 Cal.Rptr.3d 564, citing numerous
cases].) It is a right that is protected by case law as well as state and
federal statutes and regulations. (See, e.g., Civ. Code, § 56 et
seq. [“This part may be cited as the Confidentiality of Medical
Information Act”]; 42 U.S.C. § 1320d et seq. Health Insurance
Portability and Accountability Act (HIPAA) of 1996 [providing **103 that
health care providers generally may not disclose medical information without a
patient's authorization or court order]; Citizens for Health v. Leavitt,
428 F.3d 167, 172 (3d Cir. 2005) [describing administrative privacy
regulations promulgated pursuant to HIPAA].)
(Ibid.)
Further,
as mentioned in County of Los Angeles v. Superior Court, “
…it is well
established that, under appropriate circumstances, a litigant “may assert the
privacy rights of third parties.” (Tien v. Superior Court (2006)
139 Cal.App.4th 528, 539, 43 Cal.Rptr.3d 121.) One such circumstance is
where the litigant's interests align with those of the third party and the
third party's “rights are ‘likely to be diluted or adversely affected’ unless
[the litigant] is permitted to assert their rights on their behalf.”
(County of Los
Angeles v. Superior Court (2021) 65 Cal.App.5th 621, 635)
However, as explicitly noted in County
of Los Angeles v. Superior Court, “..health care providers generally may
not disclose medical information without a patient’s authorization or court
order.” (County of Los Angeles v. Superior
Court (2021) 65 Cal.App.5th 621, 641. [Emph. added.])
Not only does the County of Los Angeles
v. Superior Court case mention how medical information can be disclosed
with a court order, but Plaintiff also pointed the Court’s attention to 45
C.F.R. §164.512(e)(1)(i) and Civil Code §56.10(b)(1) and §56.10(b)(3).
In relevant part, 45 C.F.R.
§164.512(e)(1)(i) states, “A covered entity may disclose protected health
information in the course of any judicial or administrative proceeding: (i) in
response to an order of a court or administrative tribunal, provided that the
covered entity discloses only the protected health information expressly
authorized by such order…” (Ibid.)
Further, moving Plaintiff points to how 45
C.F.R. 1644.512(e)(1) allows for discovery in certain instances when there is
no court order. In relevant part:
In response to a
subpoena, discovery request, or other lawful process, that is not accompanied
by an order of a court or administrative tribunal, if:
(A) The
covered entity receives satisfactory assurance, as described in paragraph
(e)(1)(iii) of this section, from the party seeking the information that
reasonable efforts have been made by such party to ensure that the individual
who is the subject of the protected health information that has been requested
has been given notice of the request; or
(B) The
covered entity receives satisfactory assurance, as described in paragraph
(e)(1)(iv) of this section, from the party seeking the information that
reasonable efforts have been made by such party to secure a qualified
protective order that meets the requirements of paragraph (e)(1)(v) of this
section.
(45 C.F.R.
§164.512(e)(1)(ii).)
Further, Plaintiff points the Court’s
attention to Civil Code §56.10(b)(1) and §56.10(b)(3).
Under Civil Code §56.10:
(a) A
provider of health care, health care service plan, or contractor shall not
disclose medical information regarding a patient of the provider of health care
or an enrollee or subscriber of a health care service plan without first
obtaining an authorization, except as provided in subdivision (b) or (c).
(b) A
provider of health care, a health care service plan, or a contractor shall disclose
medical information if the disclosure is compelled by any of the following:
(1) A court
order.
(2) A board,
commission, or administrative agency for purposes of adjudication pursuant to
its lawful authority.
(3) A party
to a proceeding before a court or administrative agency pursuant to a subpoena,
subpoena duces tecum, notice to appear served pursuant to Section 1987 of the
Code of Civil Procedure, or any provision authorizing discovery in a proceeding
before a court or administrative agency.
(Civil Code
§56.10(a)-(b)(3).)
Further, the Court notes that in County
of Los Angeles v. Superior Court, the Court of Appeal stated that
defendants failed to provide any cogent legal argument as to how the discovery
that they seek would be admissible or lead to the discovery of admissible
evidence. (County of Los Angeles v. Superior Court (2021) 65 Cal.App.5th
621, 654.)
Here, as to the objections which the Court
overrules, the Court finds that on balance the Plaintiff’s interest in bringing
this litigation and conducting discovery outweighs the privacy rights of Doe
Resident 1 based on Plaintiff’s explanation of good cause as to why the
requested information is relevant. Not only does the case law state that this
information can be disclosed based on a court order, the Plaintiff pointed to
the statutory exceptions in the C.F.R. and the Civil Code allowing for
disclosure when there is a court order. Further, the parties here entered into a
stipulation and protective order that was signed by the Court on August 9, 2022,
to designate documents confidential and highly confidential. This protective
order, applicable to the disclosures ordered hereby, allows the covered entity satisfactory
assurance that reasonable efforts to safeguard against potential disclosure has
occurred.
TENTATIVE RULINGS ON DEFENDANT’s
OBJECTIONS IN THE DEPOSITION NOTICE AS TO DEPOSITION TOPICS AND DOCUMENT
REQUESTS
Topic 5 objection (T5) – overruled
Document request 5 objection (DR5) –
overruled
Topic 63 objection (T63) – Objections of
vague, ambiguous, and unintelligible are SUSTAINED
Document request 63 objection (DR 63) –
Objections of vague, ambiguous, and unintelligible SUSTAINED
[Hereinafter, the Court will use the
letter “T” followed by a number and the letters “DR” followed by a number.
Implied in this notation is that the Court is ruling on the objections to those
topics and document requests.]
T68 – Overruled
DR 68 – Overruled
T70 – Overruled
DR70 – Overruled
T8 – Overruled
DR8 – Overruled
T9 – Objections, vague, ambiguous, and
unintelligible, sustained.
DR9 – Objections, vague, ambiguous, and
unintelligible, sustained.
T10 – Overruled
DR10 – Overruled
T11 – Objections, vague, ambiguous,
unintelligible, and overbroad, sustained.
DR11 – Objections, vague, ambiguous,
unintelligible, and overbroad, sustained.
T29 – Overruled
T30 – Overruled
DR 30 – Overruled
DR 34 – Overruled
DR 36 – Overruled
T38 – Overruled
DR 38 – Overruled
T52 –
Overruled
DR 52 – Overruled
T54
–Overruled
DR 54 - Overruled
DR 55 –
Overruled
T56 –
Overruled
DR 56 - Overruled
T57–Overruled
DR 57 – Overruled
T58 – Overruled
DR58 – Overruled
T59 –
Overruled
DR 59 – Overruled
T60 –
Overruled
DR 60 – Overruled
DR 12 –
Overruled
DR 13 –
Overruled
DR 14 – Overruled
DR 15 –
Overruled
T35 – Overruled
DR35 – Objections as to vague, ambiguous, unintelligible SUSTAINED.
T53 –
Overruled
DR 53 – Overruled
DR 69 –
Overruled
T73 –
Overruled
DR 73 – Overruled
Topic 6 –
Overruled
DR 6 – Overruled
T7 –
Overruled
DR 7 – Overruled
T16 –
Overruled
DR 16 – Overruled
T17 –
Overruled
DR 17 – Overruled
DR 18 –
Overruled
DR 40 –
Overruled
DR 75 –
Overruled
DR 4 –
Overruled
DR 76 –
Overruled
DR 77 –
Overruled
DR 78 –
Overruled
Defendant is
ordered to produce a person(s) most knowledgeable as to the aforementioned
topics and produce in response to the upheld document requests, without
objection, under oath, and in a code-compliant manner within 20 days.
Sanctions
were not requested, nor are any sanctions awarded.