Judge Gary Y. Tanaka, Case BC699916 2022-12-09 Tentative Ruling

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka Friday, December 9, 2022

Department B Calendar No. 2

Plaintiffs filed their Complaint on March 28, 2018. Plaintiffs allege the following facts. This case arises out of a slip and fall incident occurring on July 16, 2017, at Gardena Buffet & Grill in Gardena, California. Plaintiff, Nancy Jaber, slipped and fell on a piece of raw shrimp at Defendant’s premises. Plaintiffs allege the following causes of action: 1. Premises Liability; 2. Negligence; 3. Loss of Consortium.

Defendant’s objection to Exhibit B of the declaration of Edward M. Morgan is sustained.

“(a) On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(b) In exercising its discretion to grant or deny this motion, the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following:

(2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier.

(3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party.

(4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.”

Defendant set forth a meet and confer declaration in sufficient compliance with CCP § 2024.050 and CCP § 2016.040. (Decl., Zachary Mayer, ¶ 14.)

Defendant moves for an order granting leave to reopen discovery. Defendant seeks to obtain the following out-of-state discovery: “(1) medical records pertaining to the pre-natal and post-natal medical treatment that plaintiff Nancy Jaber (“Jaber”) received in connection with the birth of her third child, Natalie; and (2) the oral deposition of Jaber’s obstetrician-gynecologist, Ameer Touadrous, M.D. 2. Issuance of commissions under seal of this Court authorizing the above discovery, addressed to: (1) Memorial Hermann Release of Information 7737 SWF C94, Houston, Texas 77036; and (2) Jaber’s obstetrician-gynecologist Ameer Touadrous, M.D., 7001 Corporate Dr. Suite 120, Houston, Texas 77036.” (Notice of Motion, page 2). The motion is based on the ground that the requested discovery is necessary to obtain a complete medical picture relating to alleged on-going issues with Jaber’s lower back.

Defendant argues that the deposition of Plaintiff Jaber’s OB-GYN and medical records from this provider are needed based on the potential that Jaber’s recent pregnancy may have contributed to Jaber’s complaints of lower back injury. Plaintiffs argue that the requested discovery is overly broad and also violates Plaintiff’s fundamental right of privacy.

“The state Constitution expressly grants Californians a right of privacy. (Cal. Const., art. I, §1.) Protection of informational privacy is the provision’s central concern.” Williams v. Superior Court (2017) 3 Cal.5th 531, 552. “[W]hen a discovery request seeks information implicating the constitutional right of privacy, to order discovery simply upon a showing that the Code of Civil Procedure section 2017.010 test for relevance has been met is an abuse of discretion.” Williams v. Superior Court, supra, 3 Cal.5th at 556 (citations omitted).

In Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35-37, the California Supreme Court “established a framework for evaluating potential invasions of privacy. 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. . . . . 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, supra, 3 Cal.5th at 552 (citations omitted). In Hill, the Court “explained that not ‘every assertion of a privacy interest under article I, section 1 must be overcome by a “compelling interest.” . . . . A ‘“compelling interest”’ is still required to justify ‘an obvious invasion of an interest fundamental to personal autonomy.’” Id. at 556.

Disclosure depends upon balancing the need for discovery against the need for confidentiality. “Courts must instead place the burden on the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion, and against that showing must weigh the countervailing interests the opposing party identifies, as Hill requires.” Williams v. Superior Court (2017) 3 Cal.5th 531, 557.

Discovery of relevant medical history may be allowed because a Defendant may have no other methods to obtain this type of information. See, Palay v. Superior Court (1993) 18 Cal.App.4th 919, 933-34 disapproved of on other grounds by Williams v. Superior Court (2017) 3 Cal.4^th 531, 557, n. 8. However, the lifetime of plaintiff’s medical history may not be discoverable. Plaintiff's right of privacy is protected as to physical and mental conditions unrelated to the claim or injury sued upon. See, Britt v. Superior Court (1978) 20 Cal.3d. 844, 864.

Here, the requested deposition and medical records are overly broad and encompass Jaber’s fundamental right to medical privacy. The requested discovery seeks testimony and records to medical issues related to all pre-natal and post-natal care of Jaber as to her recent pregnancy. This discovery would encompass matters far outside and completely unrelated to medical issues as to the claim upon which Plaintiff has sued Defendants – injury to her lumbar spine. While there is certainly a potential that pain to the back region was discussed at some point during Jaber’s pregnancy, Jaber’s fundamental medical right of privacy concerning the matters completely unrelated to the claims herein far outweigh Defendant’s speculative reasons for determining that Defendant needs this discovery.

The second factor focuses on “[t]he diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier.” Here, Defendant has adequately established diligence. While it is true that Defendant could have acted more diligently in pursuing discovery in this matter, the facts related to the pregnancy would not have come to light until after the pregnancy itself and Jaber allegedly gave birth in April 2021. Defendant allegedly did not discover the facts of this pregnancy until the deposition of Jaber in September 2022. After this date, Defendant acted diligently in attempting to informally obtain the deposition and records sought herein, and then applied ex parte to reopen discovery for this express purpose in November 2022. The Court notes, however, that it must take into consideration all relevant factors in making its final decision as to whether to grant or deny this motion.

As to the third factor, the Court notes that the trial date is now February 28, 2023. The Court finds that reopening discovery may require another trial continuance. The instant action was filed on March 28, 2018, and thus the five year rule is implicated with further trial continuances. Of course, because of Emergency Rule 10(a), an additional six months may be calculated in determining the five-year cut off. However, still, any further continuances may jeopardize Plaintiffs’ ability to bring this action to trial within five years of the filing date of the Complaint especially if other unforeseen circumstances should occur.

As to the fourth factor, there have been numerous continuances of the trial date, which was initially set for October 16, 2019. Again, another continuance has the potential of prejudicing Plaintiffs’ right to obtain a speedy resolution of this action.

Based on a full evaluation of all the factors noted above, the Court finds that Defendant has not established good cause to reopen discovery. Thus, Defendant’s Motion to Reopen Discovery is denied.