Judge: H. Jay Ford, III, Case: 20SMCV01465, Date: 2022-10-13 Tentative Ruling

Case Number: 20SMCV01465    Hearing Date: October 13, 2022    Dept: O

  Case Name:  Topper v. Haworth, et al.

SUBJECT:                 MOTION FOR SUMMARY JUDGMENT  

MOVING PARTY:   Defendant Roger Tsai, MD

RESP. PARTY:         Plaintiff Doreen Topper, R.N.

TENTATIVE RULING

            Defendant Tsai’s Motion for Summary Judgment is GRANTED.  Tsai’s Request for Judicial Notice is GRANTED. 

I.  Invasion of Privacy Law

            “One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.  The definition of the intrusion tort consists of two elements: (1) the intrusion into a private place, conversation or matter, (2) in a manner highly offensive to a reasonable person.”  Sanchez-Scott v. Alza Pharmaceuticals (2001) 86 Cal.App.4th 365, 372.

            “The plaintiff must show that the defendant penetrated some zone of physical or sensory privacy surrounding, or obtained unwanted access to data about, the plaintiff. The tort is proven only if the plaintiff had an objectively reasonable expectation of seclusion or solitude in the place, conversation or data source.”  Id.

            Once an intrusion is established, the plaintiff must then establish that the intrusion was highly offensive to a reasonable person.  “[W]hile what is ‘highly offensive to a reasonable person’ suggests a standard upon which a jury would properly be instructed, there is a preliminary determination of ‘offensiveness' which must be made by the court in discerning the existence of a cause of action for intrusion.  A court determining the existence of ‘offensiveness' would consider the degree of intrusion, the context, conduct and circumstances surrounding the intrusion as well as the intruder's motives and objectives, the setting into which he intrudes, and the expectations of those whose privacy is invaded.”  Wilkins v. National Broadcasting Co., Inc. (1999) 71 Cal.App.4th 1066, 1075–1076. 

            “The tort of invasion of privacy protects an interest similar to that protected by the law of defamation.  The elements are the harm to the interest in privacy, the mental distress suffered, and special damage caused by the invasion.  The principal element is general damages for injury to peace of mind and feelings. That injury may be inferred by the trier of fact from the testimony with relation to the social status of the person libeled. This inference may be supplemented by the direct statement of the plaintiff to the effect that his feelings were injured.”  6 Witkin, Summary (11^th ed. 2017), Torts §1887.

II.  Defendant establishes that the alleged intrusion was not highly offensive

            Once an intrusion is established, the plaintiff must then establish that the intrusion was highly offensive to a reasonable person.  “[W]hile what is ‘highly offensive to a reasonable person’ suggests a standard upon which a jury would properly be instructed, there is a preliminary determination of ‘offensiveness' which must be made by the court in discerning the existence of a cause of action for intrusion.  A court determining the existence of ‘offensiveness' would consider the degree of intrusion, the context, conduct and circumstances surrounding the intrusion as well as the intruder's motives and objectives, the setting into which he intrudes, and the expectations of those whose privacy is invaded.”  Wilkins v. National Broadcasting Co., Inc. (1999) 71 Cal.App.4th 1066, 1075–1076. 

            (1) Degree of intrusion.  Tsai testifies that he (1) accessed his own Patient List on the CURES database on 9-22-19 after Haworth informed him Plaintiff had been using physicians’ credentials to write herself prescriptions; (2) discovered that Plaintiff’s name was on that Patient List, despite the fact that he had not written her a prescription during the period covered by the Patient List (9-22-18 to 9-29-19); and (3) thereafter accessed Plaintiff’s Patient Activity Report to determine whether there were prescriptions listed written by him.  See Dec. of R. Tsai, ¶¶8-11. 

            The degree of intrusion was minor. The purpose of  the CURES database is “ [t]o assist health care practitioners in their efforts to ensure appropriate prescribing...of controlled substances,...”  Health & safety Code §1155(a).  Tsai has the right to access CURES under Health and Safety Code §11165.6, which states “A prescriber shall be allowed to access the CURES database for a list of patients for whom that prescriber is listed as a prescriber in the CURES database.”  Tsai therefore had a right to access the database to obtain a list of patients for whom he is a prescriber.  Tsai testifies that he is entitled to access patient information in CURES by either searching for a Patient Activity Report or viewing his Patient List Report.  See Notice of RJN; Dec. of R. Tsai, ¶16.  Even if Section 11165.6 if narrowly interpreted to allow  Tsai access his Patient List, Tsai’s decision to access Plaintiff’s Patient Activity Report is a minor intrusion.  Plaintiff was listed as a person or patient who had received a prescription from Tsai.  Even if Plaintiff was not actually Tsai’s patient and Tsai had not written her a prescription between September 2018 and September 2019, Plaintiff was listed as his patient and Tsai was listed as her prescriber on the CURES database.  Tsai only viewed Plaintiff’s Patient Activity Report after her name appeared on his Patient List, when he knew that he had not written her a prescription during the reporting period.  Based on the undisputed evidence, the Court finds the alleged intrusion was minimal and not highly offensive.

            (2) Context, conduct, and circumstances surrounding intrusion.  The context, conduct and circumstances surrounding Tsai’s alleged intrusion supporting a finding that the intrusion was not highly offensive.  Tsai discovered that there were three prescriptions written to Plaintiff under his name.  Id. at ¶11.  Tsai had not written any of these prescriptions.  Id. at ¶12.  Tsai testifies that he only accessed Topper’s Patient Activity Report on 9-22-19 to determine why he was listed as her prescriber when he knew he had not prescribed her any medications during the time period of the report.  Id. at ¶13.  Tsai testifies that he has a professional duty to ensure that his credentials were not being used to write and fill prescriptions.  Id.  Tsai argues there was no less intrusive manner to determine whether his name had been fraudulently used by Plaintiff to obtain prescriptions.  Tsai argues he only access her Patient Activity Report after her name appeared on his patient list. 

            Plaintiff does not oppose the substance of the motion.  Plaintiff does not propose that Tsai had less intrusive means to verify his credentials had been used to write prescriptions for Plaintiff. 

            Based on the context, conduct and circumstances surrounding Tsai’s alleged intrusion, the intrusion was not highly offensive.  Tsai only viewed Plaintiff’s Patient Activity Report after her name appeared on his Patient List, when he knew that he had not written her a prescription during the reporting period.

            (3) Intruder's motives and objectives.  Tsai’s only motive was to determine whether his credentials had been fraudulently used by the Plaintiff.  Tsai was not motivated by any intent to wrongfully obtain information regarding Plaintiff to use against her. Tsai’s only intention was to protect the integrity of his professional credentials. Tsai’s motives and objectives support a finding that the intrusion was not highly offensive.

            (4) The setting into which he intrudes.  Tsai intruded into the CURES database and Plaintiff’s prescription history.  Given that Tsai was entitled to access that information as a matter of law, the setting into which he intruded support a finding that the intrusion was not highly offensive. 

            (4) The expectations of those whose privacy is invaded.  Plaintiff’s expectation of privacy was minimal.  Plaintiff does not dispute she received the prescriptions issued in Tsai’s name that were listed in the CURES database.  Plaintiff does not claim she was ignorant of these prescriptions.  There is therefore no evidence that Plaintiff did not in fact receive those prescriptions in Tsai’s name.  Given the undisputed evidence that prescriptions were written to Plaintiff under Tsai’s name, Plaintiff could not expect her prescription information to remain private from Tsai, her prescriber.    

            The Court finds that the undisputed facts do not support a finding that Tsai’s alleged intrusion was highly offensive.  Plaintiff failed to submit any evidence in opposition.  Defendant Tsai’s Motion for Summary Judgment is GRANTED. 

III. Tsai’s intrusion was also justified

            “A defendant may prevail in a state constitutional privacy case by negating any of the three elements just discussed or by pleading and proving, as an affirmative defense, that the invasion of privacy is justified because it substantively furthers one or more countervailing interests.  The plaintiff, in turn, may rebut a defendant's assertion of countervailing interests by showing there are feasible and effective alternatives to defendant's conduct which have a lesser impact on privacy interests.”  Lewis v. Superior Court (2017) 3 Cal.5th 561, 572. 

            “The existence of a sufficient countervailing interest or an alternative course of conduct present threshold questions of law for the court. The relative strength of countervailing interests and the feasibility of alternatives present mixed questions of law and fact.”  Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 40.

            Tsai only accessed Plaintiff’s Patient Activity Report after he discovered her name on his own Patient List.  Tsai only accessed Plaintiff’s Patient Activity Report to determine whether prescriptions had been written under his name to Plaintiff, when they were written and for what medication they were written.  Tsai access Plaintiff’s Patient Activity Report in an effort to prevent the abuse of his credentials for the unlawful acquisition of controlled substances.  The entire purpose of the CURES database is to “assist health care practitioners in their efforts to ensure appropriate prescribing, ordering, administering, furnishing, and dispensing of controlled substances,” and to help “law enforcement and regulatory agencies in their efforts to control the diversion and resultant abuse of [Schedule II-IV] controlled substances.” (§ 11165, subd. (a).)”  Lewis, supra, 3 Cal.5th at 566.  Tsai’s intrusion was therefore justified. 

            The Court finds that the undisputed facts support a finding that Tsai’s alleged intrusion was justified.  Plaintiff failed to submit any evidence in opposition.  Defendant Tsai’s Motion for Summary Judgment is GRANTED. 

IV.  Plaintiff’s Request for CCP §437c(h) Continuance is DENIED.

            Section 437c, subdivision (h) provides: “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just.”  The court is not required to grant a request for continuance under CCP §437c(h) when no affidavit is submitted or when the submitted affidavit fails to make the necessary showing under section 437c(h).  See Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 253-254.

             A declaration in support of a request for continuance under section 437c, subdivision (h) must show: “(1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reason why additional time is needed to obtain these facts. is not sufficient under the statute merely to indicate further discovery or investigation is contemplated. The statute makes it a condition that the party moving for a continuance show ‘facts essential to justify opposition may exist.”  Id. at 254 (citations omitted).

            Plaintiff’s counsel declaration fails to identify the facts to be obtained from further discovery that are essential to opposing the motion, or state the reasons, the reasons why such facts may exist, or state reasons why additional time is necessary to obtain these facts.  Mr. Rudd claims he was prevented from completing Hawworth’s deposition on August 31, 2022 and received insufficient responses from Haworth to his first set of written discovery that  Hawworth responded to on November 4, 2021.  Mr. Rudd claims he has been unable to take the deposition of co-defendant Motykie “who openly conspired with Dr. Hayworth against Plaintiff in a series of text messages between the two of them.” Similarly, Mr. Rudd claims Motykie’s recently produced responses to written discovery were “incomplete.”

While Mr. Rudd states “Plaintiff cannot meaningfully respond to the Motions until she has completed the depositions of Dr. Haworth and Dr. Motykie, and obtained full written discovery responses,”  he fails to meet his burden to show what facts are to be obtained that are essential to opposing the motion and what reason he has to believe those facts exist. Finally, given this case has been pending for two years, and the trial is less than a month away, Mr. Rudd fails to explain why any of this discovery could not have been completed earlier with proper diligence.

            Plaintiff’s request for a CCP §437c(h) continuance is DENIED. 

  Case Name: 
Topper v. Haworth, et al.

SUBJECT:                 MOTION FOR TERMINATING
SANCTIONS   

MOVING
PARTY:   Defendant Gary Motykie, M.D.

RESP.
PARTY:         Plaintiff Doreen
Topper, R.N.

TENTATIVE
RULING

            Defendant
Motykie’s Motion for Terminating Sanctions is DENIED.  Defendant Motykie’s Motion for Monetary
Sanctions in the amount of $1,070.50 is GRANTED. Plaintiff’s counsel
Christopher Rudd is ordered to pay sanctions in the amount of $1,070.50 within
10 days.

            Defendant
Motykie moves for terminating sanctions based on Plaintiff’s failure to serve
responses without objection to Motykie’s Form Interrogatories, Special
Interrogatories and RFPs.  On July 19,
2022, the Court ordered Plaintiff to serve those responses without objections
within 10 days on 7-19-22.  Plaintiff
allegedly served responses by email to Defendant after this motion for
terminating sanctions was filed. Plaintiff, however, did not attach those
responses or provide a proof of service with her opposition.

Defendant is entitled to monetary
sanctions in the amount of $1,070.50 (4.3 hours @ $235/hr and a filing fee of
$60).  Plaintiff’s counsel accepts
responsibility for the sanctions.

However, terminating sanctions are
not justified based on Plaintiff’s failure to fully comply with the Court’s July
2022 discovery orders.  This is the first
instance of discovery abuse and Plaintiff has attempted to comply.  Terminating sanctions should not be imposed
lightly and a graduated imposition of sanctions should be used if possible. See
Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280
(decision to impose terminating sanctions should not be made lightly but such
sanctions are justified in cases of repeated discovery abuse and evidence that
lesser sanctions will be ineffectual); Thomas v. Luong (1986) 187
Cal.App.3d 76, 81–82; see also Morgan v. Ransom (1979) 95 Cal.App.3d
664, 669 (incarcerated, indigent, pro per plaintiff's delay in serving
responses insufficient to justify imposition of terminating sanctions where no prejudice
demonstrated). Moreover, discovery sanctions are not intended to punish but to accomplish
discovery. See Newland v. Supr. Ct. (1995) 40 Cal.App.4th 608, 613.