Judge Jill Feeney, Case 20STCV38425 2022-10-27 Tentative Ruling

This is an action for negligence and motor vehicle negligence arising from a vehicle collision that took place in January 2020. Plaintiff Deanna Marie Marks filed her Complaint against Defendants Michael Delgado, C.R. England, Inc., and Walmart Inc. on October 6, 2020.

Defendants Michael Delgado and C.R. England (“Moving Defendants”) filed the instant motion to compel production of Plaintiff’s records from Premier Forensic Psychology on August 30, 2022.

Moving Defendants seek an order compelling Plaintiff’s physician, Dr. Jerri Frank, to produce Plaintiff’s mental health records. Dr. Frank objects to producing the records without signed authorization by Plaintiff. Defendant argues the records are relevant and discoverable, as well as that Plaintiff waived psychotherapist-patient privilege in placing her mental and emotional injuries at issue.

A party seeking discovery from a person who is not a party to the action may obtain discovery by oral deposition, written deposition, or deposition subpoena for production of business records.¿ (Code Civ. Proc., § 2020.010.)¿ A deposition subpoena may command: (1) only the attendance and testimony of the deponent, (2) only the production of business records for copying, or (3) the attendance and testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things.¿ (Code Civ. Proc., § 2020.020.)¿

¿A deposition subpoena shall be served in sufficient time in advance of the deposition to provide the deponent a reasonable opportunity to locate and produce any designated documents and, where personal attendance is commanded, a reasonable time to travel to the place of deposition.¿ (Code Civ. Proc., § 2020.220, subd. (a).)¿ Personal service of any deposition subpoena is effective to require a deponent who is a resident of California to personally appear and testify, if the subpoena so specifies; to produce any specified documents; and to appear at a court session if the subpoena so specifies.¿ (Code Civ. Proc., § 2020.220, subd. (c).)¿ A deponent who disobeys a deposition subpoena may be punished for contempt without the necessity of a prior order of the court directing compliance by the witness.¿ (Code Civ. Proc., § 2020.240.)¿

A “written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail¿or electronic service¿at an address¿or electronic service address¿specified on the deposition record.”¿ (Cal. Rules of Court, Rule 3.1346.)¿

California Code of Civil Procedure section 1987.1, subdivision (a) states, “[i]f a subpoena requires the attendance of a witness or the production of books, documents, 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.”

“[U]pon motion reasonably made by the party, judges may rule upon motions for quashing, modifying or compelling compliance with, subpoenas.” (Lee v. Swansboro Country Property Owners Ass'n (2007) 151 Cal.App.4th 575, 582-583.)

California Rules of Court, rule 3.1348, subdivision (a) states: “[t]he court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”

Plaintiff alleges that the subject vehicle collision caused her anxiety, depression, increased appetite, frustration, and loss of sleep among other mental and emotional injuries. (Pappas Decl., ¶¶4-5.) Plaintiff was also diagnosed with depression five years prior to the subject collision. (Id., ¶6.) Moving Defendants served their subpoena duces tecum on Premier Forensic Psychology on February 2, 2022 with a production date of March 2, 2022. (Pappas Decl., ¶3; Exh. A.) Premier Forensic Psychology never responded to the subpoena or to correspondence sent by Moving Defendants on June 10, 2022 inquiring about the failure to respond. (Pappas Decl., ¶6; Exh. A.)

Plaintiff has a legally protected privacy interest in her medical records. (See, e.g., Heda v. Superior Court (1990) 225 Cal. App. 3d 525, 528.) However, “all medical…records relating to the claimed injuries are…discoverable.” (Haning, et al., Cal. Prac. Guide Pers. Inj. (Rutter Group 2021) § 6:36.1-(citing Evid. Code § 996, 1016; Britt v. Sup. Ct. (San Diego Unified Port Dist.) (1978) 20 C3d 844, 862-864, 143 CR 695, 706-708.) Here, Plaintiff has placed her mental health at issue by claiming the subject collision caused significant mental and emotional injuries. Thus, the records are not privileged under Evidence Code section 1016. Defendant has a legitimate discovery interest in seeking Plaintiff’s mental health records. Hence, the motion is granted.