Judge Jill Feeney, Case Number: 22STCV03370, Date: 2023-11-29 Tentative Ruling

This is an action for breach of warranty of habitability, negligence, nuisance, intentional infliction of emotional distress, breach of contract, breach of the covenant of quiet enjoyment, fraud, and housing discrimination. Plaintiff alleges that she leased an apartment from Defendants which Defendants failed to maintain. Plaintiff alleges the apartment was in an uninhabitable condition and contained hazards, including mold and vermin.

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., section 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., section 2020.020.)¿

A service of a deposition subpoena shall be affected a 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., section 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., section 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., section 2020.240.)¿A motion to compel compliance with a deposition subpoena must be made within 60 days after completion of the deposition record, the date objections are served, or the date specified for production. (Code Civ. Proc., section 2025.480, subd., (b); Board of Registered Nursing v. Sup.Ct. (Johnson & Johnson) (2021) 59 CA5th 1011, 1032-1033.)

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.”

Here, the Holt Defendants’ Counsel testifies that on August 4, 2023, she sent a deposition subpoena for personal appearance and production of documents to Tri-City Mental Health Services (“Tri-City”), Plaintiff’s mental health care provider. (McKenzie Decl., ¶5.) The deposition subpoena was properly served on Tri-City’s Custodian of Records via personal service. (Id., ¶5, Exhs. B-C.) Tri-City refused to produce documents for requests 1, 2, 9-11, and 16 without Plaintiff’s authorization or court order. (Id., ¶7.) Plaintiff refused to provide a signed authorization. (Id., ¶3.)

Plaintiff’s medical records pertaining to her mental health are relevant to her claims because she alleges that she suffered psychological and emotional pain and suffering as a result of the uninhabitable condition of the Holt Defendants’ property. (SAC ¶34.) The deposition subpoena was properly served and does not appear to be defective.

Plaintiff also alleges that the Holt Defendants failed to meet and confer on this issue prior to filing this motion. However, the Holt Defendants’ counsel testifies that the parties attended an independent discovery conference on whether the records were relevant and had already sought Plaintiff’s signed authorization before the conference. (McKenzie Decl., ¶¶3-4.) The Court finds that the Holt Defendants made sufficient efforts to resolve this dispute informally.

The Court cannot compel plaintiff to sign an authorization for release of medical records because it is not a permitted method of discovery. Case law on this particular issue is limited and that which does exist is not clear. For example, in Miranda v. 21st Century Ins. Co. (2004) 117 Cal.App.4th 913, the appellate court upheld the dismissal of an action where the plaintiff failed to comply with the court’s order to sign an authorization for release of records. (Id. at pp. 918-919.) However, in a footnote, the court stated it was not clear why the defendant moved to compel an authorization rather than compel compliance with a subpoena. (Id. at p. 918, fn. 2.) Defendant does not cite any authority, and the Court is unaware of any, that specifically gives the court express authority under the Discovery Act to compel a plaintiff to sign an authorization for release of records.

The Court does have authority to compel a non-party’s compliance with a proper deposition subpoena for records. A provider of health care shall not disclose medical information regarding a patient of the provider of health care without first obtaining an authorization, except where compelled by a court pursuant to an order of that court or by a party to a proceeding pursuant to a subpoena, subpoena duces tecum, notice to appear served pursuant to Section 1987 of the Code of Civil Procedure, or any authorizing discovery in a proceeding before a court or administrative agency. (Civ. Code, section 56.10, subds. (a), (b)(1), (b)(3).)

California Code of Civil Procedure section 1987.2, subdivision (a) states, in relevant part, “. . . in making an order pursuant to motion made . . . under Section 1987.1, the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification . . . .”

Here, the Holt Defendants seek sanctions against Plaintiff and her counsel for failing to provide signed authorization allowing Tri-City to release her medical records. However, as discussed above, there is no requirement for Plaintiff to provide such a release, nor may the Court compel Plaintiff to sign a release. Sanctions against Plaintiff are denied.