Judge: Joel L. Lofton, Case: 19STCV44112, Date: 2022-10-17 Tentative Ruling

Case Number: 19STCV44112    Hearing Date: October 17, 2022    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:     October 17, 2022                                TRIAL DATE:  February 7, 2022

CASE:                         SHELDON RABINOWITZ; and NAOMI RABINOWITZ v. ISAAC BENJAMIN PAZ, M.D.; JAMES BUESE, M.D.; VALENTINA ZACKARIAN, R.N.; HUNTINGTON AMBULATORY SURGERY CENTER, LLC; HUNTINGTON HOSPITAL; CITY OF HOPE; CITY OF HOPE NATIONAL MEDICAL CENTER; and DOES 1 through 100, inclusive.

CASE NO.:                 19STCV44112

MOTION TO COMPEL FURTHER

MOVING PARTY:              Defendants Isaac Benjamin Paz, M.D. and City of Hope Medical Group, Inc. (“Moving Parties”)

RESPONDING PARTY:      Plaintiff Sheldon Rabinowitz

SERVICE:                              Filed August 25, 2022

OPPOSITION:                       Filed September 20, 2022

REPLY:                                   Filed September 27, 2022

RELIEF REQUESTED

            Moving Parties move for an order compelling Plaintiff to provide further responses to their requests for production of documents set three.

BACKGROUND

             This case arises out of Plaintiff Sheldon Rabinowitz’s (“Plaintiff”) claim that during a procedure to excise a melanoma on his scalp, Defendant Isaac Benjamin Paz (“Dr. Paz”) caused a separate injury to Plaintiff’s left ear canal and eardrum. Plaintiff alleges that on December 7, 2018, he underwent the procedure at Huntington Ambulatory Surgery Center. He alleges that Defendant Valentina Zackarian, R.N., who was later corrected to be Defendant Victor Zackarian, (“Zackarian”), poured Betadine into Plaintiff’s ear. Plaintiff alleges that Dr. Paz attempted to clean the Betadine despite not being an experienced Ear, Nose, and Throat (“ENT”) doctor, also known as an otolaryngologist, causing a laceration in Plaintiff’s ear canal and puncturing or rupturing an eardrum.

            Plaintiff filed this complaint on December 6, 2019, alleging two causes of action for (1) professional negligence, and (2) loss of consortium brought by Plaintiff’s wife, Naomi Rabinowitz, against Defendants Dr. Paz, Zackarian, Huntington Ambulatory Surgery Center, LLC (“HASC”), Huntington Hospital (“Pasadena Hospital”), City of Hope, City of Hope National Medical Center, and Does 1 through 100. This motion was filed by Defendants Pasadena Hospital, HASC, and Zackarian, sued as Doe 1, (“Moving Defendants”) on April 15, 2021. On June 24, 2021, Plaintiff dismissed with prejudice his claim against Pasadena Hospital.

TENTATIVE RULING

            Plaintiff is ordered to produce copies of his Schedule C for 2013 through 2021 with redactions only to the expense breakdown and his social security number.

            All requests for sanctions are denied.

LEGAL STANDARD

On receipt of a response to discovery requests, the party requesting may move for an order compelling further responses for interrogatories (Code Civ. Proc. 2030.300), requests for admission (Cod. Civ. Proc. section 2033.290), and request for production (Code Civ. Proc. section 2031.310). “Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or any specific later date to which the requesting party and the responding party have agreed in writing, the requesting party waives any right to compel further response to the requests for admission.” (Code Civ. Proc. section 2033.290, subd. (c).)

DISCUSSION

            Requests for Production of Documents

            RFP No. 32: Please produce unredacted Schedule C forms for the years 2013 to 2018 for Rabinowitz Consulting Group, LLC.

            RFP No. 33: Please produce unredacted Schedule C forms for the years 2019 to 2020 for Rabinowitz Consulting Group, LLC.

            The parties were unable to reach an agreement as to the documents to be disclosed in discovery. Plaintiff agreed to produce Schedule Cs from 2013 through 2021 with the redactions to expense details. Plaintiff contends that the expense section is irrelevant to the present case.

             Moving Parties assert that Plaintiff redacted also redacted questions such as one that asked, “Did you ‘materially participate in the operation of this business during [year]?’” Moving Parties also assert the expense breakdown is necessary to determine whether Plaintiff was reducing his investment into his business.

            Tax Return Privilege

            The first issue raised is whether the tax returns are protected by a privilege.

            “Tax returns are privileged from disclosure. [Citation.] ‘The purpose of the privilege is to encourage voluntary filing of tax returns and truthful reporting of income, and thus to facilitate tax collection.’ [Citation.] The tax return privilege ‘is not absolute’ and ‘will not be upheld when (1) the circumstances indicate an intentional waiver of the privilege; (2) the gravamen of the lawsuit is inconsistent with the privilege; or (3) a public policy greater than that of the confidentiality of tax returns is involved.’ ” (Strawn v. Morris, Polich & Purdy (2019) 30 Cal.App.5th 1087, 1098.)  

            Moving Parties argue that Plaintiff waived the privilege related to his tax returns by claiming lost income. Plaintiff first cites King v. Mobile Home Rent Review Bd. (1989) 216 Cal.App.3d 1532.) However, in King the appellate court held that the respondent did not waive his privilege by voluntarily submitting a hardship application. (Id. at p. 1538.) Here, Plaintiff’s claim for lost income does not automatically entitle Moving Parties to the entirety of Plaintiff’s tax returns. Specifically, the redacted portions involving Plaintiff’s expense breakdown are still protected under the tax return privilege.

            Further, in Newsom v. City of Oakland (1974) 37 Cal.App.3d 1050, 1055, the issue before the Court was whether a plaintiff in a personal injury action claiming lost income could invoke the privilege against self-incrimination to refuse to testify whether he had filed income tax returns. The Court held the plaintiff could be forced to disclose that he had not filed tax returns. (Ibid.) Here, the privilege invoked is different. Additionally, Plaintiff has already produced his Schedule C with the claims for earning unredacted.

            However, Plaintiff has not demonstrated how other redactions in his tax returns are valid if he is willing to produce a breakdown of his earnings. Thus, Moving Parties’ motion to compel further is granted in part.

            Plaintiff is ordered to produce copies of his Schedule C for 2013 through 2021 with redactions only to the expense breakdown and his social security number.

            Privacy Interest

             The California Constitution provides Californians with a right to privacy. (Cal. Const., art. 1, section 1.) The California Supreme Court has held that “[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.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 552 (“Williams”), citing Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35.)

            Here, Plaintiff argues that because his individual tax returns are at issue, his privacy rights should prevent disclosure. However, Plaintiff has failed to establish the other prongs of the test in Williams to demonstrate that Moving Parties’ discovery requests would invade his privacy.

            However, because the Court has ruled that the tax returns are protected under Plaintiff’s privilege, this issue does not change the outcome of the motion.

            Sanctions

            Both parties request sanctions against the other party. Both parties attempt to paint the other side’s actions as a failure to properly meet and confer on the issues presented. It appears that the parties, to a degree, attempted to meet and confer but were unable to reach a mutually agreeable decision. Based on the parties’ disagreement, the Court finds it would be unjust to grant sanctions.

CONCLUSION

            Plaintiff is ordered to produce copies of his Schedule C for 2013 through 2021 with redactions only to the expense breakdown and his social security number.

            All requests for sanctions are denied.

            Moving Party to give notice.

Dated:   October 17, 2022                               ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court indicating their

intention to submit.  Parties intending to appear are strongly encouraged to appear remotely.  alhdeptx@lacourt.org