Judge Kerry Bensinger, Case 19STCV32212 2023-04-05 Tentative Ruling

On September 11, 2019, Plaintiff Tanda Orelia Rucker (“Plaintiff”) brought this action against Fernando Pineda (“Defendant”) for damages arising from a motor vehicle accident occurring on or about October 10, 2017.

On October 14, 2022, Defendant brought this motion to compel compliance with the subpoena for production of documents from nonparty Jeannine Lemare Calaba, Psy.d.

The motion was heard on January 31, 2023. The Court issued a tentative order granting the motion. However, because Defendant had not given notice to Dr. Calaba, the Court continued the motion to provide counsel an opportunity to serve Dr. Calaba, and Dr. Calaba to file any opposition, if warranted.

Thereafter, a series of ex parte applications ensued to discuss issues of service of the motion on Dr. Calaba. Based upon the Court’s docket, service of the motion was effectuated on Dr. Calaba on March 13, 2023. The Court authorized the hearing on the motion to proceed on a date at least sixteen days after service of the motion on Dr. Calaba. No opposition has been filed by either Dr. Calaba or Plaintiff.

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 service of a deposition subpoena shall be effected 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., § 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.)

When a plaintiff puts her health and physical condition at issue, the privacy and privileges that normally attach to such sensitive information are “substantially lowered by the very nature of the action.” (Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal.4th 30, 43.) The Court must “balance the public need against the weight of the privacy right” and only serious invasions of privacy will bar discovery. (Crab Addison, Inc. v. Superior Court (2008) 169 Cal.App.4th 958, 966.) There is not an egregious invasion of privacy every time there is a request for private information and courts must “place the burden on the party asserting a privacy interest to establish its extent and seriousness of the prospective invasion.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 557.)

However, “although in seeking recovery for physical and mental injuries plaintiffs have unquestionably waived their physician-patient . . . privileges as to all information concerning the medical conditions which they have put in issue, past cases make clear that such waiver extends only to information relating to the medical conditions in question, and does not automatically open all of a plaintiff’s past medical history to scrutiny.” (Britt v. Superior Court (1978) 20 Cal.3d 844, 849.)

Generally, the burden is on the party seeking the constitutionally protected information to establish direct relevance. (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1017.) The psychotherapist-patient privilege “is too important to be brushed aside when the mental condition of the plaintiff may be only peripherally involved” and in order for there to be direct relevance to Plaintiff’s mental condition, there must be “specific averments or reasonable interpretations drawn from the pleading which clearly place mental condition in issue.” (Ibid.) However, “[b]ecause only the patient, and not the party seeking disclosure, knows both the nature of the ailments for which recovery is sought and the general content of the psychotherapeutic communications, the burden rests upon the patient initially to submit some showing that a given confidential communication is not directly related to the issue he has tendered to the court.” (In re Lifschultz (1970) 2 Cal.3d 415, 436.)

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, § 56.10, subds. (a), (b)(1), (b)(3).)

On November 4, 2020, Defendant properly served a Deposition Subpoena for the Production of Business Records on Dr. Calaba, seeking the production of Plaintiff’s psychological records for the past ten (10) years. (Kempson Decl. ¶ 4.) Specifically, Defendant seeks:

“All documents and records pertaining to the care, treatment and examination of Tanda Orelia Rucker, including but not limited to, any itemized statements of the billing charges, inpatient and outpatient charts and records, emergency room and lab reports, radiology reports, breakdown for any CAT scan, X-rays, MRI’s taken, EKG and EMG reports, prescription/pharmacy records, and any other records pertaining to Tanda Orelia Rucker, DOB: August 15, 1973… from January 1, 2010 to and including the present.” (See, Kempson Decl., at ¶ 4, Exhibit 2.)

Dr. Calaba did not object to the subpoena; however, Plaintiff’s counsel objected on the grounds that the information sought violated Plaintiff’s privacy rights. (Kempson Decl. ¶ 5, Exhibit 3.) Due to Plaintiff’s counsel’s objections, no psychological treatment records have been produced. (Kempson Decl. ¶ 6.)

The motion was properly served, after much effort, on Dr. Calaba. Plaintiff has sufficiently placed her mental and emotional state directly at issue. Defendant contends that Dr. Calaba’s records are material to the defense because Plaintiff has placed her mental and emotional state directly at issue in this litigation by alleging sustained mental and emotional damages. Additionally, Defendant asserts that past records are discoverable because they will tend to show causation as well as that the mental and emotional injuries were a result of a preexisting mental condition rather than the subject accident. Plaintiff did not oppose this motion.

Here, Plaintiff waives the right to privacy by putting Plaintiff’s mental or emotional condition in issue. The Complaint alleges that Plaintiff was “hurt and physically injured, sustaining medical bills, the need for future medical treatment, loss of earnings, earning capacity, pain, suffering, loss of enjoyment of life and other damages and will continue to sustain such damages in the future.” (Complaint ¶ 18.) Plaintiff’s prayer for relief specifically requests non-economic damages. (Complaint Prayer ¶ 1.) During her deposition, Plaintiff testified that she had a history of psychological counseling with Dr. Calaba prior to the accident and that she spoke with Dr. Calaba about issues related and unrelated to the accident. (Kempson Decl. ¶ 3, Exhibit 1 [Deposition, p. 63, 119.] Thus, Plaintiff has placed Plaintiff’s mental and emotional state at issue. Dr. Calaba’s records with Plaintiff pertaining to Plaintiff’s mental and emotional state are directly relevant.

Dr. Calaba’s custodian of records is ordered to produce all documents and records pertaining to the care, treatment and examination of Plaintiff Tanda Orelia Rucker, including but not limited to, any itemized statements of the billing charges, inpatient and outpatient charts and records, emergency room and lab reports, radiology reports, breakdown for any CAT scan, X-rays, MRI’s taken, EKG and EMG reports, prescription/pharmacy records, and any other records pertaining to Tanda Orelia Rucker, DOB: August 15, 1973, from January 1, 2010 to and including the present.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Kerry Bensinger

Judge of the Superior Court