Judge Kerry Bensinger, Case 20STCV36062 2023-03-27 Tentative Ruling

On September 21, 2020, plaintiff Jacob Steven Calderon filed this action against defendants Jose Manuel Monroy Cabrera (“Cabrera”), Anibal Arias (“Arias”) and Does 1 through 50 for injuries arising from a motor vehicle accident on October 22, 2018. On April 16, 2021, Plaintiff named Jose Arias Jimenez (“Jimenez”) as Doe 1 and Jose Arias Jimenez dba Pepe A Trucking (“Pepe A Trucking”) as Doe 2.

On September 30, 2020, plaintiff Leslie Gutierrez filed this action against defendants Cabrera, Arias, individually and dba APA Trucking, Anibal Arias, Inc., Jimenez, and Pepe A Trucking (collectively, Defendants”) for injuries arising out of the same motor vehicle collision involving Plaintiff Calderon. Pursuant to stipulation, the cases were consolidated. Plaintiff Calderon’s complaint (Case No. 20STCV36062) was designated as the lead case.

On November 23, 2022, Plaintiff Leslie Gutierrez (hereinafter, “Plaintiff”) filed this motion for protective order, or alternatively, motion to quash medical subpoenas issued by Defendants to Henry Mayo Newhall Urgent Care (“Henry Mayo”). Plaintiff argues that the subpoenas are overbroad in time and scope and seeks an order to limit the scope of the subpoena to the last five years and to Plaintiff’s specific body parts affected in the subject incident.

In opposition, Defendants argue that (1) Plaintiff’s medical record contain relevant discovery and (2) Defendants have made efforts to meet and confer regarding proposed limitations on the subject subpoenas, which Plaintiff has refused.

In reply, Plaintiff reiterates that Defendants have not carried their burden to justify the discovery sought.

Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. (Code Civ. Proc., § 2025.420, subd. (a).) The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. (Code Civ. Proc., § 2025.420, subd. (b).) The motion shall be accompanied by a meet and confer declaration. (Id., subd. (a).) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2025.420, subd. (h).)

A deposition subpoena may request (1) only the attendance and testimony of a deponent, (2) only the production of business records for copying, or (3) the attendance and testimony, as well as the production of business records. (Code Civ. Proc., § 2020.020.) The court, upon motion or the court’s own motion, “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 orders as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” (Code Civ. Proc., § 1987.1, subd. (a).) “A deposition subpoena that commands only the production of business records for copying shall designate the business records to be produced either by specifically describing each individual item or by reasonably particularizing each category of item . . . .” (Code Civ. Proc., § 2020.410, subd. (a).)

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.) A plaintiff cannot recover more than the amount of medical expenses paid or incurred, even if the reasonable value of those services might be a greater amount. (Katiuzhinsky v. Perry (2007) 152 Cal.App.4th 1288, 1290.)

Plaintiff seeks a protective order, or alternatively, an order to quash or modify Defendants’ medical subpoena, served on Henry Mayo, because the subpoena is overly broad in time and scope.

Upon review of the subpoena request, the Court agrees that the subpoena does not contain any limiting language. It requests, in relevant part, “any and all documents and records … maintained pertaining to the care, treatment and examination of the patient.” Plaintiff indicated in interrogatory responses that she “sustained injuries to her left shoulder …, left arm, left elbow, left thigh, left knee …, right knee …, left side pelvis, left hip, and neck. Plaintiff also had shards of glass embedded into both arms, forehead, both hands, right wrist, and left upper arm.” (Plaintiff’s Response to Form Interrogatories, Berman Decl., Ex. B.) However, Defendants’ subpoena is not tailored “to address the ailments actually put in issue” by Plaintiff. (Lantz v. Superior Court (1994) 28 Cal.App.4th 1839, 1853-1857.)

In meet and confer efforts, Plaintiff requested that Defendants revise the subpoena “to limit the timeframe for the production of records from five years prior to the date of incident (10/22/2018) to the present day” and to narrow the scope to “body parts/health conditions put at issue.” (Berman Decl., Ex. D.) Plaintiff did not object to records dating back to the year 1998 as to Plaintiff’s right knee. (Berman Decl., ¶ 6.) Defendants expressed willingness ‘to limit the scope of the subpoena to the period from 10 years to the date of the incident, and also limit it to the same body parts plaintiff identified in her responses to … [i]nterrogatories,” (Berman Decl., Ex. E), but ultimately did not withdraw their subpoena when the parties could not agree on the time limitation.

Based on the foregoing, the Court finds that Plaintiff is entitled to an order modifying Defendants’ subpoena to Plaintiff’s at-issue body parts. The remaining issue before the Court is whether Defendants justify a request for Plaintiff’s medical records from Henry Mayo without any time limitation.

Defendants argue that the subpoenas are proper because Defendants are entitled to broad discovery rights. For this proposition, Defendants cite Fuss v. Superior Court of Los Angeles County (1969) 273 Cal.App.2d 807. However, Defendants’ reliance on Fuss is misplaced. In Fuss, the Court of Appeal held that a discovery response indicating that an opposing party may inspect portions of files and records that it deems “pertinent and proper” denies an opposing party an opportunity to examine records for the purpose of civil discovery. (Fuss, 273 Cal.App.2d at p. 815.) Here, Plaintiff is not seeking to control Defendants’ inspection to portions of her medical records that she alone deems “pertinent and proper.” Rather, Plaintiff persuasively argues that a broad subpoena such as the one here is not sufficiently tailored to uncover relevant evidence. Defendants fail to argue otherwise.

The Court finds Defendants’ subpoena is overbroad as to time and scope. Accordingly, the Court GRANTS Plaintiff’s motion to quash the subpoena. The Court modifies the scope of the Defendants’ subpoena to the body parts at issue and for records up to 10 years prior to the subject incident.

Both parties seek monetary sanctions. The Court finds that Plaintiff was entitled to an order modifying Defendants’ subpoena and that Defendants are entitled to records from Henry Mayo. Accordingly, both parties have acted with substantial justification in making and opposing this motion. Accordingly, the requests for monetary sanctions are DENIED.

Plaintiff’s motion to quash Defendants’ subpoena to Henry Mayo Newhall Urgent Care is GRANTED. The Court modifies the subpoena to the at-issue body parts and to records up to ten (10) years prior to the subject incident.

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