Judge: Kevin C. Brazile, Case: 23STCV17401, Date: 2023-11-27 Tentative Ruling

Case Number: 23STCV17401    Hearing Date: March 13, 2024    Dept: 20

Tentative Ruling

Judge Kevin C. Brazile

Hearing Date:                         Wednesday, March 13, 2024

Case Name:                            Kathleen Margaret Sullivan v. Los Angeles Community College                                                 District, et al.

Case No.:                                23STCV17401

Motion:                                  (1) Motion to Compel Compliance with Deposition Subpoena served on Liliana Hernandez and Request for Monetary Sanctions in the amount of $875

                                                (2) Motion to Compel Compliance with Deposition Subpoena served on Burton A. Liebross, MD and Request for Monetary Sanctions in the amount of $3,325

Moving Party:                         (1) and (2) Defendants Los Angeles Community College District, Suleman Ishaque, Earic Dixon-Peters and Genice Sarcedo-Magruder

Responding Party:                  (1) and (2) Plaintiff Kathleen Margaret Sullivan

Notice:                                    OK

Ruling:                                    Defendants’ Motions to Compel Compliance with Deposition Subpoenas on Burton A. Liebross, MD and Liliana Hernandez, LMFT are granted.  Plaintiff and Plaintiff’s counsel are ordered to pay sanctions in the amount of $1750. 

                                                Moving party to give notice.

BACKGROUND

            Plaintiff was employed by Defendant Los Angeles Community College District at Pierce College as a full time counselor in its Disabled Student Program and Services.  Plaintiff alleges she suffered harassment and discrimination based on her age and gender.  Plaintiff also alleges she suffered retaliation and a hostile work environment based on her age, gender and her open support for several colleagues who she believed were unfairly treated and discrimination against.  Plaintiff alleges Defendant failed to properly investigate her complaints about the workplace.  Plaintiff alleges Defendants Suleman Isaque, Earic Dixon-Peters and Genice Sarcedo Magruder were the individuals who perpetrated the discrimination, harassment and retaliation. 

            The operative complaint is the First Amended Complaint filed on January 2, 2024.  The FAC alleges (1) discrimination in violation of the FEHA; (2) hostile work environment harassment in violation of FEHA; (3) retaliation in violation of FEHA; (4) failure to accommodate disability in violation of FEHA; (5) failure to engage in the interactive process in violation of FEHA; (6) discrimination and retaliation for requesting/requiring an accommodation; (7) failing to take all reasonable steps to prevent discrimination, harassment and retaliation in violation of FEHA. 

DISCUSSION

Applicable Law

            When a subpoena has been issued requiring the attendance of a witness or the production of documents, electronically stored information, or other things before a court or at the taking of a deposition, the court, upon motion “reasonably made” by the party, the witness, or any consumer whose personal records are sought, 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 and conditions as the court may specify.  (Code Civ. Proc. § 1987.1; Southern Pac. Co. v. Superior Court (1940) 15 Cal.2d 206.)

            The court can make an order quashing or modifying a subpoena as necessary to protect a person from “unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.”  (Code Civ. Proc., § 1987.1, subd. (a).)

            “Prior to the date called for in the subpoena duces tecum for the production of personal records, the subpoenaing party shall serve or cause to be served on the consumer whose records are being sought a copy of the subpoena duces tecum, of the affidavit supporting the issuance of the subpoena, if any, and of the notice described in subdivision (e), and proof of service as indicated in paragraph (1) of subdivision (c).”  (CCP §1985.3(b).) 

            “The party requesting a consumer's personal records may bring a motion under Section 1987.1 to enforce the subpoena within 20 days of service of the written objection. The motion shall be accompanied by a declaration showing a reasonable and good faith attempt at informal resolution of the dispute between the party requesting the personal records and the consumer or the consumer's attorney.”  (CCP §1985.3(g).) 

            For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement.  (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.)  Generally, all unprivileged information that is relevant to the subject matter of the action is discoverable if it would itself be admissible evidence at trial or if it appears reasonably calculated to lead to the discovery of admissible evidence.  (Code Civ. Proc. § 2017.010; Schnabel v. Superior Court (1993) 5 Cal.4th 704, 711.)  

Application to Facts

            Parties’ Positions

            On January 2, 2024, Defendants served Plaintiff with Notices to Consumer informing her that Defendants intended to serve Plaintiff’s health care providers, Burton A. Liebross, MD and Liliana Hernandez, LMFT, with deposition subpoenas.  On January 9, 2024, Plaintiff served objections in response to the Notice, arguing the document requests in the deposition subpoenas violated her privacy rights, were overbroad, unduly burdensome, sought manifestly irrelevant documents and were harassing. 

            Defendants argue Plaintiff’s objections are meritless. Defendants argue Plaintiff has placed her emotional and physical health at issue by claiming emotional and physical injuries.  Defendants argue Plaintiff therefore waived any objections based on privacy.  Defendants argue the document requests are not vague and ambiguous.  Defendants argue the requests are simple and direct, seeking each witness to produce his or her file on services provided to Plaintiff and invoices documenting those services.  Defendants argue the discovery requests are not burdensome or overbroad, as they mirror language Plaintiff has used in her discovery requests and would require production by a third party.  Defendants argue Plaintiff has failed to identify any possible overbreadth in the scope of the document requests. 

            Defendants ask that monetary sanctions be imposed against Plaintiff in connection with each motion to compel compliance.  Defendants ask that sanctions in the amount of $875 be imposed against Plaintiff and her attorney of record for the motion to compel compliance with the deposition subpoena on Liliana Hernandez, LMFT.  Defendants ask that sanctions in the amount of $3,325 be imposed on Plaintiff and her attorney in connection with the motion to compel compliance with the deposition subpoena on Burton A. Liebross, MD.

            In opposition, Plaintiff argues Defendants filed to meet and confer in good faith prior to filing this motion.  Plaintiff argues Defendants were required to meet and confer  per CCP §1985.3(g). 

            Plaintiff argues the requests are overly broad.  Plaintiff argues there is no time limit on the document requests, nor is there any limitation based on subject matter.  Plaintiff argues the only discoverable records are those directly relevant to the action.  Plaintiff argues she has not waived her privacy rights as to medical records that are not directly relevant to her claims.  Plaintiff argues the only medical condition at issue in this action is her stress-related medical leave. 

            Plaintiff asks that the court impose monetary sanctions on Defendants for having to oppose these meritless motions to compel compliance.  Plaintiff asks for sanctions in the amount of $1,050 per motion.

            In reply, Defendants argue they extensively met and conferred prior to filing these motions to compel compliance.  Defendants argue they met and conferred but were at an impasse when Plaintiff could not present any law or fact in support of her position that the requests had to be limited or withdrawn.

            Defendants argue the requested records are directly relevant to Plaintiff’s claims.  The third parties subpoenaed are medical providers identified by Plaintiff in her discovery responses as having treated her for her alleged “stress related” injuries.  Defendants argue Plaintiff’s alleged injury is also vaguely described.  Defendants argue, if the net cast by its discovery is wide, it is in large part because Plaintiff has defined her injuries so widely and vaguely. 

            Defendants argue Plaintiff also claimed she began to suffer abuse in the workplace in 2017 and that she began seeing Liebross and Hernandez for injuries in 2018 and 2022 respectively.  Defendants argue the records request is proper based on this time frame. 

            Defendants argue the requests are also simple and direct.  Defendants argue Plaintiff’s objection that they are not reasonably particularized is untenable. 

            Defendants argue Plaintiff and her counsel should be sanctioned for asserting baseless objections and forcing Defendants to file these motions to compel compliance.  Defendants argue Plaintiff’s claim that Defendants did not meet and confer in good faith is demonstrably false. 

            Defendants sufficiently met and conferred

            Defendants complied with CCP §1985.3(b)’s Notice to Consumer Requirement as to both deposition subpoenas by serving Notices on Plaintiff on January 2, 2024.  (Picker Decs., Ex. D.)  Plaintiff timely responded with objections on January 9, 2024.  (Id. at Ex. E.) 

            Thereafter, Defendants sufficiently met and conferred on the deposition subpoenas on January 16, 2024 and January 22, 2024.  (Id.)  Parties were unable to reach an agreement. 

            Plaintiff’s objections are overruled

            Privacy rights.  Medical records clearly fall within the right of privacy.  (John B. v. Sup. Ct. (2006) 38 Cal.4th 1177, 1198.)  Personal financial information comes within the zone of privacy protected by article I, section 1 of the California Constitution.  (Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 656.)

            The right of privacy is not absolute and may be waived.  “In determining whether one has waived the right of privacy by bringing suit, our Supreme Court has noted that although there may be an implicit partial waiver, the scope of such waiver must be narrowly, rather than expansively construed, so that plaintiffs will not be unduly deterred from instituting lawsuits by fear of exposure of private activities.  An implicit waiver of a party's constitutional rights encompasses only discovery directly relevant to the plaintiff's claim and essential to the fair resolution of the lawsuit.”  (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1014 (citing Vinson v. Supr. Ct. (1987) 43 Cal.3d 833, 842 (quoting Britt v. Supr. Ct. (1978) 20 Cal.3d 844, 859).)

            In addition, even where a right of privacy is shown, discovery may still be compelled under the test set forth in Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35.  “In Hill, we established a framework for evaluating potential invasions of privacy. The 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.  The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations.”  (Williams v. Superior Court (2017) 3 Cal.5th 531, 552 (citing Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35).)

            “In general, the court should not proceed to balancing unless a satisfactory threshold showing is made. A defendant is entitled to prevail if it negates any of the three required elements. A defendant can also prevail at the balancing stage. An otherwise actionable invasion of privacy may be legally justified if it substantively furthers one or more legitimate competing interests. (Hill, at p. 40, 26 Cal.Rptr.2d 834, 865 P.2d 633.) Conversely, the invasion may be unjustified if the claimant can point to “feasible and effective alternatives” with “a lesser impact on privacy interests.”  (County of Los Angeles v. Los Angeles County Employee Relations Com. (2013) 56 Cal.4th 905, 926.)

            Plaintiff identified both Liebross and Hernandez in her discovery responses as providers who treated her for her alleged injuries.  Plaintiff is seeking emotional distress damages and claims physical injuries as a result of Defendants’ wrongful conduct.  Plaintiff’s claimed injuries are also ill defined.  Plaintiff claims she was placed on work related stress leave.  Defendants request need not be limited to files pertaining only to Plaintiff’s work-related stress leave or injuries.  Defendants are entitled to conduct discovery into other possible causes of Plaintiff’s alleged emotional distress. 

            The failure to limit the records to a specific time period is not fatal to the requests.  Plaintiff claims the abuse began at work in 2017.  Plaintiff began to seek Liebross in 2018 and Hernandez in 2020 for her work related injuries.  There is therefore no need to limit the requested documents to a certain time period.  The entire period during which Liebross (2018-present) and Hernandez (2020-present) treated Plaintiff is relevant. 

            Plaintiff waived her right to privacy over her mental, physical and emotional health records during the relevant time period.  To the extent Plaintiff believes these records will reach irrelevant information about unrelated health conditions, Plaintiff fails to substantiate this concern.  The Court agrees that Plaintiff’s claimed injuries require that a broad net be cast.  

            Vague, ambiguous, failure to identify information with particularity, oppressive, harassing, overbreadth.  Plaintiff’s remaining objections are likewise meritless.  The documents requests are very straightforward and identify the responsive documents with particularity.  There are only four document requests contained in each deposition subpoena and they clearly identify the categories of documents requested with particularity.  For these same reasons, the requests are not overbroad, unduly burdensome, harassing or oppressive. 

            Sanctions

            “Except as specified in subdivision (c), in making an order pursuant to motion made under subdivision (c) of Section 1987 or 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 or that one or more of the requirements of the subpoena was oppressive.” (CCP §1987.2(a).)

            The court finds the motions were opposed without substantial justification.  Defendants’ request for sanctions is granted in the total amount of $1,750 for both motions to compel compliance is granted as to Plaintiff and her counsel.

                                                            CONCLUSION

            Defendants’ Motions to Compel Compliance with Deposition Subpoenas on Burton A. Liebross, MD and Liliana Hernandez, LMFT are granted.  Plaintiff and Plaintiff’s counsel are ordered to pay sanctions in the amount of $1,750. 

            Moving party to give notice.