Judge: Lee W. Tsao, Case: 22STCV23004, Date: 2023-01-24 Tentative Ruling

Case Number: 22STCV23004    Hearing Date: January 24, 2023    Dept: C

MCCLENON v. CITY OF CERRITOS

CASE NO.:  22STCV23004

HEARING:  1/24/23 @ 10:30 AM

#4

TENTATIVE RULING

Plaintiffs J. and K. McClenon, and Kasarda’s motion to quash is GRANTED.

Moving Parties to give NOTICE.

Plaintiffs J. and K. McClenon, and Kasarda move to quash subpoena for production of business records pursuant to CCP § 1987.1.

This is a trip and fall case.  On September 26, 2021, Decedent David McClenon tripped and fell on an uneven sidewalk, leading to his hospitalization and death on October 26, 2021.  The operative First Amended Complaint asserts causes of action for:

1.    Dangerous Condition of Public Property (v. City of Cerritos)

2.    Negligence (v. Brightview Tree Case Services)

3.    Premises Liability (v. Brightview Tree Case Services)

4.    Wrongful Death (v. all Defendants)

Upon filing the motion to quash, the court shall determine whether the documents subject to the subpoena are material to the pleading case or whether the production will violate a privilege or privacy right.  (Southern Pacific Co. v. Superior Court (1940) 15 Cal.2d 2016, 210.)  The court “may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon such terms or conditions as the court shall declare, including protective orders.” (CCP §1987.1)

On October 10, 2022, Defendant City of Cerritos served amended subpoenas to USAA Insurance Company for Decedent David McClenon’s records.

“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). This service shall be made as follows… (3) At least five days prior to service upon the custodian of the records, plus the additional time provided by Section 1013 if service is by mail.”  (CCP § 1985.3(b)(3).)

City failed to serve the subpoenas upon Decedent’s heirs, “at least five days prior to service upon the custodian of the records.”  Therefore, the subpoenas are procedurally defective.

Substantively, the court finds that the subpoenas do not violate Decedent’s right of privacy or are overbroad, and do not violate the Insurance Code because insurance records can be disclosed if "permitted or required by law."  (Ins. Code § 791.13(g).)

The USAA records are subject to disclosure as they are directly relevant to the claims made herein.  Decedent is alleging personal injuries, and legally subject to disclosure.  By filing the lawsuit, the Decedent (and his heirs) have waived his right of privacy regarding Decedent’s health condition, injuries, and treaters prior to the incident.  Decedent’s death certificate attributed his cause of death to a long history of heart problems. (Ferrante-Alan Decl., ¶ 4, Ex. B.)  Further, Decedent was involved in multiple vehicle collisions within the three years prior to his death, including a collision with an 18 wheeler 6 months prior to the incident (Id., ¶ 3, Ex. A.)  City is entitled to ascertain if the Decedent had any similar injuries in past incidents and their affect, if any, on his life span.

Accordingly, the motion is GRANTED on procedural grounds.