Judge: Lisa R. Jaskol, Case: 21STCV40269, Date: 2023-08-07 Tentative Ruling

Case Number: 21STCV40269    Hearing Date: November 22, 2023    Dept: 28

Having considered the moving, opposing and reply papers, the Court rules as follows.  

BACKGROUND 

On November 2, 2021, Plaintiff Austin Richard Moreno (“Plaintiff”) filed this action against Defendants John Joseph Keith (“Keith”), Los Angeles County Sheriff’s Department, and Does 1-50 for violation of statute/breach of mandatory duty and negligence. 

On January 14, 2022, Defendants County of Los Angeles (erroneously sued as Los Angeles County Sheriff’s Department) (“County”) and Keith filed an answer. 

On October 5, 2023, Plaintiff filed a motion to quash the County’s subpoenas for records to be heard on November 22, 2023. On November 8, 2023, the County and Keith (“Defendants”) filed an opposition. On November 15, 2023, Plaintiff filed a reply. 

Trial is currently scheduled for March 8, 2024. 

PARTIES’ REQUESTS 

Plaintiff requests that the Court quash or modify the County’s subpoenas for Plaintiff’s education, financial, and medical records. 

Defendants request that the Court deny the motion. 

LEGAL STANDARD 

Code of Civil Procedure section 1987.1 provides: 

"(a) If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), 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 or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person. 

"(b) The following persons may make a motion pursuant to subdivision (a): (1) A party. (2) A witness. (3) A consumer described in Section 1985.3. (4) An employee described in Section 1985.6. (5) A person whose personally identifying information, as defined in subdivision (b) of Section 1798.79.8 of the Civil Code, is sought in connection with an underlying action involving that person’s exercise of free speech rights." 

(Code Civ. Proc., § 1987.1.) 

          Code of Civil Procedure section 1985.3, subdivision (g), provides in part: 

“(g)  Any consumer whose personal records are sought by a subpoena duces tecum and who is a party to the civil action in which this subpoena duces tecum is served may, prior to the date for production, bring a motion under Section 1987.1 to quash or modify the subpoena duces tecum. Notice of the bringing of that motion shall be given to the witness and deposition officer at least five days prior to production. The failure to provide notice to the deposition officer shall not invalidate the motion to quash or modify the subpoena duces tecum but may be raised by the deposition officer as an affirmative defense in any action for liability for improper release of records. 

* * * 

“No witness or deposition officer shall be required to produce personal records after receipt of notice that the motion has been brought by a consumer . . . except upon order of the court in which the action is pending or by agreement of the parties, witnesses, and consumers affected. . . .” 

(Code Civ. Proc., § 1985.3, subd. (g).) 

As a general rule, all unprivileged information that is relevant to the subject matter of the action is discoverable if it would be admissible evidence at trial or if it appears reasonably calculated to lead to the discovery of admissible evidence. (See Code Civ. Proc., § 2017.010; Schnabel v. Superior Court (1993) 5 Cal.4th 704, 711.) 

When a party seeks discovery which impacts a person’s constitutional right to privacy, limited protections come into play. (Shaffer v. Superior Court (1995) 33 Cal.App.4th 993, 999.) The protections cover a person’s personal and financial matters. (Ibid.) The court must balance competing rights — the litigant’s right to discover relevant facts and the individual’s right to maintain reasonable privacy — in determining whether the information is discoverable. (Ibid.) 

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.) 

DISCUSSION 

A.   Complaint 

The complaint alleges the following. 

On or about January 27, 2020, at approximately 7:00 p.m., Plaintiff was stopped in his vehicle, facing northbound at a red light on Virginia Avenue at its intersection with Alondra Boulevard in Paramount, California.  Plaintiff was waiting for the light to change. 

Keith was on duty in the course and scope of his employment with the Los Angeles County Sheriff’s Department.  He was driving a marked police vehicle and had activated his sirens and emergency lights.  Keith negotiated a right turn from eastbound Alondra Boulevard to southbound Virginia Avenue, but failed to drive at an appropriate speed as he pulled out into the intersection. As a result, Keith negligently caused a collision which impacted the driver’s side of Plaintiff’s vehicle. Keith’s improper operation of his vehicle directly and proximately caused Plaintiff to suffer severe bodily injuries. 

As a result of his injuries, Plaintiff is entitled to recover general, special, actual and compensatory damages including, but not limited to, his necessary medical and related expenses, past, present, and future lost earnings, loss of future earning capacity, and mental, emotional and physical pain and suffering. 

B.   Subpoenas 

On August 14, 2023, Defendants served eight subpoenas (on a high school, six colleges, and Plaintiff’s employer) requesting all records concerning Plaintiff.  Defendants served the subpoenas on: 

1. St. John Bosco High School

2. Orange Coast College

3. Cypress College

4. Golden West Community College

5. Long Beach City College

6. Saddleback College

7. Coastline Community College

8. Christie Digital 

According to Defendants, in September 2023 (before Plaintiff filed this motion), Defendants “unilaterally cancelled the original subpoenas pertaining to Plaintiff’s educational and employment records and had them reissued with a much narrower scope of 5 years before the incident.”  (Opposition p. 6; see Mallory Dec. ¶ 5 [attaching as Exhibit C “true and correct copies of the notices of cancellation the original subpoenas”]; Exh. C [September 15, 2023 “Notices of Completion” from litigation support company stating: “Served SDT. Request for records was cancelled per your instructions. We are issuing a new subpoena with limitations”].) 

On October 11, 2023, Defendants served new subpoenas on eleven recipients, including some that were not included in the previous round of subpoenas.  (Mallory Dec. ¶ 6 [“Attached hereto as Exhibit ‘D’ are true and correct copies of the revised subpoenas I caused to be issued reflecting the new, narrowly tailored scope of the modified and re-issued subpoenas”].) 

Defendants apparently served the new subpoenas on: 

1.    Coastal Diagnostic Services, Inc.

2.    Coastal Diagnostic Services, Inc. -- Billing

3.    MAX MRI Imaging

4.    John Bosco High School

5.    Orange Coast College

6.    Cypress College

7.    Golden West Community College

8.    Saddleback College

9.    Coastline Community College (Costa Mesa)

10. Coastline Community College (Fountain Valley)

11. Long Beach City College 

(Mallory Dec. Exh. D.) 

          The new subpoenas seek responsive documents from January 1, 2015 to the present.  The subpoenas served on the schools state: 

THE RECORDS REQUESTED ARE from 01/01/2015 to present FOR THE FOLLOWING TYPES OF RECORDS: ALL ACADEMIC RECORDS, ATTENDANCE RECORDS, GRADES, SCHOOL PHYSICALS, MEDICAL RECORDS, STUDENT TRANSCRIPTS, COURSES OR CLASSES TAKEN, AWARDS, SCHOLARSHIPS, DISCIPLINARY RECORDS, AND ANY OTHER ACADEMIC RECORDS, INCLUDING BUT NOT LIMITED TO ANY RECORDS/DOCUMENTS THAT MAY BE STORED DIGITALLY AND/OR ELECTRONICALLY RELATING TO AUSTIN RICHARD MORENO, DOB: 4/30/1989, SS#: . 

The subpoena served on Coastal Diagnostic Services, Inc., states: 

THE RECORDS REQUESTED ARE from 01/01/2015 to present FOR THE FOLLOWING TYPES OF RECORDS: ANY AND ALL FILMS, ORIGINAL X-RAY FILMS, CT SCANS AND MRI FILMS, INCLUDING ANY FILMS/IMAGES THAT MAY BE STORED DIGITALLY AND/OR ELECTRONICALLY, RELATING TO AUSTIN RICHARD MORENO, DOB: 4/30/1989, SS#: . 

The subpoena served on Coastal Diagnostic Services, Inc. -- Billing states:

THE RECORDS REQUESTED ARE from 01/01/2015 to present FOR THE FOLLOWING TYPES OF RECORDS: ANY AND ALL BILLINGS, STATEMENT OF CHARGES, STATEMENTS OF ACCOUNTS, WRITINGS, AND DOCUMENTS REFLECTING THE FOLLOWING: ANY AND ALL PAYMENTS MADE OR RECEIVED, ANY AND ALL CREDITS, ADJUSTMENTS, WRITE-OFFS, RECONCILIATIONS, CONTRACT PRICE PAYMENTS OR REDUCTION, PAYMENTS BY ANY HEALTH INSURANCE ENTITY, PERSONAL PAYMENTS BY OR TO SAID PATIENT FROM ANY SOURCE, HMO, PPO, MEDI-CAL, MEDICARE OR CONTRACT PAYMENTS BY ANY ENTITY CONCERNING SAID PATIENT, BILLING LEDGERS, REPORTS AND/OR STATEMENTS OF CHARGES RENDERED AND ANY INSURANCE RECORDS, INCLUDING BUT NOT LIMITED TO ANY RECORDS/DOCUMENTS THAT MAY BE STORED DIGITALLY AND/OR ELECTRONICALLY THIS REQUEST FOR RECORDS INCLUDES ANY AND ALL EVIDENCE OF ANY PAYMENTS FROM ANY SOURCE REGARDING THE ACCOUNT OF THIS PATIENT TO OR FROM ANY PERSON AND/OR ENTITY, IN REFERENCE TO AUSTIN RICHARD MORENO, DOB: 4/30/1989 SS#: 

The subpoena served on MAX MRI Imaging states: 

THE RECORDS REQUESTED ARE from 01/01/2015 to present FOR THE FOLLOWING TYPES OF RECORDS: ANY AND ALL BILLINGS, STATEMENT OF CHARGES, STATEMENTS OF ACCOUNTS, WRITINGS, AND DOCUMENTS REFLECTING THE FOLLOWING: ANY AND ALL PAYMENTS MADE OR RECEIVED, ANY AND ALL CREDITS, ADJUSTMENTS, WRITE-OFFS, RECONCILIATIONS, CONTRACT PRICE PAYMENTS OR REDUCTION, PAYMENTS BY ANY HEALTH INSURANCE ENTITY, PERSONAL PAYMENTS BY OR TO SAID PATIENT FROM ANY SOURCE, HMO, PPO, MEDI-CAL, MEDICARE OR CONTRACT PAYMENTS BY ANY ENTITY CONCERNING SAID PATIENT, BILLING LEDGERS, REPORTS AND/OR STATEMENTS OF CHARGES RENDERED AND ANY INSURANCE RECORDS, INCLUDING BUT NOT LIMITED TO ANY RECORDS/DOCUMENTS THAT MAY BE STORED DIGITALLY AND/OR ELECTRONICALLY THIS REQUEST FOR RECORDS INCLUDES ANY AND ALL EVIDENCE OF ANY PAYMENTS FROM ANY SOURCE REGARDING THE ACCOUNT OF THIS PATIENT TO OR FROM ANY PERSON AND/OR ENTITY, AND ALL FILMS, ORIGINAL X-RAY FILMS, CT SCANS AND MRI FILMS, INCLUDING ANY FILMS/IMAGES THAT MAY BE STORED DIGITALLY AND/OR ELECTRONICALLY IN REFERENCE TO AUSTIN RICHARD MORENO, DOB: 4/30/1989 SS#: 

C.   Analysis 

1.    Subpoena served on Christie Digital 

The subpoena served on Christie Digital stated: 

THE RECORDS REQUESTED ARE regardless of date FOR THE FOLLOWING TYPES OF RECORDS: ANY AND ALL EMPLOYMENT RECORDS, WAGE RECORDS, PERSONNEL RECORDS, ATTENDANCE RECORDS, EMPLOYMENT APPLICATIONS, W-2’S, W-4’S, CONTRACTS, 1099’S, RESUMES, PAYROLL RECORDS, VACATION SCHEDULE, SICK LEAVE, LEAVE OF ABSENCE RECORDS, INSURANCE RECORDS, BENEFITS, EVALUATIONS AND ANY OTHER RECORDS, INCLUDING BUT NOT LIMITED TO ANY RECORDS/DOCUMENTS THAT MAY BE STORED DIGITALLY AND/OR ELECTRONICALLY PERTAINING TO THE EMPLOYMENT OF AUSTIN RICHARD MORENO, DOB: 4/30/1989, SS#: . 

          Defendants state that they cancelled the original subpoena “pertaining to Plaintiff’s . . . employment records” and issued a new subpoena. (Opposition p. 6, emphasis added.)  However, Defendants did not provide paperwork supporting this assertion.  (See Mallory Dec. Exh. C [paperwork shows only cancellation of subpoenas issued to schools].)  Because it appears that Defendants may not have withdrawn the original subpoena issued to Christie Digital, the Court will address Plaintiff’s motion to quash this subpoena. 

Plaintiff argues the records sought from Christie Digital are not discoverable because Plaintiff is not making a claim for lost earnings or loss of earning capacity. Plaintiff’s complaint, however, states that Plaintiff is seeking “past, present, and future lost earnings, [and] loss of future earning capacity.”  Plaintiff has not amended his complaint or filed a stipulation agreeing not to pursue lost earnings and lost earning capacity as elements of damages.  Defendants are entitled to rely on the allegations of the complaint in pursuing discovery. 

Plaintiff also argues that the subpoena violates his right to financial privacy. In response, Defendants assert: “Contrary to Plaintiff’s focus on the financial aspects of his employment records, Defendants seek Plaintiff’s employment (and educational records) only to fully ascertain the nature and scope of Plaintiff’s alleged significant traumatic brain injury and neck injuries particularly to ascertain the impact said significant injuries have had on his life. Specifically, the defense seeks to determine the existence of any pre-existing stuttering, loss of memory, optical issues and other cognitive challenges; symptoms that Plaintiff has specifically attributed to the traumatic brain injury he alleges resulted from the subject traffic collision. In that same vein, if said symptomatology is documented in Plaintiff’s educational and/or employment records, the defense can ascertain the manner in which said challenges have impacted Plaintiff’s educational experience and employment performance both before and after the subject collision. This information is directly relevant and critically important to the determination of the amount of monetary recompense Plaintiff is seeking in this litigation.”  (Opposition pp. 5-6; see also Opposition pp.  10-11.) 

Defendants’ argument is not persuasive.  Defendants do not need the extensive financial documents listed in the subpoena to ascertain the nature and scope of Plaintiff’s injuries and their effect on his life.  The Court finds that the subpoena is overbroad and violates Plaintiff’s right to privacy.  The Court quashes the subpoena served on Christie Digital. 

2.    Subpoenas served on schools 

Plaintiff does not acknowledge that Defendants withdrew the original subpoenas served on the schools on August 14, 2023, and issued new subpoenas to the schools on October 11, 2023.  Plaintiff’s moving and reply papers both address only the original set of subpoenas.  The revised subpoenas are sufficiently different from the original subpoenas that Plaintiff was required to address the new subpoenas in his motion or file a new motion if he wanted the Court to address his challenge to the subpoenas served on the schools. 

Because Plaintiff’s motion addresses only the original subpoenas served on the schools, which Defendants have withdrawn, the Court denies the motion with respect to the schools as moot.  

3.    Medical services providers 

Plaintiff’s motion and reply do not address the subpoenas served on Coastal Diagnostic Services, Inc., Coastal Diagnostic Services, Inc. – Billing, and MAX MRI Imaging on October 11, 2023.  Therefore, these subpoenas are not before the Court and the Court does not address them. 

CONCLUSION 

The Court GRANTS Plaintiff Austin Richard Moreno’s motion to quash the subpoena for records served by Defendant County of Los Angeles on Christie Digital on August 14, 2023.  The Court quashes the subpoena. 

The Court DENIES AS MOOT Plaintiff Austin Richard Moreno’s motion to quash the subpoenas for records served by Defendant County of Los Angeles on St. John Bosco High School, Orange Coast College, Cypress College, Golden West Community College, Long Beach City College, Saddleback College, and Coastline Community College on August 14, 2023. 

Moving party is ordered to give notice of this ruling. 

Moving party is ordered to file the proof of service of this ruling with the Court within five days.