Judge: Lisa R. Jaskol, Case: 22STCV14520, Date: 2024-05-01 Tentative Ruling
All parties are urged to meet and confer with all parties concerning this tentative ruling to see if they can reach an agreed-upon resolution of their matter. If you are able to reach an agreement, please notify the courtroom staff in advance of the hearing if you wish to submit on the tentative ruling rather than argue the motion by notifying the court by e-mailing the court at: SSCDEPT28@lacourt.org. Include the word "SUBMITS" in all caps and the Case Number in the Subject line. In the body of the email, please provide the date and time of the hearing, your name, your contact information, the party you represent, and whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, intervenor, or non-party, etc.
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Case Number: 22STCV14520 Hearing Date: May 1, 2024 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
PROCEDURAL HISTORY
On May 2, 2022, Plaintiffs Thomas Skehan (“Skehan”) and Brendan Trainotti (“Trainotti”) filed this action against Defendants The Hertz Corporation (“Hertz”), John Doe Renter, Darva Rycewicz (“Rycewicz”), and Does 1-100 for motor vehicle tort. On January 23, 2024, Plaintiffs amended the complaint to include Defendant Harlea Moreno in place of John Doe Renter.
On July 25, 2022, Hertz filed an answer and a cross-complaint against Cross-Defendants Trainotti and Roes 1-25 for indemnification, apportionment of fault, and declaratory relief.
Also on July 25, 2022, Hertz filed a Notice of Permanent Injunction Pursuant to Bankruptcy Court Confirmation Order and Demand for Dismissal. The notice stated that Hertz had filed bankruptcy under Chapter 11, Case No. 20-11218 (MFW), in the U.S. Bankruptcy Court for the District of Delaware. According to the notice, “all entities that have held, hold or may hold claims or interests against [Hertz] . . . are permanently enjoined from and after the effective date of June 30, 2021, from commencing or continuing in any manner any action or other proceeding of any kind on account or in connection with or with respect to any such claims or interest.”
On August 7, 2023, the Court stayed the entire action.
On October 30, 2023, Hertz filed a motion (1) for an order directing the Center for Integrated Care (“Center”) to comply with a subpoena for production of records, (2) for an order compelling Trainotti to execute an authorization allowing the Center to release Trainotti’s medical records, and (3) for sanctions. The motion was set to be heard on February 8, 2024. On January 26, 2024, Trainotti filed an opposition and request for sanctions. On February 1, 2024, Hertz filed a reply. The Court continued the hearing to May 1, 2024.
No trial is currently scheduled.
PARTIES’ REQUESTS
Hertz asks the Court (1) to order the Center to comply with Hertz’s subpoena for records, (2) to order Trainotti to provide a signed authorization for the Center to produce the requested records, and (3) to impose sanctions on Trainotti.
Trainotti asks the Court to deny the motion and to impose sanctions on Hertz.
LEGAL STANDARD
Code of Civil Procedure section 2020.010 provides:
“(a) Any of the following methods may be used to obtain discovery within the state from a person who is not a party to the action in which the discovery is sought:
“(1) An oral deposition under Chapter 9 (commencing with Section 2025.010).
“(2) A written deposition under Chapter 11 (commencing with Section 2028.010).
“(3) A deposition for production of business records and things under Article 4 (commencing with Section 2020.410) or Article 5 (commencing with Section 2020.510).
“(b) Except as provided in subdivision (a) of Section 2025.280, the process by which a nonparty is required to provide discovery is a deposition subpoena.”
(Code Civ. Proc., § 2020.010.)
Code of Civil Procedure section 2020.020 provides:
“A deposition subpoena may command any of the following:
“(a) Only the attendance and the testimony of the deponent, under Article 3 (commencing with Section 2020.310).
“(b) Only the production of business records for copying, under Article 4 (commencing with Section 2020.410).
“(c) The attendance and the testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things, under Article 5 (commencing with Section 2020.510).”
(Code Civ. Proc., § 2020.020.)
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.
“(c) Nothing in this section shall require any person to move to quash, modify, or condition any subpoena duces tecum of personal records of any consumer served under paragraph (1) of subdivision (b) of Section 1985.3 or employment records of any employee served under paragraph (1) of subdivision (b) of Section 1985.6.
(Code Civ. Proc., § 1987.1.)
Code of Civil Procedure section 2025.480 provides in part:
“(a) If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.
“(b) This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.
“(c) Notice of this motion shall be given to all parties and to the deponent either orally at the examination, or by subsequent service in writing. If the notice of the motion is given orally, the deposition officer shall direct the deponent to attend a session of the court at the time specified in the notice.
* * *
“(i) If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition.
“(j) 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 to compel an answer or production, 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., § 2025.480, subds. (a), (b), (c), (h), (i), (j).)
DISCUSSION
A. The Court modifies the stay
On August 7, 2023, the Court stayed the entire action in response to Hertz’s July 25, 2022 Notice of Permanent Injunction Pursuant to Bankruptcy Court Confirmation Order and Demand for Dismissal.
The Court now modifies its August 7, 2023 stay order and limits the stay to the claims specified in Hertz’s July 25, 2022 notice.
As modified, the stay does not prevent the Court from considering Hertz’s motion.
B. Background
In his discovery responses, Trainotti stated that the Center provided psychotherapy for an injury that he attributes to the accident.
On August 21, 2023, Hertz issued a deposition subpoena to the Center for production of business records with a production date of September 14, 2023. The subpoena asks the Center to produce Trainotti’s complete medical records, including (among other things) cardiology reports, radiology reports, x-ray reports, MRI reports, CT reports, myelogram reports, tomograms, MRAs, PET scans, CAT scans, fluoroscopy, discograms, and EMGs.
On September 13, 2023, the Center sent Hertz a letter objecting to the subpoena. In the letter, the Center asserted the psychotherapist/patient privilege and the California constitution’s recognition of a right to privacy. The Center stated that it required either Trainotti’s written authorization or a court order to release the records.
Trainotti has refused Hertz’s request for a written authorization to obtain the Center’s records.
C. Hertz’s request to compel the Center’s compliance with the subpoena
1. California Rules of Court, rule 3.1346
California Rules of Court, rule 3.1346, provides:
“A written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.”
(Cal. Rules of Court, rule 3.1346 (“Rule 3.1346”).)
Trainotti asserts that Hertz failed to comply with Rule 3.1346 because it did not personally serve its motion on the Center and the Center has not agreed to accept service by mail or electronic service at an address or electronic service address specified on a deposition record. Therefore, Trainotti argues, the Court should deny the motion.
Hertz responds that (1) it served the motion on the Center by certified mail “return receipt requested” at the same address listed on the subpoena, (2) the Center received the subpoena, and (3) “it is immaterial” that Hertz did not personally serve the motion on the Center. The argument is not persuasive because it assumes that noncompliance with a rule of court is not material.
Hertz also suggests that Rule 3.1346 does not apply because the Center was not deposed. The Court has found no published authority on the question whether the rule applies only when the deponent has already attended a deposition. Because Hertz’s interpretation is a plausible reading of the rule and Trainotti has shown no prejudice from Hertz’s failure to personally serve the Center, the Court finds that any noncompliance with Rule 3.1346 does not require the Court to deny the motion.
2. Privacy
Hertz argues the Court should compel the Center to produce the responsive records because the records are relevant and material to Trainotti’s claims for mental and emotional injuries. According to Hertz, Trainotti has reduced his expectation of privacy by filing a lawsuit. (Motion p. 8.)
“ ‘[W]hile the filing of a lawsuit may implicitly bring about a partial waiver of one’s constitutional right of associational privacy, the scope of such “waiver” must be narrowly rather than expansively construed, so that plaintiffs will not be unduly deterred from instituting lawsuits by the fear of exposure of their private associational affiliations and activities.’ [Citation.] Therefore, . . . 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.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 842; see ibid. [“On occasion [a party's] privacy interests may have to give way to [the] opponent's right to a fair trial. Thus courts must balance the right of civil litigants to discover relevant facts against the privacy interests of persons subject to discovery”].)
“Even when discovery of private information is found directly relevant to the issues of ongoing litigation, it will not be automatically allowed; there must then be a careful balancing of the compelling public need for discovery against the fundamental right of privacy. [Citation.] The scope of any disclosure must be narrowly circumscribed, drawn with narrow specificity, and must proceed by the least intrusive manner. [Citation.]” (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1014.)
“The showing required to overcome the protection depends on the nature of the privacy right asserted; in some cases, a simple balancing test is sufficient, while in others, a compelling interest must be shown.” (L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 8:294, p. 8C-98 (Cal. Practice Guide: Civil Procedure Before Trial).)
“Although a plaintiff suing for personal injuries waives the physician-patient privilege with respect to the conditions in controversy [citation], plaintiff still has a right of privacy in plaintiff’s medical records. Compelled disclosure of the records turns on balancing the need for disclosure against the need for confidentiality. Ordinarily, disclosure of relevant medical history is allowed because defendants have no other means by which to obtain this information. [Citations.] [¶] But this does not open up plaintiff’s ‘lifetime’ medical history. Plaintiff still has privacy rights as to physical and mental conditions unrelated to the claim or injury sued upon.” (R. Fairbank, N. Epstein, M. Wegner & L. Wegner, Cal. Practice Guide: Civil Trials and Evidence (Rutter 2022) ¶ 8:2720, p. 8E-235, emphasis added.)
“The
burden is on ‘the party asserting a privacy interest to establish its extent
and the seriousness of the prospective invasion,’ and then the court must
‘weigh the countervailing interests the opposing party identifies.’ ” (Cal. Practice Guide: Civil Procedure Before
Trial, supra, ¶ 8:294, p. 8C-98.)
Trainotti's opposition also addressed the issue of service under Rule 3.1346 and it may have been prudent to address the privacy issue as well. Nonetheless, the Court will continue the hearing on Hertz's motion to give Trainotti an opportunity to address the issue of whether the subpoena violates his privacy rights.
D. Hertz’s request to compel Trainotti to authorize the
Center’s production of responsive records
E. Sanctions
The Court defers both parties’ requests for sanctions to the continued hearing date.
CONCLUSION
Plaintiff Brendan Trainotti may file a supplemental brief no later than 20 days before the continued hearing. Defendant The Hertz Company may file a response to Plaintiff Brendan Trainotti's supplemental brief no later than 10 days before the continued hearing. Plaintiff Brendan Trainotti may file a reply no later than 5 days before the continued hearing.
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.