Judge Loren G. Freestone, Case Number: 37-2023-00026063-CU-MM-CTL, Date: 2024-06-14 Tentative Ruling

Judge: Loren G. Freestone, Case: 37-2023-00026063-CU-MM-CTL, Date: 2024-06-14 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 13, 2024

06/14/2024 10:30:00 AM C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited Medical Malpractice Motion to Quash (Civil) 37-2023-00026063-CU-MM-CTL LEWIS VS KHAJAVI DMD [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Plaintiffs Franklin Lewis and Dena Bancroft's motion to quash Defendants Azadeh Khajavi DMD and Azadeh Khajavi DMD Inc.'s deposition subpoena for production of records served on Michael Brady, Ph.D. is GRANTED.

Dr. Brady is a psychotherapist. Defendants essentially seek Dr. Brady's entire file on Lewis. Lewis moves to quash based on his constitutional right of privacy and the psychotherapist-patient privilege.

A plaintiff's psychiatric records are protected by both a constitutional right of privacy and by the psychotherapist-patient privilege. (See Cal. Const., art. I, § 1; Evid. Code, §§ 1012, 1014; In re Lifschutz (1970) 2 Cal.3d 415, 430–437; Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1013–1014.) In order to overcome either, the psychiatric records must be 'directly relevant' to the plaintiff's claim. (See Lifschutz, supra, 2 Cal.3d at pp. 431, 435–437; Davis, supra, 7 Cal.App.4th at p. 1014.) 'The burden is on the party seeking the constitutionally protected information to establish direct relevance.' (Davis, supra, 7 Cal.App.4th at p. 1017.) In evaluating the relevancy of psychiatric records, the focus is on 'the nature of the specific 'emotional or mental' condition which the plaintiff has voluntarily disclosed and tendered in his pleadings or in answer to discovery inquires.' (Lifschutz, supra, 2 Cal.3d at p. 431, 435–436.) Such records may not be discoverable if the plaintiff is claiming emotional distress that 'is merely the 'normal' distress experienced as a result of physical assault,' whereas such records may be discoverable if the plaintiff is claiming emotional distress that 'includes unusual or particularly serious elements.' (Id. at p. 436.) A plaintiff 'may have to delimit his claimed 'mental or emotional distress'' to successfully maintain the confidentiality of his psychiatric records. (Id. at pp. 436–437.) In Davis, for example, the plaintiff filed a lawsuit for personal injuries suffered in an automobile accident.

(Davis, supra, 7 Cal.App.4th at p. 1011.) The defendant subpoenaed a medical facility seeking 'any and all medical or hospital records relating to the care and treatment of [the plaintiff] to date,' arguing they were relevant to 'pain and suffering' and 'emotional distress,' among other issues. (Id. at pp.

1011–1012, 1017.) The trial court denied the plaintiff's motion to quash, limited the discovery to the last 10 years, and directed that the records be confidential and used only for the litigation. (Id. at p. 1011.) The plaintiff then petitioned for a writ of mandate on the ground the trial court's order invaded her constitutional right of privacy and violated her statutory psychotherapist-patient privilege. (Id. at p. 1013.) Calendar No.: Event ID: TENTATIVE RULINGS

3095344 34 CASE NUMBER: CASE TITLE: LEWIS VS KHAJAVI DMD [IMAGED] 37-2023-00026063-CU-MM-CTL The Davis court rejected the general proposition that a plaintiff's mental and emotional condition is always at issue in personal injury actions based on the right to pursue noneconomic damages. (Id. at pp. 1015–1016.) The court then noted that the plaintiff had expressly indicated that she was making 'no claim for damages for 'mental and emotional distress' apart from her claim for damages for pain and suffering associated with the injuries sustained in the subject automobile accident.' (Id. at p. 1015.) 'By so stating, [the plaintiff] limited her claim for emotional distress to pain and suffering associated with the injuries she sustained to her left wrist, upper arm, shoulder, neck, back and right knee.' (Ibid.) The court also noted that the plaintiff indicated that the subpoenaed medical center had provided no treatment to her in connection with the injuries for which she sought compensation in the case. (Ibid.) 'By limiting her claim for emotional distress to pain and suffering associated with stated physical injuries, and by explaining that the center provided no treatment in connection with the injuries for which compensation was sought, petitioner established that it is not reasonably probable that the records are directly relevant to the condition she placed in issue.' (Id. at p. 1017.) The defendant, in turn, offered only speculation 'that in the records requested there could be material which might be relevant to various issues in the action, such as the nature and extent of emotional distress suffered, causation of the accident and petitioner's condition at the time of the accident.' (Ibid.) The court therefore issued the writ, finding the subpoena overbroad and encompassing privileged material that was not relevant to the lawsuit. (Id. at p. 1018.) Here, Defendants argue that the psychotherapy records are directly relevance because Lewis has alleged a cause of action for intentional infliction of emotional distress. Notably, no such claim was at issue in Davis. (See Davis, supra, 7 Cal.App.4th at p. 1015.) An essential element of a claim for IIED is 'severe emotional distress.' (CACI 1600.) As such, the assertion of an IIED claim will generally render psychiatric records directly relevant and overcome a corresponding privacy objection. (See Vinson v. Superior Court (1987) 43 Cal.3d 833, 839–840, 842; Curtis Conyers v. Marisa Cano (C.D. Cal. Sept. 25, 2020) 2020 WL 7084546 at *3–4.) However, similar to Davis, Lewis has offered to stipulate that he 'will only seek and present evidence of garden-variety damages in this action for the causes of action pled.' More specifically, Lewis offered to stipulate that he 'will not claim he suffered any psychiatric condition separate and apart from the garden-variety emotional distress that an ordinary person who has been subject to conduct similar to Defendants' would have experienced from the incidents in this case, for the causes of action pled.' And although, unlike Davis, Lewis did treat with Dr. Brady, Lewis also indicated in his motion that he 'will not seek economic damages related to his treatments with Dr. Brady or introduce expert medical testimony regarding his emotional distress at trial.' Defendants essentially argue that the proposed stipulation is inconsistent with the IIED claim. Perhaps.

(See J.C. v. County of Los Angeles (C.D. Cal., Dec. 3, 2020) 2020 WL 10618620 at *2 [awarding attorney fees because plaintiffs '[c]ontinuing to litigate the IIED claim after acknowledging that they suffered only 'garden variety' emotional distress was frivolous'].) But the issue before the court is not the impact of the stipulation on the merits of the case, but rather its impact on the permissible scope of discovery. As the stipulation essentially limits Lewis to general pain and suffering flowing from the dental work, the mere presence of an IIED claim does not render the psychotherapy records directly relevant.

In light of Lewis' proposed stipulations set forth above, to which Lewis is deemed bound, the court finds that the psychotherapy records are not directly relevant to this case. The motion to quash is therefore granted.

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