Judge: Maren Nelson, Case: 23STCP00500, Date: 2023-09-26 Tentative Ruling

Case Number: 23STCP00500    Hearing Date: September 26, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendant’s motions to quash are DENIED. The scope of the subpoenas is narrowed to: July 1, 2021 - March 1, 2022. 

            On 2/21/2023, Walter Pearce (Plaintiff) filed suit against Gardena Retirement Center, Inc. dba Gardena Retirement Center (Defendant), alleging: (1) dependent adult abuse/neglect; and (2) negligence.

            Now, Defendant moves to quash two subpoenas for Community Care Licensing Division (CCLD) records.

Factual Background

            Plaintiff was in the care of Defendant. Plaintiff alleges that on 2/26/2022, he—who is paraplegic and could not feel the temperature of the water on his lower limbs—was scalded by hot water after he entered the bathtub. Plaintiff allegedly suffered at least second degree burns as skin, fascia and muscle sloughed off his lower legs in the bathtub.

Discussion

            Defendant argues that the subpoenas served on the CCLD are overbroad, irrelevant, and seek privileged materials.

            The two subpoenas in question request the following records:

-         “1. California Department of Social Services' Unusual Injury Reports for GARDENA RETIREMENT CENTER from 1/1/2019 to present. FACILITY NAME: GARDENA RETIREMENT CENTER FACILITY NUMBER: 197607366 ***THIS REQUEST DOES NOT SEEK THE IDENTITY OF ANY RESIDENT, BUT RATHER SEEKS INFORMATION BEARING UPON THE INCIDENTS/INJURIES REPORTED BY THE FACILITY AT ISSUE. PLEASE REDACT OR DELETE THE NAME OF ANY RESIDENT LISTED IN THE RESPONSIVE DOCUMENTS

-         “1. The entire investigative file, including, but not limited to, letters, outlining complaints, field notes, summary reports, resident review worksheets, surveyor notes, worksheets, telephone message slips, time sheets, reports, memoranda, color photographs, records, interviews, audiotapes, videotapes, correspondence, plans of correction prepared by Gardena Retirement Center relating to the subject deficiencies, and documents evidencing completion of the plans of correction relating to the subject deficiencies, regarding the Facility Evaluation Report, attached hereto as Exhibit “1.” FACILITY NAME: GARDENA RETIREMENT CENTER FACILITY NUMBER: 197607366.

            After review, the Court finds the requests to be discoverable under the limited scope of July 1, 2021 to March 1, 2022.

            As for relevancy and scope, Defendant broadly argues that the records could not be relevant because this action concerns an incident on 2/26/2022, and thus any records before or after are irrelevant. However, Title 22 of the California Code of Regulations, section 87303, specifically required the facility to maintain hot water controls in faucets and bathtubs for residents so that the temperature was not more than 120 degrees Fahrenheit. Here, Plaintiff alleges that Defendant was not in compliance with this regulation, and this led to Plaintiff sustaining at least second degree burns in the bathtub. In order to establish whether or not Defendant was aware, or should have been aware, that it was not in compliance with this regulation, it is clearly relevant whether or not other residents had sustained similar injuries, and whether or not Defendant was investigated for similar conduct or had any reason to be on notice that it was out of compliance with this regulation. During a meet and confer conference, Plaintiff agreed to limit the scope of the subpoena from 2018 to July 1, 2021 to March 1, 2022. According to Plaintiff,  Defendant did not further meet and confer on the narrowed timeframe, and instead filed this motion to quash. Given that Defendant offers no alternative appropriate scope, and given that the Court finds investigative complaints/incidents leading up to, and shortly following, Plaintiff’s injury to be relevant, the Court accepts this narrowed scope.

            As to privilege and privacy concerns raised by Defendant, the Court finds a number of methods exist to mitigate these concerns.

First, Government Code section 6253 provides: “(b) Except with respect to public records exempt from disclosure by express provisions of law, each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records, shall make the records promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable. Upon request, an exact copy shall be provided unless impracticable to do so.” As such, here, disclosure of these public records is contemplated and it is the duty of CCLD to disclose public records where appropriate.

Second, as indicated in Plaintiff’s subpoenas, all names and identifying information can be redacted and/or deleted. Moreover, CCLD actually redacts all personal identifying information prior to production. While Defendant cites Binder v. Superior Court (1987) 196 Cal.App.3d 893 to argue that redaction of medical records is insufficient, there are a number of other cases which find redaction to be sufficient. (See e.g. Kizer v. Sulnick (1988) 202 Cal.App.3d 431, 438; Board of Medical Quality Assurance v Hazel Hawkins Memorial Hospital (1982) 135 Cal.App.3d 561, 565.) For example, the Kizer court stated:

It is also significant that Gherardini involved a demand for individually identifiable medical records. In contrast, Board of Medical Quality Assurance v. Hazel Hawkins Memorial Hospital (1982) 135 Cal.App.3d 561, arose from a demand for the medical records of four unnamed patients. In that case the court held that the right of privacy discussed in Gherardini did not apply "because neither disclosure of the patients' identities nor disclosure of identifying medical information was requested." (Id. at p. 565, 185 Cal.Rptr. 405.) In the present case, the court below was not given a detailed description of the contents of the health study. Therefore, the record does not disclose whether the study refers to identifiable individually medical records. It such records are part attic study, the right to privacy would justify, at most, either the deletion of any named medical records upon the remainder of the health study being produced or, if feasible, the deletion of information which individually identifies the participants. The right to privacy does not support a blanket denial of appellant's petition to compel production of the entire health study on the record before this court.

(Kizer, supra, 202 Cal.App.3d at p. 438.)

Third, the Court finds no violation of HIPPA. While Defendant argues that Plaintiff’s subpoenas will require disclosure of records regarding patients/residents’ private health information, HIPAA only protects "individually identifiable health information" of patients. 45 C.F.R. §160.103 of HIPAA defines “Individually identifiable health information” as health information “(i) That identifies the individual; or (ii) With respect to which there is a reasonable basis to believe the information can be used to identify the individual.” Individually identifiable health information includes common identifiers such as name, address, birth date, Social Security number.

Here, Plaintiff only seeks de-identified health information. (See 45 C.F.R. § 164.514(a) [“Health information that does not identify an individual and with respect to which there is no reasonable basis to believe that the information can be used to identify an individual is not individually identifiable health information.”].)

Fourth, the Court finds no violation of Civil Code section 56.10 or CCP section 1798.24.

As for section 56.10, Civil Code section 56.10(a) does not apply to the CCLD. It only applies, by its terms, to a “provider of health care, health care service plan, or contractor.” The CCLD is neither a “provider of health care, “as defined in Civil Code §56.05(j), nor a “health care service plan,” as defined in Civil Code §56.05(d), nor a “contractor,” as defined in Civil Code §56.05(c). Thus, the Court agrees with Plaintiff that the statute is inapplicable here. Moreover, like with HIPPA, there is no indication that de-identified health information falls within the scope of “individually identifiable information.”

As for CCP section 1798.4, this provision requires prior written voluntary consent of the individual who records are being sought. However, first, Plaintiff “has no way of knowing the identity of residents contained in the reports prior to production and indeed will never know the names of residents because CCLD will redact those names from the reports as required by the express language of the subpoena.” (Opp., 8:18-23.) Moreover, RCFEs are not identified as a type of custodian of “personal records” subject to the mandatory notice of consumer requirement pursuant to CCP section 1985.3.

Based on the foregoing, Defendant’s motions to quash are denied. The scope of the subpoenas is narrowed to: July 1, 2021 to March 1, 2022. 

It is so ordered.

Dated:  September    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.