Judge: Mark H. Epstein, Case: 21STCV07661, Date: 2023-01-10 Tentative Ruling

Case Number: 21STCV07661    Hearing Date: January 10, 2023    Dept: R

This is a motion to compel the deposition of Physical Therapy Specialist’s (PTS) PMK. 

The underlying case is a malpractice one, with other torts, in which plaintiff asserts that the defendant performed unnecessary surgery (which went badly).  Plaintiff’s claim is that defendant performed the procedure not because it was medically appropriate, but rather so that he could charge the fee.  In addition, plaintiff claims that defendant performed the procedure so that he could refer plaintiff to PTS for physical therapy.  PTS is owned by defendant’s wife.  Plaintiff has moved to amend the complaint to assert punitive damages and defendant has opposed.  The court has continued the motion to allow plaintiff to try and obtain sufficient evidence to warrant the amendment.  One avenue plaintiff wants to pursue is PTS’s economic interest in plaintiff’s referral or the referrals of others by defendant.

Plaintiff initially subpoenaed PTS’s owner for deposition.  There was an objection, however, based on spousal privilege because PTS’s owner (as stated above) is defendant’s wife.  Plaintiff then shifted gears and noticed the deposition of PTS’s PMK.  Defendant and the witness objected on similar grounds, which led to the instant motion.

As defendant properly states, the spousal privilege comes in two flavors.  The first is a blanket prohibition on forcing one spouse to testify against the other over the witness’s objection.  It is important to note that this privilege lies only with the witness; the non-testifying spouse cannot assert this protection.  The second flavor is a more specific prohibition on questions that would require the disclosure of confidential marital communications.  Unlike the first type of privilege, this privilege is held by both spouses and can be asserted by either.  (Ev. Code secs. 970, 971, 980, 981.)  Both are in play here.

As to the first, the court agrees with plaintiff that the broad spousal immunity does not apply to a PMK or an entity (other than an entity who is a human).  By definition, a business entity enjoys no spousal privilege—a corporation or other fictional entity cannot be married.  While it is often true that the actual PMK will turn out to be a spouse (as is the case here), that is not of necessity the case.  Where an otherwise proper request is barred by this immunity, the entity is under a legal obligation to find another PMK and that designee is under an obligation to investigate as necessary to be able to testify as to the subjects set forth in the deposition notice.  PTS does not enjoy spousal immunity and cannot raise the broader prohibition.  PTS is free to name the spouse as the witness if she agrees to testify, but if not, PTS must find someone else who will then educate herself or himself on the topics at hand.

As to the second, the court agrees with defendant that the privilege does pertain.  But in an odd way.  If the PMK is not the spouse, then by definition the second prong of the privilege will not apply.  A non-spouse generally would not be privy to a confidential marital communication.  And that would apply equally to a PMK.  Thus, if the PMK is the office manager (by way of hypothetical), PTS’s spouse is under no obligation to disclose to the PMK confidential marital communications, and thus the PMK could not testify about them.  To the extent the PMK does testify, the testimony will, of course, bind PTS.  To the extent that the PMK asserts that the knowledge could not be obtained, plaintiff’s counsel is free to inquire as to what was done to try and obtain the information and what information was obtained.  Counsel can also inquire of the PMK as to what information was refused so long as the question does not require the substance of the privileged information.  (The court does not believe that there is any privilege—including attorney/client—that would bar such questions or protect the answer.)  If the PMK is the spouse, then the privilege can be asserted directly if appropriate by defense counsel.  The court notes that the privilege’s purpose is to protect marital harmony (which is why a divorced couple cannot claim this privilege).  (Cal. Law Revision Com. Com. 29B pt.3; Jurcoane v. Superior Court (2001) 93 Cal.App.4th 886.)  As such, not every statement between spouses is privileged; only confidential marital communications.  (People v. Gomez (1982) 134 Cal.App.3d 874.)  Communications that are shared with third parties, for example, will generally not be privileged.  Corporate records will not be privileged in most cases.  The court cannot say right now where the precise line will be drawn, but for purposes of this motion it seems that the deposition is proper and if there are specific issues about specific questions, the court will need to see them in context.

The court notes that plaintiff contends that the privilege does not apply at all because of the crime/fraud exception.  That exception to the privilege applies where the communication is in aid or furtherance of a crime or a fraud.  While the court agrees that plaintiff is asserting fraud, the mere assertion is not enough.  Plaintiff must present prima facie evidence of the crime or fraud.  The court does not see sufficient evidence on the record now before it to hold that the exception overcomes the privilege as a blanket proposition.

That leads to the objections to the document production.  The court has reviewed the seven categories and rules as follows.

Objection to Category 1—Overruled.  Objection to Category 2—Overruled .  The records seem to be business records and not confidential marital communications.  Objection to Category 3—Sustained.  The request involves many third parties and goes way beyond this case; those parties have privacy rights.  The court appreciates that plaintiff will allow HIPAA information to be redacted, but not only is that quite burdensome, PTS has the right to keep patient records of other patients confidential.  At least absent more of a showing, the court is not inclined to allow this production.  Objection to Category 4—Sustained in part and overruled in part.  To the extent this is sought on a patient by patient basis, it is overbroad for reasons similar to request 3.  However, to the extent it seeks an over-arching agreement, such as a general agreement that defendant will be paid a particular amount or percentage for every patient referred, that seems to be less intrusive in terms of third party rights and more directly relevant to this case.  Objection to Category 5—Sustained to the extent that the documents relate to patients other than plaintiff.  However, as to plaintiff, the objection is overruled.  The court also notes that communications about the transfer of money might be marital communications, but the books and records demonstrating the transfer of money would be corporate records and not subject to the marital privilege.  Objection to Category 6—Overruled.  Objection to Category 7—Sustained.  It is almost impossible to see how this request can be cabined to avoid disclosing private information concerning other patients.  However, it is overruled as it relates to plaintiff.

Notwithstanding the foregoing, if there are particular documents responsive to certain categories where the objection is overruled, a log can still be provided if counsel believes that the document would invade a privilege—either the marital communications privilege or third party patient privacy rights.

The requests for sanctions are DENIED.  Both positions had substantial justification sufficient to avoid sanctions.