Judge: Mark V. Mooney, Case: 22STCV01922, Date: 2022-10-21 Tentative Ruling

Case Number: 22STCV01922    Hearing Date: October 21, 2022    Dept: 68

NICOLE DESEREE LEWIS, et al. v. JAN CENKNER, et al.

Case No.:  22STCV01922

TENTATIVE RULING:

Motion to Compel Plaintiff Nicole Lewis to Sign Medical Authorizations and for Sanctions.

Defendants have filed their Motion to Compel Plaintiff to Sign Medical Authorizations and for Sanctions.  They are seeking to obtain medical records of Plaintiff in the possession of third-party Palmdale Mental Health Center.  The only justification given by Plaintiff’s counsel to Defendant’s counsel for not allowing the production of the medical records is that “Plaintiffs will not sign.”  (Motion Exhibit B.)

The Habitability Lawsuit

This suit is brought by Plaintiff Lewis for breach of warranty of habitability, negligence, nuisance and breach of the covenant of quiet enjoyment.  Among other things, Plaintiffs allege that they were exposed to toxic mold which caused them serious medical and health problems.  (Complaint ¶ 13.). They allege that:

“Plaintiffs have suffered, and will continue to suffer, including but not limited to: pain and suffering; injury to Plaintiffs’ physical health and activity; shock to Plaintiffs’ nervous system; emotional distress; depression; anguish, fright; horror; nervousness; grief; anxiety; worry; shock; humiliation; shame; mortification; indignity; embarrassment; apprehension; mental suffering; medical expenses; and inconvenience.”  (Complaint ¶ 14.)

Plaintiff Lewis has provided interrogatory responses claiming she suffered mental or emotional problems from the incident.  (Int. 6.1.). Specifically, she claims:

“Lack of sleeping, exhaustion, brain fog, lack of concentration, panic attacks, allergies, headaches, congested, exhausted, hard time breathing and emotional distress including but not limited to stress, frustrated, mad, depression, humiliation, embarrassed, and sadness.”  (Int. 6.2.)

Her emotional distress is “all day every day.”  (Int. 6.3.)  And she was treated at Palmdale Mental Health Center for these health issues.  (Int. 6.4.)

(In the future, when referencing only a few specific answers to interrogatories, it is preferable to attach the interrogatory face page, relevant pages only, and omit the balance of the 48-page discovery response.)

On June 3, 2022, Defendants issued a subpoena pursuant to C.C.P. § 1985.3 to Palmdale Mental Health Center.  Palmdale Mental Health Center refused to honor it without a signed medical authorization under HIPAA.  Defense counsel requested that Plaintiff provide a written authorization.  (See C.C.P. § 1985.3(c)(2) “(2) Furnish the witness a written authorization to release the records signed by the consumer or by his or her attorney of record.”)  Plaintiff refused to provide a written authorization, providing no reason other than “Plaintiffs will not sign.”

Code of Civil Procedure § 1985.3

This subpoena is governed by C.C.P. § 1985.3 as it sought physician or medical center records -  “personal records” under the statute.  There is no claim that the procedure employed by Defendants was not in compliance with C.C.P. § 1985.3.  When a C.C.P. § 1985.3 subpoena is issued, the statute sets forth the procedure that an objecting consumer must employ if she disputes that validity of the subpoena or otherwise challenges the right of the subpoenaing party to obtain the “personal records.”

“(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. * * *

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.

The party requesting a consumer's personal records may bring a motion under Section 1987.1 to enforce the subpoena within 20 days of service of the written objection. The motion shall be accompanied by a declaration showing a reasonable and good faith attempt at informal resolution of the dispute between the party requesting the personal records and the consumer or the consumer's attorney.”  Code Civ. Proc., § 1985.3. (Bold added.)

Plaintiff failed to bring a motion to quash the subpoena under C.C.P. § 1985.3(g).  She provided no explanation for the refusal to allow the records to be produced other than counsel’s statement that “Plaintiffs will not sign.”

The Claimed Right of Privacy – Waived by Placing the Medical Health at Issue

In response to the request by Defendants that Plaintiff execute a written authorization, no reason was provided for the refusal.  In opposition to this Motion Plaintiff now asserts that the medical records are subject to her right of privacy.  She notes that discovery of medical records “will not be allowed if the request is overbroad…”. (Opposition pg. 4:5-7.). So too, “speculation that records may contain relevant material is insufficient” to justify its production.  (Opposition pg. 4:14-15.)  But Plaintiff does not show that the discovery is overbroad or that “speculation” is involved.  On the contrary, Plaintiff’s own sworn answers to interrogatories show that the health care provider has relevant information.

“…they may not withhold information which relates to any physical or mental condition which they have put in issue by bringing this lawsuit, ...”  Britt v. Superior Court (1978) 20 Cal.3d 844, 864 [143 Cal.Rptr. 695, 708, 574 P.2d 766, 779]

Plaintiff may not both claim the medical injuries and prevent Defendant from obtaining the medical records related to those claimed injuries.

Plaintiff Objects to the Remedy Sought by this Motion – a Signed Medical Authorization

Plaintiff does not claim that service of the C.C.P. § 1985.3 subpoena on Palmdale Mental Health Center is defective in any respect.  Instead, Plaintiff disputes that the request for a signed authorization is a proper remedy for the failure of Palmdale Mental Health Center to honor the subpoena notwithstanding Plaintiff’s failure to have filed a proper motion to quash the subpoena.  Defendant cites Miranda v. 21st Century Ins. Co. (2004) 117 Cal.App.4th 913, 918 [12 Cal.Rptr.3d 159, 161–162] for their claim that moving to compel a signed medical authorization is a proper remedy.

“From a review of the medical records provided in discovery, defendant learned that plaintiff had also been treated at medical facilities known as Kaiser Pasadena and Kaiser Hollywood–Sunset.  Defendant followed up with a subpoena directed to those facilities requesting plaintiff's medical records.  Both Kaiser facilities responded that, because of the nature of the records, they would need signed authorizations from plaintiff before they could release the records.  Thus began a series of letters to plaintiff's counsel requesting plaintiff to sign the authorizations, culminating in a letter confirming a phone conversation in which plaintiff's counsel told defendant's counsel that plaintiff “will not be signing the medical release [s].””  Miranda v. 21st Century Ins. Co. (2004) 117 Cal.App.4th 913, 918 [12 Cal.Rptr.3d 159, 161–162]

“Unable to obtain plaintiff's authorization for release of her records, defendant filed an “application to commence discovery in underinsured motorist matter” in the superior court, together with a motion to compel compliance with the subpoenas for medical records.  The “compliance” defendant requested was an order compelling plaintiff to sign the authorizations for release of her medical records from Kaiser Pasadena and Kaiser Hollywood–Sunset.”  Miranda v. 21st Century Ins. Co. (2004) 117 Cal.App.4th 913, 918 [12 Cal.Rptr.3d 159, 162]

“The court granted the motion to compel by ordering plaintiff to sign the authorizations for release of her medical records.  Defendant's counsel sent to plaintiff's counsel a copy of the order together with blank authorizations for plaintiff's signature.  After several unanswered telephone calls, plaintiff's counsel finally announced that her client would not be signing the authorizations.  Defendant again made written demand for compliance with the order, and, when no response was received, filed a motion requesting the terminating sanction of dismissal.  This time, plaintiff filed written opposition, which had a title that explained her entire argument: “[C]laimant's special appearance for the purpose of opposing respondent's motion for dismissal and sanctions on the grounds that the court lacked personal jurisdiction over the claimant on August 12, 2002, therefore said order is void and that the court still lacks personal jurisdiction over the claimant to hear the instant motion.”  The court was not impressed with plaintiff's argument, granted the motion to dismiss, and granted monetary sanctions against plaintiff and her counsel.”  Miranda v. 21st Century Ins. Co. (2004) 117 Cal.App.4th 913, 919 [12 Cal.Rptr.3d 159, 162–163]

While Plaintiff is correct that the issue on appeal in Miranda was the jurisdiction of the trial court and the court of appeal did not directly rule on the underlying order to sign the authorization, it also did not suggest that the order was inappropriate.  Further, C.C.P. § 1985.3(c)(2) specifically notes that obtaining “a written authorization to release the records signed by the consumer or by his or her attorney of record” is an appropriate tool for obtaining the release of the records.  Thus, contrary to Plaintiff’s argument, obtaining a signed medical authorization is not an unauthorized method of discovery.  At most, it remains an open question whether the Court may use that tool to compel the production of the records, or should simply order the third party to produce the records since no motion to quash or other valid means of preventing the production was employed by Plaintiff.

Defendant is entitled to the medical records sought.  There are ways to obtain the medical records in a case such as this.  For instances, a motion to compel pursuant to C.C.P. § 1987.1 is authorized.  There is a way to prevent the production of the requested records – a motion to quash.  Instead, this motion was filed.  All parties with an interest in addressing the issue of the production of the medical records are before the court at this time in this motion.  While Palmdale Mental Health Center is caught in the middle, it lacks any interest in the dispute other than to see that it has proper authorization to release the records.

The statute mandated that “[t]he motion shall be accompanied by a declaration showing a reasonable and good faith attempt at informal resolution of the dispute between the party requesting the personal records and the consumer or the consumer's attorney.”  Defendants attempted to obtain a signed medical authorization.  No proper or meaningful objection was provided by Plaintiff.  No motion to quash was filed.  Plaintiff failed to meet and confer.

The Court orders the parties to meet and confer and agree upon an acceptable method for Defendant to be provided the subpoenaed documents, as the only dispute is whether the Plaintiff must sign a medical authorization.  The Court continues this hearing for one week to allow the parties to reach an appropriate written agreement as to the method they shall utilize to cause the records to be produced by Palmdale Mental Health Center in the near future.

The Court defers the question of sanctions to the continued hearing.