Judge Michael E. Whitaker, Case 20STCV33291 2023-04-24 Tentative Ruling

Judge: Michael E. Whitaker, Case: 20STCV33291, Date: 2023-04-24 Tentative Ruling

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged). Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

Plaintiff Parnell Smith sued Defendant Juan Morales Calel (Defendant) based on injuries Plaintiff alleges he sustained in a motor vehicle collision.

“The purpose of the discovery rules is to enhance the truth-seeking function of the litigation process and eliminate trial strategies that focus on gamesmanship and surprise. In other words, the discovery process is designed to make a trial less a game of blindman's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.” (Juarez v. Boy Scouts of Am., Inc. (2000) 81 Cal.App.4th 377, 389 [cleaned up].)

Current discovery standards hold that, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Board of Registered Nursing v. Superior Court (2021) 59 Cal.App.5th 1011, 1039 (hereafter Board of Nursing).) “To meet this [test], a party seeking to compel [the] production of records . . . must articulate specific facts justifying the discovery sought; it may not rely on mere generalities.” (Ibid.; see Johnson v. Superior Court (1968) 258 Cal.App.2d 829, 837 [finding that a subpoena was “insufficient” to compel production because it was “based wholly on the [party’s] alleged information and belief without any statement of supporting facts”].) However, “[e]ven if information is otherwise discoverable, it may b[1] e protected by a constitutional or statutory privilege[,] [including] the right to privacy . . . .” (Board of Nursing, supra, 59 Cal.App.5th at p. 1039.)

“The state Constitution expressly grants Californians a right to privacy. Protection of informational privacy is the provision's central concern. . . . The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious.^{^[2]} The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 552 (hereafter Williams) [cleaned up].)

“Legally recognized privacy interests [include] interests in precluding the dissemination or misuse of sensitive and confidential information (‘informational privacy’) . . . .” (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35.) “A particular class of information is [sensitive or confidential] when well-established social norms recognize the need to maximize individual control over its dissemination and use to prevent unjustified embarrassment or indignity.” (Ibid.)

It is “well-settled” that “patients have a right to privacy with respect to information contained in . . . [their] medical records.” (Grafilo v. Wolfsohn (2019) 33 Cal.App.5th 1024, 1034.) Indeed, a patient’s right to privacy “is protected by case law as well as state and federal statutes and regulations.” (County of Los Angeles v. Superior Court (2021) 65 Cal.App.5th 621, 641 (hereafter County of Los Angeles).) Additionally, “[t]he privacy interest in psychiatric records is particularly strong, and in some respects, entitled to more robust protection than other types of medical records.” (Grafilo v. Soorani (2019) 41 Cal.App.5th 497, 507.)

“As one court explained in discussing the examination of medical records vis-à-vis the right to privacy: the information that may be recorded in a doctor’s files is broad-ranging. The chronology of ailments and treatment is potentially sensitive. Patients may disclose highly personal details of lifestyle and information concerning sources of stress and anxiety. These are matters of great sensitivity going to the core of the concerns for the privacy of information about an individual.” (County of Los Angeles, 65 Cal.App.5th at pp. 641–642 [cleaned up].)

In Britt v. Superior Court (1978) 20 Cal.3d 844, 859, it was recognized that “the filing of a lawsuit may implicitly bring about a partial waiver of one’s constitutional right of . . . privacy.” However, the California Supreme Court held that “the scope of such ‘waiver’ must be narrowly rather than expansively construed.” (Ibid.) In other words, “while [a plaintiff] may not withhold information which relates to any physical or mental condition which they have put in issue by bringing this lawsuit, they are entitled to retain the confidentiality of all unrelated medical or psychotherapeutic treatment they may have undergone in the past.” (Ibid.) Therefore, it follows that a patient cannot reasonably expect certain matters to remain private if they are related to the specific issues that the patient has himself brought before a court. On the other hand, it is objectively reasonable to expect health care records that are unrelated to a current legal dispute to remain private.

If a subpoena requires the production of documents, the court may quash the subpoena entirely or modify it. (Code Civ. Proc., § 1987.1, subd. (a).) In ruling on a motion to quash, “the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney's fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” (Code Civ. Proc., § 1987.2, subd. (a); City of Los Angeles v. Superior Court (2003) 111 Cal.App.4th 883, 888 [“In general, the procedural remedy against a defective subpoena duces tecum that calls for privileged matter is a motion to quash, vacate, recall, or modify the subpoena”].)

Any and all records, files, reports and correspondence including but not limited to claim files, injuries, treatment, medical records, settlements, payments, all photographs (including Color Photos, if available) and any and all explanations of benefits paid to or on behalf of Parnell Smith; DOB: 8/18/1954; SS#: XXX-XX-5763. Records should also include, but not be limited to, any electronically stored data. (E.g., Blue Shield of California)

Any and all pharmacy records, files, reports, correspondence, billing, insurance and payment records, including but not limited to, medication and/or prescription records from any and all times to the present date, pertaining to: Parnell Smith ; DOB: 8/18/1954 ; SS#:XXX-XX-5763. Documents should also include, but not be limited to, any data stored electronically. (E.g., CVS Pharmacy)

Any and all medical records, files, reports, correspondence, itemized billing records and payment records (proof of amounts paid) and any and all radiological films and film breakdown, including but not limited to any x-rays, MRI's, CT Scans, Bone Scans, Nerve Conduction Studies EMGs, CT Myelograms, Diskograms, etc., whatsoever relating to any care, treatment, diagnosis, prognosis, consultation and/or findings. Documents should also include, but not be limited to, any and all emergency room records, nurses notes, SOAP notes, operative reports, radiology reports, pathology reports, all test and test results, medication records, physical and/or occupational therapy records, workers’ compensation records, sign-in sheets, color photographs, patient information sheets, handwritten notes, transcriptions, prescriptions, telephone messages, insurance records, electronic media and any documents in the file from other health care providers, from any and all times to the present date pertaining to Parnell Smith; DOB: 8/18/1954; SS#: XXX-XX-5763. (E.g., Elham Ghadishah, M.D.)

Plaintiff argues the health care records sought are protected by his right to privacy. Plaintiff further attests that he has not brought to issue in this case his entire prior medical history, thus there is no reasonable legal justification for compelling production of Plaintiff’s health care records without limitation in scope. Plaintiff states in his Separate Statement in Support of Motion to Quash Subpoenas that he has only alleged injuries to his neck, left shoulder, right shoulder and lower back resulting from the subject incident. (See Separate Statement, p. 4:18-19.) Further, Plaintiff advances the declaration of his counsel, Gerardo Moreno, Jr. (Counsel), who confirms that Plaintiff has specified that these are the only body parts at issue, in his responses to Defendant’s discovery requests. (See Declaration of Gerardo Moreno Jr., ¶ 3.) Because the subject subpoenas are not limited to the body parts Plaintiff has placed at issue, and instead seek the entirety of Plaintiff’s medical, billing, and radiological history from the subject providers, Plaintiff concludes that Defendant’s subpoenas are overbroad and violate his constitutional right to privacy.

The Court further notes that Defendant has failed to file an opposition and thus has not offered any evidence to show good cause for compelling “any and all of” Plaintiff’s medical and medical related billing records. Accordingly, the Court finds the language of the subpoenas overbroad. Thus, there is a high probability that the subpoenas as drafted could result in the disclosure of records that are unrelated to Plaintiff's injuries at issue and are thus private and not discoverable.

Based upon the subpoenas as currently crafted, Plaintiff has carried his threshold burden of establishing a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. Defendant has failed to identify a legitimate interest, in light of Plaintiff’s discovery responses, that outweighs Plaintiff’s right to privacy in his health care records.

Therefore, the Court grants Plaintiff’s motion to quash the subject subpoenas. Plaintiff shall give notice of the Court’s ruling and file a proof of service of such.

[1] “A patient has a statutory privilege to refuse to disclose, and to prevent another from disclosing, any confidential communication between the patient and a physician, or between the patient and a psychotherapist, absent waiver or some statutory exception to the privilege. These privileges apply to discovery as well as to trial, and they preclude disclosure to the court as well as to the parties.” (Simek v. Superior Court (1981) 117 Cal.App.3d 169, 173 [cleaned up].) Specifically, the Evidence Code holds that “[t]he patient, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and physician . . . .” (Evid. Code, § 994; see also Evid. Code, § 1014 [“the patient, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist”].) However, the Evidence Code provides that “there is no privilege under this article as to any communication relevant to an issue concerning the condition of the patient if such issue has been tendered by” the patient or a patient-related party. (See Evid. Code, § 996; see also Evid. Code, § 1016 [regarding a patient’s emotional or mental condition].)

[2] “This initial inquiry is necessary to permit courts to weed out claims that involve so insignificant or de minimis an intrusion on constitutionally protected privacy interests as not even to require an explanation or justification by the defendant.” (Lewis v. Superior Court (2017) 3 Cal.5th 561, 571 [cleaned up].)

DEPARTMENT	32
HEARING DATE	April 24, 2023
CASE NUMBER	20STCV33291
MOTION	Motion to Quash Subpoenas
MOVING PARTY	Plaintiff Parnell Smith
OPPOSING PARTY	None