Judge: Michael E. Whitaker, Case: 20STCV33978, Date: 2022-08-03 Tentative Ruling

Case Number: 20STCV33978    Hearing Date: August 3, 2022    Dept: 32

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. 

TENTATIVE RULING

MOTION

              Plaintiffs Vanessa Vega and Yanely Vega (collectively, “Plaintiffs”) sued Defendants Los Angeles County Metropolitan Transportation Authority and Larry Barber (collectively, “Defendants”) based on a motor vehicle collision.  Plaintiffs move to quash two subpoenas for Plaintiffs’ respective medical and billing records that Defendants served on Advanced Center for Neurology & Headache (“Deponent”).  Deponent is a health care provider that provided Plaintiffs treatment and care in connection with their claimed injuries in this case.  Defendants oppose the motion. 

            Defendants object to motion for Plaintiffs’ failure to include a table of contents and a table of authorities per California Rules of Court rule 3.1113.  (See Cal. Rules of Court, rule 3.1113, subdivision (f ) [“A memorandum that exceeds 10 pages must include a table of contents and a table of authorities.”)  Defendants therefore requests the Court to exercise its discretion not to consider the motion per California Rules of Court rule 3.1113, subdivision (g).  That subdivision provides, “[a] memorandum that exceeds the page limits of these rules must be filed and considered in the same manner as a late-filed paper.”  (Cal. Rules of Court, rule 3.1113, subdivision (g); see Cal. Rules of Court, rule 3.1113, subdivision (d) [“Except in a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 15 pages”].) 

Defendants’ objection is nonsensical and entirely without merit.  First, Defendants do not object to the motion for exceeding the page limit for opening memoranda provided in California Rules of Court, rule 3.1113, subdivision (d); but rather, the format requirements under rule 3.1113, subdivision (f).  Rule 3.1113, subdivision (g) does not apply to nonconformance with any such format requirements. 

Second, per Rule 3.1113, subdivision (d), “[t]he page limit does not include the caption page, the notice of motion and motion, exhibits, declarations, attachments, the table of contents, the table of authorities, or the proof of service.”  (Cal. Rules of Court, rule 3.1113, subdivision (d).)  Taking these exclusions into consideration, Plaintiffs’ opening memorandum totals 13 pages.  Defendants therefore have no reasonable basis for the objection.

ANALYSIS

1. MOTION TO QUASH

    

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).)

Current discovery standards hold that, “any party may obtain discovery regarding any matter, not privileged,[1] 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 be 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 [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, supra, 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.

1. Procedural Deficiency

    

Plaintiffs argue that Defendants’ service of both the notices to consumer and the respective subpoenas was defective because (1) Defendants failed to adhere to an eservice agreement between the parties and (2) Defendants have failed to establish proper service of the subpoenas on Deponent.

            To begin, the Court once again finds Plaintiffs’ argument that the service of both the notices to consumer on Plaintiffs and the subpoenas on Deponent were defective due to an eservice agreement per Emergency Rule 12 to be infirm for three reasons.  First, Emergency Rule 12 was repealed effective November 13, 2020.  Second, Exhibits 3 and 4 attached to the Declaration of Jonathan Bakhsheshian do not evidence an agreement by the parties to serve all documents by electronic means (e.g., email) to the exclusion of other methods of service, e.g., regular mail, overnight mail and personal delivery.  In fact, Exhibit 3 references Emergency Rule 12 which is not in effect, and Exhibit 4 does not show Defendants agreeing to serve all documents exclusively by electronic means.  Third, as noted by Defendants, California Rules of Court, rule 2.251(a) provides in pertinent part:  “When a document may be served by mail, express mail, overnight delivery, or fax transmission, the document may be served electronically under Code of Civil Procedure section 1010.6, Penal Code section 690.5, and the rules in this chapter.”  Consequently, the Court finds Defendants properly served the notices to consumer on Plaintiffs by mail on June 2, 2022.  (See Declaration of Jonathan Bakhsheshian, Exhibit 10; Declaration of Yimeng Liu, Exhibit A.)

            Next, Plaintiffs contend that Defendants have failed to establish compliance with the procedural requirements for the subpoenas served on Deponent – namely, that Defendants effected personal service of the subpoenas on Deponent per Code of Civil Procedure section 2020.200.  Under that section, a deposition subpoena may be served on an organization by personal delivery “to any office, director, custodian of records, or to any agent or employee authorized by the organization to accept service of a subpoena.”  (Code Civ. Proc., § 2020.220, subd. (b)(2).) 

Neither Plaintiffs nor Defendants have furnished proofs of service of the subject subpoenas which indicate the date, time, or manner of purported service, or are signed and dated by the person claiming to have effected service. (See Declaration of Jonathan Bakhsheshian, Exhibit 10; Declaration of Yimeng Liu, Exhibit A.)  The Court is therefore unable to verify whether Defendants personally served the subpoenas on an officer, director, or the custodian of records for Deponent, as required. (See Code Civ. Proc., § 2020.220, subd. (b).) Consequently, the Court finds the subpoenas to be procedurally defective.  

1. Substantive Deficiency

    

            As to the merits, Plaintiffs contend that the subject subpoenas impermissibly seek records protected by Plaintiffs’ right to privacy, and are overbroad and not reasonably calculated to lead to the discovery of admissible evidence.  The subject subpoenas seek “Any and all medical records, hospital records and medical reports” pertaining to Plaintiffs, respectively, along with all documents and records concerning or related thereto.  (See Declaration of Jonathan Bakhsheshian, Exhibit 10; Declaration of Yimeng Liu, Exhibit A.)  The subpoenas contain no limitation by body part or time.

In opposition, Defendants contend that no limit by body part or to temporal scope is required as there no dispute that Plaintiffs treated with Deponent exclusively for their claimed injuries in connection with this litigation. 

In reply, Plaintiffs counter that, as part of their patient files, Deponent has, ostensibly, obtained medical records from Plaintiffs’ entire medical history.  Plaintiffs thus suggest that the subpoenas must be limited in breadth and scope to Plaintiffs’ body parts at issue in this case within a reasonable amount of time relative to the underlying collision.  Plaintiffs do not advance any evidence in support of their claim to establish that the requested records do in fact contain records unrelated to Deponent’s treatment and care of Plaintiffs with respect to this litigation.  Nevertheless, should the requested records, for whatever reason, happen to contain any such unrelated records, their disclosure would indeed violate Plaintiffs’ right to privacy.  It would appear that Defendants also tacitly concede that the subject subpoenas are flawed because they are not limited to Plaintiffs’ body parts alleged to be injured or to any timeframe related to the underlying motor vehicle collision.

            In short, without reasonable limitations on the breadth and scope of the subject subpoenas, the Court finds that Plaintiffs’ arguments are meritorious. 

1. REASONABLE EXPENSES

    

Both parties request monetary sanctions in connection with the motion.  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).) 

Here, the Court finds the parties have acted unreasonably and without substantial justification in both bringing and opposing the motion.  First, as Defendants argue, it would appear that Plaintiffs failed to make a reasonable and good faith attempt at informal resolution of the dispute prior to bringing the motion, as required.  (See Code Civ. Proc., § 1985.3, subd. (g).)   The email from Plaintiffs’ counsel filed in support of the motion as Exhibit 11 to the Declaration of Jonathan Bakhsheshian falls far short of a reasonable and good faith attempt at informal resolution.  In the email, Plaintiffs’ counsel merely asserts that the subpoenas are procedurally and substantively deficient, requests the documents not to be produced, and threatens the filing of a motion to quash unless Defendants serve amended subpoenas within three days of the email.  (See Declaration of Jonathan Bakhsheshian, Exhibit 11.)  Second, the parties apparently came to an agreement on July 14, 2022, for the service of amended subpoenas limited to Plaintiffs’ body parts alleged to be injured and within a timeframe related to the underlying motor vehicle collision.  (See Declaration of Ashkan Ashour, Exhibit E.)  Neither Plaintiffs nor Defendants provide an explanation as to why the amended subpoenas were not served on Deponent, thereby obviating the need for this motion and preventing the unnecessary expenditure of time and resources by the parties, counsel, and the Court.  The Court therefore denies the requests for sanctions.

CONCLUSION AND ORDER

Therefore, the Court grants Plaintiffs’ motion to quash the subject subpoenas and orders said subpoenas quashed.  The Court further orders Defendants, counsel for Defendants, the Deposition Officer (Better Instant Copy) and any third party affiliated with Defendants or counsel for Defendants to discard all documents, records, materials or items (originals and copies) received or produced in response to the subject subpoenas forthwith, regardless of how such documents, records, materials or items are stored, electronically or otherwise. 

Plaintiffs shall provide notice of the Court’s orders and file a proof of service regarding the same.