Judge Michael E. Whitaker, Case 21STCV31507 2023-01-26 Tentative Ruling

Judge: Michael E. Whitaker, Case: 21STCV31507, Date: 2023-01-26 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 Anahit Petrosyan sued Defendants Costco Wholesale Corporation, Costco Wholesale Membership, Inc., and Kevin Matsuki (collectively, Defendants) based on injuries Plaintiff alleges she sustained as a result of a slip and fall incident which occurred in a Costco store on August 19, 2019. (See Complaint.)

Plaintiff moves to quash the subpoenas issued by Defendant to the following entities: (1) Advanced Center for Neurology & Headache, (2) Advanced Center for Neurology & Headache – Billing, (3) Advanced Center for Neurology & Headache – Radiology, (4) Allied Health Pharmacy, (5) Nick Ghazaryan MD, Precision Spine & Orthopedics, Inc., (7) Nick Ghazaryan MD, Precision Spine & Orthopedics, Inc- Billing, (8) Mid Valley Health Center, (9) Mid Valley Health Center-Billing, (10) Glendale Diagnostic Imaging Network, (11) Glendale Diagnostic Imaging Network-Billing, (12) Glendale Diagnostic Imaging Network-Radiology, (13) Shin Imaging Center, (14) KFH/SCPMG/Mental Health, (15) Kaiser Permanente Central Business Office, and (16) Kaiser Foundation Hospital-Radiology.

Defendant Costco Wholesale Corporation (Costco) opposes the motion. Plaintiff replies.

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, 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.

Any and all medical records, psychiatric records, mental health records, counseling records, files, reports, correspondence, insurance records, billing and payment records (proof of amounts paid) whatsoever including billing ledgers, 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, any and all radiological reports and radiological films including but not limited to any x-rays, MRI's, CT scans, bone scans, nerve conduction studies EMGS, CT myelograms, diskograms, etc.; pathology reports, laboratory reports, all test and test results, medication records, therapy records, workers' compensation records, sign-in sheets, color photographs, patient information sheets, handwritten notes, transcriptions, prescriptions, telephone messages, electronic media and any documents in the file from other health care providers from pertaining to Anahit Petrosyan; DOB: 05/18/1951; SSN: XXXXX-XXXX. (E.g., Advanced Center for Neurology & Headache)

Any and all medical records, psychiatric records, mental health records, pharmacy records, counseling records, files, reports, correspondence, insurance records, billing and payment records (proof of amounts paid) whatsoever including billing ledgers, 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, any and all radiological reports and radiological films including but not limited to any x-rays, MRI's, CT scans, bone scans, nerve conduction studies EMGS, CT myelograms, diskograms, etc.; pathology reports, laboratory reports, all test and test results, medication records, therapy records, workers' compensation records, sign-in sheets, color photographs, patient information sheets, handwritten notes, transcriptions, prescriptions, telephone messages, electronic media and any documents in the file from other health care providers from pertaining to Anahit Petrosyan; DOB: 05/18/1951; SSN: XXX-XX-XXXX. (E.g., Allied Health Pharmacy)

Any and all insurance records, billing and payment records (proof of amounts paid) whatsoever including billing ledgers, relating to any care, treatment, diagnosis, prognosis, consultation and/or findings, and any documents in the file from other health care providers from pertaining to Anahit Petrosyan; DOB: 05/18/1951; SSN: XXX-XX-XXXX; MRN: 00020739571. (E.g., Kaiser Permanente Central Business Office)

Any and all radiological reports and radiological films including but not limited to any x-rays, MRI's, CT scans, bone scans, nerve conduction studies EMGS, CT myelograms, diskograms, etc., electronic media and any documents in the file from other health care providers from pertaining to Anahit Petrosyan; DOB: 05/18/1951; SSN: XXX-XX-XXXX; MRN: 000020739571, for all dates of service from 01/01/1999 to present date. (E.g., Kaiser Foundation Hospital-Radiology)

Plaintiff argues the medical records and medical billing records sought are protected by her right to privacy. Plaintiff further attests that she has not brought to issue in this case her entire prior medical history, thus there is no reason legal justification for compelling production of Plaintiff’s health care records without limitation in scope. In the alternative to quashing the subject subpoenas, Plaintiff requests that the Court limit the subpoenas to the body parts Plaintiff alleges were injured because of the subject incident, and impose a limitation in time to no more than 5 years prior to the subject incident.

In opposition, Defendants argue the subject deposition subpoena is justified because Plaintiff has complained of extensive injuries which are inextricably linked to the rest of her body. In response to Form Interrogatory No. 6.2, Plaintiff responds in pertinent part:

Concussion; post concussive syndrome; traumatic brain injury; headaches; dizziness; cognition and memory difficulties; nausea; cervicalgia. Cervical spine sprain; cervical disc displacement; cervical stenosis; radiculopathy; enthesopathy; myalgia; hypolordosis, and

spondylosis. Thoracic spine sprain, and subluxation complicated by spondylosis. Lumbosacral spine sprain, lumbago, and subluxation complicated by L5 anterolisthesis and spondylosis. Right shoulder sprain, right wrist sprain, right knee sprain, right ankle sprain, chest and rib pain. Psychological, mental and emotional injuries such as sleep disruption, anxiety, and depression.

(See Declaration of Gary Petrosyan, Exhibit A.) Defendant further argues that when Plaintiff complains of injury to a body part on one side of the body, that body part is inseparably linked to the other side, and thus Defendant needs access to “bilateral records” to better ascertain the timing, causation, and actual damage from Plaintiff’s alleged injuries.

In reply, Plaintiff notes that Defendant fails to provide any legal support for its contention that medical records unrelated to the injuries and body parts Plaintiff has directly placed at issue are available to Defendant based on the interconnectivity of the human body.

The Court does not agree with Plaintiff that the subpoenas are overbroad in terms of scope based upon Plaintiff’s extensive list of injuries she herself associates with the subject incident. The Court finds that the scope of the subpoenas are in line with the breadth of Plaintiff’s claimed injuries. For example, Defendant is within its right to discover if there are other causes of, or reasons for, Plaintiff’s nausea, enthesopathy, myalgia and spondylosis, apart from the subject incident. In short, the Court concludes that Plaintiff has partially waived her right to privacy regarding the scope of her health care records as such records are relevant to the case and thus discoverable. Notwithstanding, the Court determines that the subpoenas are overbroad as to time and will limit the time period to five years before subject incident.

Plaintiff requests 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).) The Court declines to award such sanctions. The Court concludes that the parties had a good faith dispute as to the proper scope of the subpoenas, and neither party has acted in bad faith.

Therefore, the Court grants in part Plaintiff’s motion to quash the subject subpoenas as currently drafted and orders the subpoenas limited to responsive health care records from August 30, 2014 to the present.

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	January 26, 2023
CASE NUMBER	21STCV31507
MOTION	Motion to Quash Subpoenas
MOVING PARTY	Plaintiff Anahit Petrosyan
OPPOSING PARTY	Defendant Costco Wholesale Corporation