Judge: Michael E. Whitaker, Case: 22STCV05474, Date: 2023-05-25 Tentative Ruling

Case Number: 22STCV05474    Hearing Date: May 25, 2023    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

              Plaintiff Jesus Rodriguez Picazo (Plaintiff) filed a complaint against Defendants Muir-Chase Plumbing Co., Inc. and Adam Barry Shade (collectively, Defendants) for injuries resulting from a motor vehicle collision. 

            Plaintiff moves to quash the subpoena issued by Defendants to Mercury Insurance Group.

Defendants oppose the motion.

ANALYSIS

1.     DISCOVERY – GENERAL PRINCIPLES

            “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 be protected by a constitutional or statutory privilege[,] [including] the right to privacy . . . .”  (Board of Nursing, supra, 59 Cal.App.5th at p. 1039.) 

a.     RIGHT TO PRIVACY

            “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.^[1]  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.) 

                                                  i.          Health Care Records

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.

                                                ii.          Insurance Records

Under Insurance Code section 791.13, disclosure of “any personal or privileged information gathered or received in connection with an insurance transaction” is restricted.  (Ins. Code, § 791.13.)  Where insurance claims files become relevant in litigation involving other parties, disclosure may be conditioned on obtaining the written consent of the person to whom those files related.  (See Mead Reinsurance Co. v. Superior Court (1986) 188 Cal.App.3d 313, 321-322.)  Personal information means “any information that is maintained by an agency that identifies or describes an individual, including, but not limited to, his or her name, social security number, physical description, home address, home telephone number, education, financial matters, and medical or employment history.”  (Board of Registered Nursing v. Superior Court (2021) 59 Cal.App.5th 1011, 1036.)   

b.     ATTORNEY CLIENT PRIVILEGE

            Per Evidence Code section 954, “[t]he client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by:  (a) The holder of the privilege; (b) A person who is authorized to claim the privilege by the holder of the privilege; or (c) The person who was the lawyer at the time of the confidential communication, but such person may not claim the privilege if there is no holder of the privilege in existence or if he is otherwise instructed by a person authorized to permit disclosure.”  (Evid. Code, § 954.) 

c.      ATTORNEY WORK PRODUCT DOCTRINE

            The attorney work product doctrine is codified under Code of Civil Procedure section 2018.010, et seq. 

It is the policy of the state to do both of the following:

(a) Preserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases.

(b) Prevent attorneys from taking undue advantage of their adversary's industry and efforts.

(a) A writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.

(b) The work product of an attorney, other than a writing described in subdivision (a), is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice.

(See Code Civ. Proc., §§ 2018.020, 2018.030.)  “Absolute protection is afforded to writings that reflect ‘an attorney's impressions, conclusions, opinions, or legal research or theories.’ All other work product receives qualified protection; such material ‘is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice.’ ”  (Coito v. Superior Court (2012) 54 Cal.4th 480, 485, citations omitted.)

2.     MOTION TO QUASH - SUBPONENAS

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); 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”].)  Here, Plaintiff moves to quash the subject subpoena which seeks the following:

“Any and all insurance records, medical records, correspondence, payments, claims and any other documents contained within the insurance file, excluding any privileged documents, pertaining to the person named below from the first date to, and including, the present.”  (Subpoena to Mercury Insurance Group.)

(See Plaintiff’s Separate Statement; see also Declaration of Juliana Ter-Haroutunian, ¶ 4; Exhibit A.)

            First, Plaintiff argues that the subpoenas are not limited in time and scope, and therefore Plaintiff’s right to privacy is violated as to her healthcare and insurance records.  In addition, Plaintiff contends that the subpoenas are not restricted to body parts she claims were injured in the action, and thus the subpoenas seek records that will not lead to the discovery of admissible evidence.  Finally, Plaintiff argues the subject of the subpoenas are protected by the attorney-client privilege and attorney work product doctrine.  In the alternative, Plaintiff requests that the Court issue a Protective Order limiting the scope of the subpoenas.

            In opposition, Defendants argue the subject deposition subpoena is justified because plaintiff has complained of an extensive, interrelated collection of injuries.  In response to Form Interrogatory No. 6.2, Plaintiff responds as follows:

Due To Defendant’s Negligence, I Suffered Harms And Losses, Including But Not Limited To; Neck Pain, Stiffness, Aching And Burning Radiating To Bilateral Shoulders, Right Elbow And Right Arm; Cervical Spine Disk Protrusion, Disc Bulges, Disk Height Loss, And Disk Desiccation, Radiculopathy, Disc Displacement, Uncovertebral Arthrosis, Spondylosis; Cervical Spine Lists To The Right; Cervical Segmental Dysfunction; Loss Of Cervical Lordosis With Anterior Head Position; Shoulder Joint Effusion; Right Arm Weakness; Right Hand Weakness And Numbness; Right Forearm Pain, Tenderness; Right Elbow Joint Effusion, Osteoarthrosis, 6 Mm Intra-Articular Body Consistent With Calcific Tendinosis, Distal Triceps Tendinosis With Enthesophyte Along Dorsal Aspect Of The Olecranon; Right Trapezius Tenderness And Spasm; Thoracic Spine Disc Narrowing, Tenderness And Spasm, Segmental Dysfunction, Diffuse Idiopathic Skeletal With Disc Degeneration, Hyperostosis; Left Clavicle Palpable Nodule; Lumbar Spine Disc Bulge, Disc Height Loss, Disc Desiccation, Bilateral Facet Arthropathy With Fluid In The Bilateral Facet Joints, Neural Foraminal Narrowing, Antherolisthesis, Uncovering Disc, Endplate Sclerosis, Bone Osteophytes, Ligamentum Flavum Hypertrophy; Lumbar Muscle Spasm; Upper Back Pain; Lower Back Pain, Burning, Cramping, Aching And Burning Radiating To Bilateral Buttocks Down To Bilateral Knees; Lumbar Spondylolisthesis; Lumbar Spine Disc Herniation, Neural Foraminal Stenosis, Facet Cyst; Lumbar Sciatica; Bilateral Legs Weakness, And Numbness; Difficulty Carrying, Washing And Lifting Objects; Difficulty With Walking, And Balance; Anxiety; Nausea; Sleep Disturbances; Lightheadedness; Dizziness; Blurred Vision.

(See Declaration of Ryan Redfield, Exhibit A.)

            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. 

3.     MONETARY SANCTIONS

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.

CONCLUSION AND ORDER

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 and insurance records from March 30, 2016 to the present. 

Plaintiff shall give notice of the Court’s ruling and file a proof of service of such.