I. BACKGROUND 

Plaintiff Martha Maldonado Luna (“Plaintiff”) filed this action against defendants Baraat Moller (“Moller”) and Curtis Dailey for damages arising from a motor vehicle accident.  

On January 25, 2024, Plaintiff filed the instant motion moving the Court for an order compelling Moller to provide further responses to Request for Identification and Production of Documents (“RPDs”), set three. More particularly, Plaintiff seeks an order compelling Moller to produce further responses to request no. 60, which seeks Moller’s medical records related to injuries suffered from the incident. Plaintiff contends Moller’s medical records are necessary to respond to Moller’s written discovery response, which provides as an affirmative defense that the “Subject accident did not create forces sufficient to cause plaintiff’s alleged injuries.” (Plf. Exh. 2; Form Rog no. 15.1.) 

In opposition, Moller contends he id not place his physical condition at issue, and that the patient-physician privilege precludes disclosure. Moller argues that his denial of Plaintiff’s allegations and/or asserting the accident did not cause sufficient force to injure Plaintiff is not equivalent to tendering his physical condition for discovery.  

In reply, Plaintiff argues that Moller placed his own injury at issue by claiming the force of the impact was insufficient to cause injury as an affirmative defense, and that Moller’s medical records are necessary to disprove Moller’s affirmative defense.  

II. PROCEDURAL REQUIREMENTS 

A motion¿to compel further responses to requests for production “shall be accompanied by a meet and confer declaration.”¿ (Code Civ. Proc. § 2031.310(b)(2).)¿ The declaration must state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented in the motion.¿ (Code Civ. Proc. § 2016.040.)¿  

The Court finds that Plaintiff met the requirements of Code Civ. Proc. § 2031.310(b)(2).  

Per the Eight Amended Standing Order for Procedures in the Personal Injury Hub Courts effective October 10, 2022 (Filed September 20, 2022), ¶ 9E, “PI Hub Courts will not hear Motions to Compel Further Discovery Responses to Discovery until the parties have engaged in an Informal Discovery Conference (IDC). PI Hub Courts may deny or continue a Motion to Compel Further Responses to Discovery if parties fail to schedule and complete an IDC before the scheduled hearing on a Motion to Compel Further Responses to Discovery.” Additionally, “Reserving or scheduling an IDC does not extend the time to file a Motion to Compel Further Discovery Responses.” (Ibid.) 

Here, the Court finds Plaintiff complied with the Standing Order in scheduling and attending an IDC, in which the issues were not resolved. (Min. Order, March 18, 2024.)  

A motion to compel further responses requires a separate statement.  (Cal. Rules of Court, rule 3.1345(a).) Plaintiff properly filed a separate statement for the motion to compel further. 

III. MOTION TO COMPEL FURTHER RESPONSES 

CCP § 2031.310(a) provides that on receipt of a response to a request for production of documents, the demanding party may move for an order compelling further responses if:  

(1) A statement of compliance with the demand is incomplete.¿ 

(2) A representation of inability to comply is inadequate, incomplete, or evasive.¿ 

(3) An objection in the response is without merit or too general.¿ 

Plaintiff’s request no. 60 seeks: “All medical records related to injuries suffered from this incident, as identified in Defendant's deposition.” 

Moller responded: “Objection: Calls for speculation, lacks foundation, seeks attorney work product and seeks premature disclosure of expert opinion. Invasion of privacy, overbroad, harassing, not reasonably calculated to lead to the discovery of admissible evidence.”  

It is undisputed by the parties that medical records fall within the scope of the right to privacy, but this privilege is not absolute. The patient-litigant exception “compels disclosure of only those matters which the patient himself has chosen to reveal by tendering them in litigation.” (In re Lifschutz (1970) 2 Cal. 3d 415, 427.) Thus, the issue is whether Moller has tendered his medical condition in litigation by way of his response to form interrogatory no. 15.1, which requested Moller to identify each denial of a material allegation or affirmative defense in the pleading, and for each, to: (a) state all facts on which you base the denial or special or affirmative defense; (b) state the names, addresses, and telephone numbers of all persons who have knowledge of those facts; and (c) identify all documents and other tangible things that support your denial or special or affirmative defense, and state the name, address, and telephone number of the person who has each document. Moller identified affirmative defenses Nos. 9, 10, and 14, and provides that: “(a) Responding Party disputes causation and treatment of all of plaintiff's injuries. Subject accident did not create forces sufficient to cause plaintiff's alleged injuries. (b) Parties to action, witnesses Medical Providers, Experts to be designated. (c) Medical records, discovery responses, deposition testimony, expert testimony.” (Plf. Exh. 2.) Further, Moller testified in his deposition that he experienced pain in his hip and neck, and had a check-up at the emergency room of Martin Luther King.  

In reliance on Manela v. Superior Ct., 177 Cal. App. 4th 1139, 1149, Moller contends that he does not tender his medical condition “by simply denying the plaintiff’s allegations regarding the same.” However, “A court must look to what issues have been raised by the litigant who seeks to assert the privilege, including potential defenses to the litigant's cause of action.” (Patterson v. Superior Court (1983) 147 Cal.App.3d 927, 930.) In other words, the Court must determine whether Moller first raised the issue of his own medical condition because of the manner in which he responded to Plaintiff’s discovery. In this case, the Court finds that Moller did raise the issue of his own condition as it relates to the impact. Rather simply denying that the accident caused Plaintiff’s injuries, Moller raised the specific issue of the force of the automobile collision’s impact. This particular wording had been previously discussed with defense counsel at IDC, yet defense counsel chose to keep the discovery response to form interrogatory 15.1 as is, and to proceed with the motion. 

Therefore, Plaintiff’s motion to compel further response to RPDs, set three, request no. 60 is GRANTED IN PART, in which the medical records sought is limited to Moller’s first visit to the emergency room at Martin Luther King only. Moller is ordered to serve further responses to request no. 60 within thirty (30) days.    

Moving party is ordered to give notice.   

PLEASE TAKE NOTICE: 

Dated this 5th day of April 2024