Judge Michelle C. Kim, Case 23STCV00676 2023-03-23 Tentative Ruling

Petitioner Jonathan Pouldar (“Petitioner”) filed the instant Petition for the Purpose of Establishing Superior Court Jurisdiction over Uninsured Motorist Arbitration Discovery Disputes against Respondent State Farm Mutual Automobile Insurance Company (“Respondent”) in connection with underinsured and uninsured motorist claims. Petitioner alleges he was involved in a motor vehicle accident on May 18, 2020, where he sustained substantial bodily injury, and that on October 29, 2020, Petitioner was involved a second motor vehicle accident that aggravated his preexisting injuries. Petitioner provides that he settled the first accident for the third-party’s policy limits, but that the policy was not sufficient to satisfy the damages sustained by Petitioner. Petitioner states as a result of the injuries that were reaggravated by the second accident, Petitioner tendered both claims to Respondent under the underinsured and uninsured motorist policy maintained by Petitioner with Respondent.

At this time, Petitioner moves for a protective order regarding Respondent’s form interrogatories, set one, Nos. 8.4, 8.7 and 8.8, special interrogatories, set one, Nos. 1-4, 9, and 4-19, and request for production of documents (“RPDs”), set one, Nos. 19-22 served on Petitioner. Petitioner contends that the discovery requests violate his medical and financial privacy rights and cause undue expense, burden, embarrassment and annoyance. Petitioner provides that while he does not dispute that Respondent is entitled to the some of the requested information, a protected order should be issued because of the private nature of the information. Petitioner thus seeks an order stating that Petitioner is not required to respond to the subject discovery, and an order requiring Respondent to meet and confer with Petitioner about entering into a protective order, such as the Los Angeles Superior Court Model Protective Order, within 14 days. Respondent opposes the motion, and Petitioner filed a reply.[1]

Petitioner provides that the parties attempted to meet and confer to resolve these issues but were unable to reach an agreement. (Mot. Vafa Decl. ¶¶ 10-11.) This is sufficient to satisfy the meet and confer requirements prior to filing the motion. (CCP §§ 2030.090(a), 2031.060(a).)

Additionally, Petitioner’s request that judicial notice be taken of the Petitioner’s declaration filed in support of the petition to compel arbitration in related case 22STCV22002 is granted. (Evid. Code § 452(d).)

CCP § 2030.090(a) provides, “When interrogatories have been propounded, the responding party, and any other party or affected natural person or organization may promptly move for a protective order.” “The court, for good cause shown, may make any order that justice requires to protect any party or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Id. at § 2030.090(b).)

Similarly, pertaining to RPDs, “When an inspection, copying, testing, or sampling of documents, tangible things, places, or electronically stored information has been demanded, the party to whom the demand has been directed, and any other party or affected person, may promptly move for a protective order.” (Code Civ. Proc., § 2031.060(a).) “The Court, for good cause shown, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (CCP § 2031.060(b).) “As can be seen by the language of the above provision, the issuance and formulation of protective orders are to a large extent discretionary.” (Raymond Handling Concepts Corp. v. Superior Court (1995) 39 Cal.App.4th 584, 588.)

The protective order issued by the Court may include, but is not limited to, ordering that the discovery requests need not be answered, that the responses be made only on specified terms and conditions, and that some or all of the requests be sealed and thereafter opened only on order of the court. (CCP §§ 2030.090(b), 2031.060(b).)

“[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action,” (Code Civ. Proc., § 2017.010.) “For discovery purposes, information is relevant if it ‘might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement ...” (citation).” These rules are applied liberally in favor of discovery, (Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790), and contrary to popular belief fishing expeditions are permissible in some cases. (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 385.)

When compelled disclosure intrudes on constitutionally protected areas, it cannot be justified solely on the ground that it may lead to relevant information, rather, the compelled disclosure must be directly relevant. (Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 525.) Unlike privilege, privacy protection afforded is qualified, not absolute. In each case, the court must carefully balance the right of privacy against the need for discovery. The showing required to overcome the protection depends on the nature of the privacy right asserted; in some cases, a simple balancing test is sufficient, while in others, a compelling interest must be shown. (Hill v. National Collegiate Athletic Ass'n (1994) 7 Cal.4th 1, 34-35.)

“In Hill, [the California Supreme Court] established a framework for evaluating potential invasions of privacy.” (Williams v. Sup. Ct. (2017) 3 Cal.5th 531, 552, citing Hill v. Nat. Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35.) “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.” (Williams, supra, 3 Cal.5th at 552.) “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.” (Ibid.) “A court must then balance these competing considerations.” (Ibid.)

The California Supreme Court has rejected the “de facto starting assumption that such an egregious invasion is involved in every request for discovery of private information.” (Id. at 557.) It has directed courts to “instead place the burden on the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion, and against that showing must weigh the countervailing interests the opposing party identifies, as Hill requires.” (Ibid.) A compelling need for the discovery is not always required. (Ibid.) “What suffices to justify an invasion will…vary according to the context.” (Ibid.)

Respondent contends that the motion is untimely because Petitioner delayed in filing the motion after the subject discovery was propounded on Petitioner. However, Petitioner’s evidence shows that he attempted to meet and confer with Respondent prior to filing the motion. Therefore, Respondent fails to establish that Petitioner delayed in filing the motion after seeking to informally resolve the disputes herein. The Court considers the motion on the merits.

A right of privacy exists as to a party's confidential financial affairs. (Cobb v. Sup. Ct. (1979) 99 Cal.App.3d 543, 550; see also Fortimato v. Sup. Ct. (2003) 114 Cal.App.4th 475, 481.) However, the right to privacy is not absolute and can be waived where a plaintiff places his or her financial condition at issue. (See, e.g., Gaggero v. Yura (2003) 108 Cal.app.4th 884, 891.) “[W]here the financial information goes to the heart of the cause of action itself, a litigant should not be denied access so easily.” (GT, Inc. v. Superior Court (1984) 151 Cal.App.3d 748, 754.)

Here, form interrogatories 8.4, 8.7-8.8, special interrogatories 9, 16-17, and RPDs 19-22 seek financial information pertaining to Petitioner. These requests seek information about Petitioner’s monthly income, total income lost as a result of the accidents, Petitioner’s employers, trips taken by Petitioner, profit and loss statements, records used to calculate income and expenses, W-2 forms if Petitioner is employed by another, and records that substantiate any loss of earnings claims in connection with Petitioner’s claims. In opposition, Respondent avers that Petitioner is making a claim for past and future loss of earnings, which Petitioner does not dispute. Indeed, Petitioner himself states that Respondent is entitled to this financial information, but Petitioner contends that a protective order should be issued because of the private nature of the information sought. Although a right of privacy may exist as to a party’s financial affairs, Petitioner has placed his financial condition directly at issue. The above requested information is essential to the resolution of Petitioner’s claims for past and future loss of earnings, which concern Petitioner’s income.

To the extent that Petitioner contends that requiring Petitioner to provide this information would place an undue burden on Petitioner, the burden of showing that the discovery requests are unduly burdensome or oppressive is on the party making the objection. (Darbee v. Superior Court, San Mateo County (1962) 208 Cal.App.2d 680, 687.) However, Petitioner has submitted no evidence showing that any responsive burden on Petitioner would be undue or excessive. “An ‘objection based upon burden must be sustained by evidence showing the quantum of work required.’ [Citation.]” (Williams v. Superior Court (2017) 3 Cal.5th 531, 549.) Moreover, Petitioner fails to demonstrate that a sealing order is necessary to protect the relevant information.

Because the information requested by these interrogatories and RPDs is directly relevant to Petitioner’s claims, Petitioner does not establish good cause for an order providing that Petitioner is not required to answer these requests.

Petitioner’s motion for a protective order as to form interrogatories, set one, 8.4, 8.7-8.8, special interrogatories, set one, 9, 16-17, and RPDs, set one, 19-22 is denied.

By filing a personal injury action, plaintiffs place in issue their past and present physical and/or mental conditions related to the injury sued upon. All medical and/or psychological records relating to the claimed injuries are thus discoverable. Evidence Code §§ 996, 1016; Britt v. Superior Court (1978) 20 Cal.3d 844, 862–864. Normally, information about medical conditions entirely different from the injury sued upon is beyond the scope of discovery. However, medical records pertaining to an unrelated condition are discoverable on a showing of “good cause” if the condition is relevant to the issue of proximate causation. (Evidence Code §999; Slagle v. Superior Court (1989) 211 Cal.App.3d 1309, 1314–1315 [good cause shown by info that plaintiff was blind 6 months before accident].)

In this case, special interrogatories 1-4 and 18-19 seek information relating to Petitioner’s medical history. These interrogatories seek information relating to Petitioner’s healthcare providers that treated Petitioner for complaints to the same body parts he is claiming injuries to in this matter, the information for healthcare provider Petitioner considered to be his regular, primary, or general doctor since the underlying accidents, and the information of any pharmacies where Petitioner has filled any prescriptions for the five years before the May 2020 accident.

As Petitioner acknowledges, Respondent is entitled to information concerning Petitioner’s medical conditions at issue in this action. Special interrogatories 1-2 are explicitly seeking information of healthcare providers that Petitioner has treated with for complaints that involve the same body parts Petitioner is claiming were injured in the underlying accidents. Petitioner has put these body parts at issue in this action, and thus, Respondent is entitled to information concerning such. Special interrogatories 3-4 are seeking identifying information of any healthcare provider Petitioner considered to be his regular, primary, family or general doctor since the accidents. Petitioner does not articulate how responding to these requests would violate his right to privacy or reveal any confidential information. Likewise, as to special interrogatories 18-19, these interrogatories seek identifying information of any pharmacies where Petitioner had any prescriptions fille for the five years before the May 2020 accident. Notably, these interrogatories are not seeking any information about what prescriptions Petitioner actually had filled by the pharmacies. Petitioner, thus, fails to show that these interrogatories violate Petitioner’s right to privacy concerning his medical history.

Based on the foregoing, Petitioner’s motion is denied as to special interrogatories, set one, 1-4 and 18-19.

Because Petitioner’s motion is being denied, Petitioner’s request for sanctions is denied. The Court orders the parties to meet and confer regarding entering into a stipulated protective order. However, for the reasons stated above, the Court is not entering such a protective order at this time.

Hon. Michelle C. Kim

Judge of the Superior Court

[1] As Petitioner asserts in his reply, despite Respondent’s opposition being over nearly 300 pages, Respondent failed to electronically tab the attached exhibits as required by California Rules of Court, Rule 3.1110(f)(4). While the Court has discretion to disregard papers that fail to comply with all Rules of Court, the Court will consider the opposition. However, Respondent is put on notice that failure to comply with all applicable rules of Court in the future may result in papers being disregarded.