Judge: Michelle Williams Court, Case: 21STCV35596, Date: 2022-10-31 Tentative Ruling
Case Number: 21STCV35596 Hearing Date: October 31, 2022 Dept: 74
21STCV35596 ERNEST
JOSEPH FRANCESCHI, JR. vs CHRISTOPHER BALDWIN
Plaintiff’s Motion to Compel Further Reponses to
Specially Prepared Interrogatories Third Set Propounded to Defendant
Christopher Baldwin
TENTATIVE RULING:
Plaintiff’s Motion to Compel Further Reponses to Specially Prepared
Interrogatories Third Set Propounded to Defendant Christopher Baldwin is
GRANTED in part. The motion is GRANTED as to Special Interrogatories Nos. 21-26
and DENIED as to Special Interrogatories Nos. 27-29. Defendant is ordered to provide supplemental
verified, code compliant responses to Special Interrogatories Nos. 21-26 within
20 days. Access to and dissemination of information contained in Defendant’s
responses shall be restricted by the protective order described herein. The
Hearing on Motion for Protective Order set for 11/02/2022 at 8:30 AM in
Department 74 of the Stanley Mosk Courthouse is advanced and continued to
January 5, 2023 at 8: 30 a.m.
Background
On September 28, 2021, Plaintiff Ernest Franceschi,
Jr. filed this action against Defendants Christopher Baldwin and Gloria
Baldwin. The
operative First Amended Complaint, (“FAC”), added Defendant Ross Perkal and
asserts causes of action for: (1) breach of the implied covenant of good faith
and fair dealing; (2) tortious interference with contract; and (3) extortion.
The FAC alleges Plaintiff, an attorney, represented Defendant Christopher
Baldwin in two lawsuits pursuant to retainer agreements whereby the upfront
costs were paid by Ralph Baldwin, Christopher Baldwin’s father. Plaintiff
alleges Baldwin, at the encouragement of his mother Defendant Gloria Baldwin,
refused to attend mediation or settle the lawsuits and Plaintiff withdrew as
counsel. Plaintiff alleges Defendant Christopher Baldwin thereafter sent an
email stating Plaintiff failed to provide receipts for money collected and
demanded return of funds under threat of reporting Plaintiff to the IRS and the
State Bar.
On May 26, 2022, the Court issued an order
sustaining Defendant’s demurer to the first and second causes of action without
leave to amend and overruling the demurrer as to the third cause of action in
the FAC.
On August 15, 2022, Defendant Christopher Baldwin
filed a motion to quash, or in the alternative, motion for protective order,
seeking an order that his deposition be taken remotely, over multiple one-hour
deposition sessions “given Mr. Baldwin’s injuries, ongoing physical pain, his
significantly impaired cognitive functions, high risk of a panic attack or
severely incapacitating headache, and the risks associated with his
immunocompromised state during the ongoing COVID-19 pandemic.” (Aug. 15, 2022
Notice of Motion at 1:8-17.)
Motion
On October 6,
2022, Plaintiff Ernest Franceschi, Jr. filed the instant motion seeking to
compel further responses to Special Interrogatories, Set Three Nos. 21-29.
Opposition
In
opposition, Defendant contends Plaintiff failed to include authority in the
memorandum of points and authorities, the information sought is protected by
the right to privacy, and the information is protected by the
psychotherapist-patient privilege and physician-patient privileges.
Reply
In
reply, Plaintiff argues Defendant voluntarily placed his medical and mental
conditions at issue in connection with the motion to quash, or in the
alternative, for a protective order and therefore the discovery is proper.
Motion to Compel Further Responses
Standard
The
propounding party may bring a motion to compel further responses to
interrogatories if it believes the responses received are evasive or
incomplete, the attempt to produce writings pursuant to Code of Civil Procedure
section 2030.230 is unwarranted or inadequate, or if the objections raised are
meritless or too general. (Code Civ. Proc. § 2030.300(a).) The motion must be
accompanied by a good-faith meet and confer declaration, (Code Civ. Proc. §
2016.040), and be accompanied by a separate statement. (Cal. R. Ct., rule
3.1345.) The opposing party bears the burden of justifying any objections. (Fairmont
Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255; Kirkland v.
Superior Court (2002) 95 Cal.App.4th 92, 97-98.) Williams v. Superior
Court (2017) 3 Cal.5th 531, 541 (“the burden of justifying any objection
and failure to respond remains at all times with the party resisting an
interrogatory.”).)
Unless
extended, the motion must be filed within 45 days of service of the responses.
(Code Civ. Proc. §§ 2016.050; 2030.300(c); Sexton v. Superior Court
(1997) 58 Cal.App.4th 1403, 1410 (“the time within which to make a motion to
compel . . . is mandatory and jurisdictional.”).)
Background of Discovery and Meet and
Confer
The motion is timely filed as well as accompanied by
the required separate statement and meet and confer declaration.
On August 18, 2022, Plaintiff served Special
Interrogatories, Set Three upon Defendant Christopher Baldwin. (Franceshi Decl.
Ex. 1.) On September 19, 2022, Defendant served his objection only responses.
(Id. Ex. 2.) On September 23, 2022, Plaintiff sent a meet and confer letter
addressing the interrogatories at issue. (Id. Ex. 3.) Defendant’s counsel
reviewed the letter and indicated they did not believe they were obligated to
supplement or amend their responses. (Id. Ex. 4.)
Special Interrogatories (Set Three)
Plaintiff’s
Special Interrogatories, Set Three seek information regarding Defendant’s
claims of mental and physical limitations in support of his August 15, 2022
motion to quash, or alternatively, motion for protective order.
Special
Interrogatory No. 21 requests that Defendant “identify your psychiatric
diagnosis as determined by John M. Deirmenjian, M.D. which prevents you from
giving deposition testimony for more than one hour per day.”
Special
Interrogatory No. 22 requests that Defendant “identify all medications which
are currently prescribed for you by John M. Deirmenjian, M.D. for the
psychiatric condition that you have identified in response to Specially
Prepared Interrogatory No. 21.”
Special
Interrogatory No. 23 requests that Defendant “identify your medical diagnosis
as determined by David B. Bockoff, M.D. which prevents you from giving
deposition testimony for more than one hour per day.”
Special
Interrogatory No. 24 requests that Defendant “[i]dentify all medications which
are currently prescribed for you by David B. Bockoff, M.D. for the medical
condition that you have identified in response to Specially Prepared
Interrogatory No. 23.”
Special
Interrogatory No. 25 requests that Defendant “identify all
psychiatric/psychological testing performed on you by or at the direction of
John M. Deirmenjian, M.D. which supports your contention that you are unable to
give deposition testimony for more than one hour per day.”
Special
Interrogatory No. 26 requests that Defendant “identify all diagnostic studies
such as CT scans, X-Rays, Ultrasound, and the like which have been performed on
you by or at the direction of David B. Bockoff, M.D. which supports your claim
that you are unable to give deposition testimony for more than one hour per
day.”
Special
Interrogatory No. 27 requests that Defendant “identify which if any of the
following psychiatric/psychological tests have been administered to you by or
at the direction of John M. Deirmenjian, M.D.” and lists various tests.
Special
Interrogatory No. 28 asks Defendant “does the psychiatric condition attributed
to you by John M. Deirmenjian, M.D. prevent you from understanding questions
posed to you at a deposition?”
Special
Interrogatory No. 29 asks Defendant “does the psychiatric condition attributed
to you by John M. Deirmenjian, M.D. prevent you from giving truthful answers
under oath to questions posed to you at a deposition?”
Defendant
responded to each of these interrogatories solely with objections, based upon the
psychotherapist-patient privilege, physician-patient privilege, right to
privacy, relevance, burden, harassment, oppression, and expert opinion.
Defendant Must Provide Further
Responses to Special Interrogatories Nos. 21-26
In
opposition, Defendant contends Plaintiff failed to include any citations to
legal authority in the memorandum of points and authorities filed in support of
the motion. (Opp. at 9:1-25 citing Cal. R. Ct., rule 3.1113(b) (“The memorandum
must contain a statement of facts, a concise statement of the law, evidence and
arguments relied on, and a discussion of the statutes, cases, and textbooks
cited in support of the position advanced.”).) While Defendant is technically correct
and Plaintiff should comply with Rule 3.1113(b) in future submissions, Plaintiff’s
authority is included in the accompanying separate statement and Defendant is
not prejudiced. (Cal. R. Ct., rule 3.1345(c).) The Court shall consider the
motion on the merits.
Defendant
also contends that the special interrogatories information protected by the
right to privacy. (Opp. at 10:1-14:6.) “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. [Citation] 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,
supra, 3 Cal.5th at 552.)
“[P]atients
have a right to privacy with respect to information contained in the requested
medical records. Indeed, that right is well-settled.” (Grafilo v. Wolfsohn
(2019) 33 Cal.App.5th 1024, 1034. See also County of Los Angeles v. Superior
Court (2021) 65 Cal.App.5th 621, 641 (“it is clear that patients have a
bona fide interest in the confidentiality of their [medical] information.”).) There
is also a reasonable expectation of privacy in such information. (Grafilo,
supra, 33 Cal.App.5th at 1034 (“Medical patients’ privacy interest, our
Supreme Court has observed, derives from their expectation of privacy in their
physician's files, which ‘may include descriptions of symptoms, family history,
diagnoses, test results, and other intimate details concerning treatment.’”)
quoting Lewis v. Superior Court (2017) 3 Cal.5th 561, 575.) Disclosure
of medical information to an opposing litigant necessarily invades the privacy
interest in that information. However, this is not a case involving third-party
medical information and, as noted below, the Court shall enter a protective order
to further reduce the invasion of Defendant’s privacy rights. Defendant further
contends the information is protected by the psychotherapist-patient privilege
and physician-patient privilege. (Opp. at 14:7-16:3.)
“The
right to privacy, however, is not absolute.” (Grafilo, supra, 33
Cal.App.5th at 1034.) Additionally, a party may waive the
psychotherapist-patient privilege and physician-patient privilege to the extent
they have placed their medical or mental conditions at issue in the litigation.
(See Britt v. Superior Court (1978) 20 Cal.3d 844, 849 (“[A]lthough in
seeking recovery for physical and mental injuries plaintiffs have
unquestionably waived their physician-patient and psychotherapist-patient
privileges as to all information concerning the medical conditions which they
have put in issue, past cases make clear that such waiver extends only to
information relating to the medical conditions in question, and does not
automatically open all of a plaintiff's past medical history to scrutiny.”); Vinson v. Superior Court (1987) 43
Cal.3d 833, 839-840 (“[i]n the case at bar, plaintiff haled defendants into
court and accused them of causing her various mental and emotional ailments.
Defendants deny her charges. As a result, the existence and extent of her
mental injuries is indubitably in dispute.”).) As to the patient litigant
privilege, “[t]here is no privilege under this article as to a communication
relevant to an issue concerning the condition of the patient if such issue has
been tendered by: (a) The patient.” (Evid. Code § 996.) Here, Defendant has
haled Plaintiff into court on a motion for protective order based upon
Defendant’s mental and physical ability.
Defendant
cites Heda v. Superior Court (1990) 225 Cal.App.3d 525, which does not
support his arguments. The defendant in Heda did not place his physical
or mental condition at issue. Rather, the plaintiff unilaterally decided to
seek a trial preference based upon the defendant’s health. Defendant also
indicates the Court of Appeal in Pettus v. Cole (1996) 49 Cal. App. 4th
402, 463 held “employer-aligned physicians violated an employee’s
constitutional right to privacy when the physicians disclosed ‘at least some’
sensitive information to the employer, even though the employee previously
disclosed the same information to the employer.” (Opp. at 11:8-11. See also
Opp. at 15:3-5 (parenthetically describing Pettus as “holding the
physician-patient privilege was not waived when an employee disclosed ‘at least
some’ sensitive information to his employer.”).)
However,
the court made no such holding in Pettus. As stated in its summary, “[a]s
to his claim under article I, section 1 of the California Constitution, we
conclude that Pettus made a prima facie showing of invasion of privacy by the
psychiatrists but, based on evidence presented by Du Pont in its defense case,
there is a serious question whether Pettus waived this claim by voluntarily
disclosing to his supervisors at Du Pont much of the sensitive personal
information that was subsequently transmitted in the psychiatrists' reports.” (Pettus,
supra, 49 Cal.App.4th at 414. See also Id. at 448 (“this evidence
may be sufficient to find that, by his own conduct, Pettus waived any
constitutional privacy claim he might otherwise have had against Drs. Cole and
Unger.”).) The court found the physicians violated portions of the Confidentiality
of Medical Information Act, which is not at issue here. (Id. at 425 (“Pettus
first contends that, as a matter of law, Drs. Unger and Cole violated the CMIA
when they disclosed to his supervisors at Du Pont the detailed reports of his
psychiatric evaluations. For reasons we will elaborate, we agree.”).)
Pursuant
to Code of Civil Procedure section 2017.010, “[u]nless otherwise limited by
order of the court in accordance with this title, any party may obtain
discovery regarding any matter, not privileged, that is relevant . . . the
determination of any motion made in that action, if the matter either is itself
admissible in evidence or appears reasonably calculated to lead to the
discovery of admissible evidence.” Thus, discovery is appropriate to address
issues raised in “any motion,” not just the substantive claims raised in the
litigation. The Court is not persuaded by Defendant’s characterization of the
motion for protective order as “ancillary” and does not find relevant case
authority, such as Britt and Vinson, inapposite solely because it
dealt with the more common fact pattern of a plaintiff placing a medical or
mental condition at issue in the complaint.
In
support of his August 15, 2022 motion to quash, or in the alternative, for a
protective order, Defendant submitted the declarations of John M. Deirmengian,
M.D. and David B. Bockoff, M.D. as evidence of Defendant’s inability to attend
an in-person deposition or a deposition exceeding one hour due to Defendant’s
mental illness, (Aug. 15, 2022 Deirmengian Decl. ¶¶ 3-9), immunocompromised
status, and spinal injuries. (Aug. 15, 2022 Bockoff Decl. ¶¶ 3-11.)
Accordingly, Defendant has directly placed his mental and physical state at
issue, to the extent they relate to his ability to attend in person depositions
or depositions exceeding one hour in length. Plaintiff’s need for discovery
related to these issues, directly raised by Defendant, outweigh Defendant’s
privacy interests. (Los Angeles Gay & Lesbian Center v. Superior Court
(2011) 194 Cal.App.4th 288, 307 (“the court must balance the privacy interest
at stake against other competing interests, which include the interest of the
requesting party, fairness to litigants in conducing the litigation, and the
consequences of granting or restricting access to the information.”).)
Plaintiff, without the ability to assess Defendant’s physical and mental
conditions asserted, would be effectively prohibited from opposing Defendant’s
motion for a protective order based upon these conditions. (See Pioneer
Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 374
(finding balance of interests weighed in favor of disclosure, in part, where
one party “would possess a significant advantage if it could retain for its own
exclusive use and benefit the . . . information.”).)
The
Court finds Special Interrogatories Nos. 21-26 are narrowly tailored to the
issues raised by Defendant in its pending motion as they are specifically
limited to Defendant’s ability to sit for a deposition for more than one hour a
day.
However,
Special Interrogatory No. 27 is not appropriately limited and is therefore an
overbroad intrusion on Defendant’s medical information without justification.
Plaintiff is not entitled to the identification of any and all psychiatric/psychological
tests that have been administered by or at the direction of John M.
Deirmengian, M.D. as they have no direct bearing on Defendant’s claims in his
motion. Similarly, Special Interrogatories Nos. 28 and 29 are directed to
Defendant’s ability to understand questions and be truthful, which were not
placed at issue in Defendant’s motion for protective order. The Court finds
Defendant’s privacy rights, the psychotherapist-patient privilege, and the
physician-patient privilege weigh against compelling a response to Special Interrogatories
Nos. 27-29.
The
motion is GRANTED as to Special Interrogatories, Set Three Nos. 21-26 and
DENIED as to Special Interrogatories, Set Three Nos. 27-29.
The Court Enters a Protective Order
Regarding Dissemination of Information Within Defendant’s Responses
Defendant’s
privacy concerns may be further mitigated by entry of a protective order. (See
e.g. Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 38
(“if intrusion is limited and confidential information is carefully shielded from
disclosure except to those who have a legitimate need to know, privacy concerns
are assuaged.”); Elmore v. Superior Court In and For Fresno County
(1967) 255 Cal.App.2d 635, 639 (“Valley’s business interests can and should be
protected by an appropriate protective order carefully limiting the people who
are permitted to inspect the documents.”); Pioneer Electronics (USA), Inc.
v. Superior Court (2007) 40 Cal.4th 360, 371 (“Protective measures,
safeguards and other alternatives may minimize the privacy intrusion.”).)
Accordingly,
the Court shall enter a protective order limiting dissemination of the
information in Defendant’s responses consistent with the Los Angeles Superior
Court model protective order – confidential designation only. The Court therefore
orders that access to and/or disclosure of Defendant’s responses and
information contained therein shall be permitted only to the following persons:
a. the Court;
b. Attorneys of record in
this proceeding and their affiliated attorneys, paralegals, clerical and
secretarial staff employed by such attorneys who are actively involved in the
Proceedings and are not employees of any party;
c. court reporters in this proceeding
(whether at depositions, hearings, or any other proceeding);
d. any deposition, trial or
hearing witness in this proceeding who previously has had access to the information,
or who is currently or was previously an officer, director, partner, member,
employee or agent of an entity that has had access to the information;
e. any deposition or
non-trial hearing witness in this proceeding who previously did not have access
to the information; provided, however, that each such witness given access to the
information shall be advised that such information are being disclosed pursuant
to, and are subject to, the terms of this order and that they may not be disclosed
other than pursuant to its terms;
f. outside experts or
expert consultants consulted by the parties or their counsel in connection with
this proceeding, whether or not retained to testify at any oral hearing;
provided, however, that prior to the disclosure of the information to any such
expert or expert consultant, counsel for the party making the disclosure shall
deliver a copy of this order to such person, shall explain its terms to such
person, and shall secure the signature of such person on a statement that they
will abide by its terms;
g. any other person that Defendant
agrees to in writing.
Additionally,
such information shall be used by the persons receiving them only for the purposes
of preparing for, conducting, participating in the conduct of, and/or
prosecuting and/or defending the Proceeding, and not for any other purpose
whatsoever.
The November 2 Hearing is Continued to
Accommodate the Discovery Ordered Herein
Defendant’s
motion for protective order is set for hearing on November 2, 2022, which does
not provide sufficient time for Defendant to serve the supplemental discovery
ordered herein and for Plaintiff to file a revised opposition to the extent
required by the information disclosed by Defendant.
The
Hearing on Motion for Protective Order set for 11/02/2022 at 8:30 AM in
Department 74 of the Stanley Mosk Courthouse shall be advanced and continued.
Sanctions
Pursuant to Code of Civil Procedure section
2030.300(d), “[t]he court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or attorney who
unsuccessfully makes or opposes a motion to compel a further response to
interrogatories, unless it finds that the one subject to the sanction acted
with substantial justification or that other circumstances make the imposition
of the sanction unjust.”
The Court finds both parties acted with substantial
justification and declines to impose sanctions.