Judge: Nathan Vu, Case: 21-0129889, Date: 2022-08-29 Tentative Ruling

Motion to Compel

The Motion to Compel Production of Records from Third Party Nicole Zens, LMFT is GRANTED.

Ms. Zens is ORDERED to comply with the subpoena and produce the records relating to Plaintiff within 20 days of this ruling.  Ms. Zens shall redact as appropriate any portion of the records that include confidential communications between Ms. Herrera and Ms. Zens, including statements made by Ms. Herrera and statements made by Ms. Zens relating to Ms. Herrera’s mental health.

Defendant William Willard Lescher moves to compel third-party Nicole Zens, LMFT, to produce documents in response to a deposition subpoena issued by the Defendant.

If a third-party disobeys a deposition subpoena, the subpoenaing party may seek a court order compelling the third-party to comply with the subpoena.  (See, e.g., Code Civ. Proc. § 1987.1.) 

Defendant has established that Ms. Zens was personally served with the deposition subpoena on 6/28/2022.  (ROA 35.)  Ms. Zens objected to the subpoena on the basis of the psychotherapist-patient privilege and the right of privacy under the California Constitution. 

The psychotherapist-patient privilege is contained in Evidence Code section 1014.  That provision “provides that a patient has a privilege to refuse to disclose, and to prevent another from disclosing, confidential [] communication between the patient and his or her psychotherapist.”  (N.S. v. Superior Court (2016) 7 Cal.App.5th 713, 718–19.)

“However, this privilege is not absolute: ‘“There is no privilege under this article as to a communication relevant to an issue concerning the mental or emotional condition of the patient if such issue has been tendered by,’ inter alia, the patient.”  (Id. at p. 719; see also Evidence Code, § 1016, subd. (a); Roberts v. Superior Court (1973) 9 Cal.3d 330, 340.)  .)  “[A] party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.”  (Vinson v. Superior Court (1987) 43 Cal.3d 833, 839.)

Generally, there is also a constitutional right to privacy as to medical conditions a party has not placed at issue in litigation. (See John B. v. Superior Court (2006) 38 Cal.4th 1177, 1198 [constitutional right of privacy applies to a party’s medical records]; Williams v. Superior Ct. (2017) 3 Cal.5th 531, 552.)

In this case, Plaintiff seeks damages for various conditions including tinnitus, insomnia, inability to focus, mood swings, and irritability.  (Chou Decl. Exh. A at pp. 12-14.)  Plaintiff also testified at his deposition that the car accident at issue in this lawsuit has impacted him “both cognitive [sic], personally, socially . . . wanting to be more reclusive, you know, withdrawn. . . . you know, go upstairs, and you know, just want to be left alone, not have anything to do with my girlfriend . . . .”  (Id., Exh. B at p. 68.)  Thus, Plaintiff has waived the privilege pursuant to Evidence Code section 1016 and right to privacy because plaintiff has tendered his mental condition in this litigation. 

However, according to the Opposition and Reply, Plaintiff’s ex-girlfriend (Ms. Herrera) also sought therapy from Ms. Zens along with Plaintiff.  Where two or more persons are joint holders of the psychotherapist-patient privilege, a waiver by one does not affect the other's right to claim the privilege. (Evidence Code, § 912, subd. (b).) 

Defendant concedes that any statements or diagnoses of Ms. Herrera can and should be redacted to prevent disclosure of privileged communications relating to Ms. Herrera.  Doing so will adequately protect the privilege and right to privacy as to Ms. Herrera.

Defendant shall give notice of this ruling.