TENTATIVE RULING

Calendar:    2  

Date:          4/21/2023  

Case No: 20 STCV27305 Trial Date:  None Set 

Case Name: Alvillar v. BHC Alhambra Hospital, Inc.  

MOTION FOR PROTECTIVE ORDER

Moving Party:            Defendant BHC Alhambra Hospital Inc. 

Responding Party: Plaintiff Elijah A. Avillar, through his GAL    

RELIEF REQUESTED:

Order prohibiting plaintiff’s counsel or their agents from conducting a site inspection or from otherwise entering the premises of BHC Alhambra Hospital. 

SUMMARY OF FACTS:

Plaintiff Elijah A. Alvillar, an incompetent individual, through his guardian ad litem, alleges that on May 6, 2019, while plaintiff was under the care, custody and control of defendant BHC Alhambra Hospital, Inc., an acute-care psychiatric hospital, defendant breached the applicable standard of care for safe custody of plaintiff when defendant and its agents failed to adequately supervise and protect plaintiff from harm while he was a resident at the Hospital.  

Plaintiff alleges that he suffers from a psychiatric disability which required that he be supervised and protected from unsafe situations due to the potential for impulsive acts in which he might engage, but at the time of the subject accident, plaintiff was left unsupervised in the “smoking cage” portion of the residential care facility, which consists of a chain link fencing over the cage acting as a ceiling barrier which rises to over 8 feet in height.   Plaintiff alleges that due to defendant’s failure to properly supervise plaintiff, plaintiff climbed on the chain link cage to an unsafe height and fell, immediately shattering his right heel on impact, and causing plaintiff serious injuries and related damages. 

The file shows that on November 21, 2021, the court, the Honorable Michael E. Whitaker presiding, sustained a demurrer to the second cause of action of the First Amended Complaint for Dependent Adult Neglect without leave to amend, and also granted a motion to strike a prayer for enhanced remedies without leave to amend.  The FAC as remaining alleges a cause of action for negligence. 

ANALYSIS:

Defendant BHC Alhambra Hospital, Inc. (BHC Alhambra Hospital) seeks a protective order arguing that plaintiff’s request for a site inspection of defendant’s facility not be permitted based on concerns with respect to the patients which are being treated at the facility at the time of the proposed inspection. 

Under C.C.P § 2031.010(d): 

“A party may demand that any other party allow the party making the demand, or someone acting on the demanding party’s behalf, to enter on any land or other property that is in the possession, custody, or control of the party on whom the demand is made, and to inspect and to measure, survey, photograph, test, or sample the land or other property, or any designated object or operation on it.” 

Defendant seeks relief under CCP §2031.060, which provides, with respect to written demands for inspection of documents or things:

“(a) 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. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(b) 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. This protective order may include, but is not limited to, one or more of the following directions:

(1) That all or some of the items or categories of items in the demand need not be produced or made available at all.

(2) That the time specified in Section 2030.260 to respond to the set of demands, or to a particular item or category in the set, be extended.

(3) That the place of production be other than that specified in the demand.

(4) That the inspection, copying, testing, or sampling be made only on specified terms and conditions.

(5) That a trade secret or other confidential research, development, or commercial information not be disclosed, or be disclosed only to specified persons or only in a specified way.

(6) That the items produced be sealed and thereafter opened only on order of the court.”

(Emphasis added).

With respect to protective orders generally, the burden of showing good cause is ordinarily on the party seeking the protective order. Beverly Hills Nat. Bank & Trust Co. v. Superior Court (1961, 2nd Dist.) 195 Cal.App. 2d 861, 866-867.   The granting of a protective order is within the discretion of the trial court.  Id.  The granting or denial of a protective order is reviewed for abuse of discretion.   See Meritplan Insurance Co. v. Superior Court (1981) 124 Cal.App.3d 237, 242.  When the record shows facts on which the trial court exercised its discretion, this exercise will not be disturbed on appeal.  Foster v. Gillette Co. (1979) 100 Cal.App.3d 569, 578.

The outstanding discovery request is set forth in Plaintiff’s Amended Demand for Site Inspection, served on December 28, 2022, in which plaintiff, through his GAL:

“hereby demands, pursuant to California Code of Civil Procedure §2031.010 et seq., permission to enter into the SUBJECT PREMISES (As used herein, the term "SUBJECT PREMISES" shall refer to BHC ALHAMBRA HOSPITAL located at 4619 Rosemead Blvd., Rosemead, CA 91770) where the subject INCIDENT (As used herein, the term "INCIDENT" means the accident, injury or other occurrence giving rise to this action or proceeding) occurred, Plaintiff's room, the patio area, and the path from Plaintiff's room to the patio area. 

PLEASE TAKE FURTHER NOTICE that the purpose of this demand is to permit Plaintiff, her attorneys, consultants, experts, and/or anyone acting on their behalf, to conduct a nondestructive inspection of the above-referenced premises, including testing, inspecting, measuring, and/or photographing and videotaping the area where Plaintiff fell and the pathway to the patio area, as well as inspecting the camera and video surveillance system (including but not limiting to taking photographs of the security monitors).”

[Boris Decl., para. 11, Ex. 7].  

There was evidently no formal response or objection filed to this discovery request, but defendant BHC Alhambra Hospital filed this motion for a protective order.  

Defendant BHC Alhambra Hospital argues that under federal law, defendant is a covered entity, subject to 45 CFR section 164.502, pursuant to which, “A covered entity may not use or disclose protected health information…”  Defendant argues that health information, which is broadly defined under 45 CFR section 164.501, would include the name, image, or disclosure of a patient’s presence in a psychiatric facility.   

Defendant also argues that under California state law, Welfare and Institutions Code section 5328, “all information and records obtained in the course of providing” mental health services, to “either voluntary or involuntary recipients” of mental health services, “shall be confidential,” and that the information which would be disclosed by a site inspection does not fall within any of the enumerated exceptions.  

Defendant argues that unless plaintiff were to obtain the consent of every patient present on the psychiatric unit prior to inspection of the unit, then it is not possible to allow plaintiff’s counsel or their agents access to any portion of the hospital where patients are present.  Defendant argues that the third party patients at the hospital are not parties to this action, and have not authorized the disclosure of their protected health information which would include their identities and their presence in a psychiatric hospital.   Defendant indicates that even visitors who come to see individual patients in the hospital require written authorization from the patient to allow that individual on to the premises. 

Defendant relies on County of Riverside v. Superior Court (1974)  42 Cal.App.3d 478, in which the court of appeal found that the trial court had improperly issued an order that in connection with a chiropractor being examined by the State Board, a crisis and referral center release records related to the chiropractor’s voluntary drug and alcohol treatment program in relation to accusations seeking the suspension or revocation of the chiropractor’s license.  The court of appeal found that such records were confidential, and were not being sought in a judicial action or proceeding pending in which the use of such records was necessary to the administration of justice, but in a proceeding where the records were not to be disclosed to the courts, but to an administrative agency through the courts.   

Plaintiff in opposition argues that by the site inspection plaintiff, as in any premises or negligent supervision case, is merely attempting to perform a site inspection of defendant’s facility in around where the injury occurred.  Plaintiff indicates plaintiff has no issue with tailoring or narrowing the inspection and does not seek the disclosure of any protected health information of any third party. 

The demand does not seek the disclosure of confidential records, the case law cited does not deal with site inspections, and it would appear that the real concern would arise only if during the inspection plaintiff’s representatives were to encounter patients of the facility, who are entitled to have their identities as being patients in the facility subject to confidentiality.  

Plaintiff indicates that plaintiff agrees that the inspection should be done in a non-intrusive way, and that plaintiff attempted to gather information through discovery to see, through the eyes of plaintiff’s expert, if that information would be sufficient to avoid an inspection.  Defendant objected to providing photographs and measurements related to the room where plaintiff was assigned.  [Boris Decl, para. 9, Ex. 5, Response to Request for Production of Documents, Set Two, Response to Request No. 2].  Defendant’s counsel has advised the requested information will not be provided as it is not relevant to the litigation.  [Boris Decl., para. 9].  It would appear, however, that this information would be directly relevant to the distance between the room and the area where it is alleged supervision did not occur, and the timing with respect to the incident.  Accordingly, it is clear that the information concerning plaintiff’s room has not, and will not be, provided through less intrusive means.  The opposition also indicates that plaintiff’s expert has confirmed that an inspection is needed regardless of whether this information is later provided to help form an opinion related to liability and to properly describe the facility. As the court was previously made aware, the caged area plaintiff’s sibling recalled from visits to the facility at the time did not appear to be properly reflected in photographs presented at her deposition.  

Plaintiff indicates plaintiff is willing to perform the site inspection under the following conditions:

(1) Plaintiff will sign a non-disclosure of 3rd party identity information, to the extent such information is disclosed

(2) Plaintiff will ensure that no patients are in any photographs or videos takes, and 

(3) Plaintiff will conduct the inspection in off peak hours, so long as defendant will instruct its employees to help direct patients and/or staff. 

Defendant in reply argues that the areas to be inspected are common areas, and not easily shut off, but does not explain how this would pose undue burden under the circumstances if the inspection is limited in time and space, and subject to reasonable efforts to schedule when the areas are not occupied, or which areas may be briefly closed off from non-emergency occupation.   Defendant was apparently able to take photographs of some of the subject areas when patients were not in the area and included in the photographs.  

Plaintiff has argued that the identity concerns of other patients would be no greater than when visitors are allowed to see other patients, who might encounter third party patients while in the facility.  While defendants argue that such visits are limited and subject to the consent of the patient being visited, it does not appear that the consent is required of all other patients in the facility who might be encountered in passing in common areas by such a visitor to another patient.   

The plaintiff is entitled under the Discovery Act to an inspection as requested, and that defendant’s concern with respect to the confidentiality of patients with respect to their stay at a mental health care facility reasonably could be addressed by limiting the scope of the inspection as offered by plaintiff, and scheduling the inspection for a time when patients are not likely to be present, or at a time when patients can be reasonably temporarily directed away from the area by defendant and its staff.  

Under CCP section 2031.060(g):

“If the motion for a protective order is denied in whole or in part, the court may order that the party to whom the demand was directed provide or permit the discovery against which protection was sought on terms and conditions that are just.”

The site inspection is ordered to be permitted on terms and conditions as described.   

RULING:

Motion for Protective Order Prohibiting a Site Inspection of the Facility is DENIED.  The Court will not direct that the inspection not be permitted at all, but will order the inspection to occur as qualified by the operative demand and the opposition papers. 

Good cause appearing, and pursuant to CCP section 2031.060 (b)(4) and (g), the site inspection is ordered to be permitted with the Court directing that the inspection be made only on specified terms and conditions, as the Court finds just. 

Defendant BHC Alhambra Hospital Inc. is ORDERED to permit the site inspection demanded in Plaintiff’s Amended Demand for Site Inspection served on December 28, 2022, on the following terms and conditions which the Court deems just:

Site inspection is to be permitted of the premises of BHC Alhambra Hospital, located at 4619 Rosemead Blvd., Rosemead, CA 91770,  limited, as specified in the Amended Demand, to the following areas: Plaintiff’s room at the facility, the patio area, and the path from Plaintiff’s room to the patio area.  The inspection is to include inspection and photography of camera and video surveillance systems within the subject area only.     

The inspection is to take no longer than one hour and to take place in off-peak hours, when any patient occupying plaintiff’s room is absent or can be temporarily relocated, and when other patients can be instructed or assisted by defendant’s agents and employees to avoid the inspection areas, other than for emergency purposes.  

Plaintiff will ensure that no patients are in any photographs or video takes.

Plaintiff will not disclose any third party information obtained during the inspection. 

Site inspection is to be permitted at a mutually agreed upon date and time on or before sixty days from now, or no later than June 16, 2023.

 

DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE 

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