TENTATIVE RULING

Calendar: 8

Date: 10/20/2023

Case No: 22 STCV24687 Trial Date: May 6, 2024

Case Name: Abramson v. Spinnaker Insurance Company, et al. 

MOTIONS TO QUASH SUBPOENAS (3)

Moving Party: Plaintiff Paul J. Abramson   

Responding Party: Defendants Spinnaker Insurance Company and Hippo Analytics Inc.        

RELIEF REQUESTED:

Quash Second Subpoena for Production of Business Records to Kaiser Permanente Radiology

Quash Second Subpoena for Production of Business Records to KFH/SCPMG (Billing) 

Quash Second Subpoena for Production of Business Records to KFH/SCPMG (Electronic & Paper Medical Records)

FACTUAL BACKGROUND:

Plaintiff Paul Abramson, also known as Paul Van Richter, brings this action against defendant Spinnaker Insurance Company (Spinnaker) and Spinnaker’s claims administrator, defendant Hippo Analytics, Inc. (Hippo), alleging that defendants engaged in unlawful claims handling practices, and breached their duty to defend, and also breached the implied covenant of good faith and fair dealing owed to plaintiff under plaintiff’s homeowners insurance policy.  

The complaint alleges that when plaintiff tendered a claim for defense in a dispute with his homeowners’ association (HOA), Hippos wrote to the HOA rejecting the HOA’s demand to enter and inspect plaintiff’s condominium unit, which led to the HOA filing an underlying lawsuit against plaintiff.   The complaint alleges that plaintiff subsequently tendered the HOA’s lawsuit to Spinnaker for a defense, which Spinnaker has denied.

The complaint alleges causes of action for declaratory relief and damages, breach of contract, breach of the implied covenant of good faith and fair dealing, and negligence. 

ANALYSIS:

The motions involve three subpoenas for records pertaining to plaintiff.  Plaintiff indicates that subpoenas to the subject medical providers were previously issued by defendants but withdrawn after plaintiff served written objections and filed motions to quash those subpoenas.  The subpoenas which are the subject of these motions were evidently issued on July 28, 2023.  Plaintiff indicates that plaintiff served objections to the subject subpoenas, but the text of those objections are not included in the separate statements.  

The subpoenas seek the following records:

KFH/SCPMG (Billing): 

“BILLING RECORDS

ALL ITEMIZED STATEMENTS OF BILLING CHARGES, INVOICES, RECORDS OF ADJUSTMENTS AND/OR WRITE-OFFS, PAYMENTS AND CREDITS, EXPLANATION OF BENEFITS, BALANCES DUE AND INSURANCE RECORDS. 

ALL OF THE ABOVE PERTAINING TO THE CARE, TREATMENT OR EXAMINATION OF PAUL VON RICHTER (DOB: 08/05/1961; AKA: PAUL JOSEPH ABRAMSON; PAUL J. ABRAMSON) FROM 01/01/2018 TO, AND INCLUDING, THE PRESENT.”

[Cohen Decl., Ex. A].

Kaiser Permanent Radiology:

“RADIOLOGY

ALL DIAGNOSTIC IMAGING, INCLUDING X-RAYS, MRI'S, CT SCANS, PERTAINING TO THE CARE, TREATMENT OR EXAMINATION OF PAUL VON RICHTER (DOB: 08/05/1961; AKA: PAUL JOSEPH ABRAMSON; PAUL J. ABRAMSON) FROM 01/01/2018 TO, AND INCLUDING, THE PRESENT.”

[Cohen Decl., Ex. A]. 

KFH/SCPMG (Electronic and Paper Medical Records:

“MEDICAL RECORDS 

ALL DOCUMENTS, MEDICAL RECORDS, OFFICE RECORDS, EMERGENCY ROOM RECORDS, SIGN-IN SHEETS, RADIOLOGICAL REPORTS, MEDICAL TESTS, INPATIENT AND OUTPATIENT CHARTS AND RECORDS PERTAINING TO THE CARE, TREATMENT OR EXAMINATION OF PAUL VON RICHTER (DOB: 08/05/1961; AKA: PAUL JOSEPH ABRAMSON; PAUL J. ABRAMSON) FROM 01/01/2018 TO, AND INCLUDING, THE PRESENT. Records being requested are the ELECTRONIC MEDICAL RECORDS ONLY.”

[Cohen Decl., Ex. A]. 

Plaintiff argues that the original subpoenas sought plaintiff’s medical records since birth and were ultimately withdrawn after plaintiff filed a motion to quash, with defendants contending that the broad request for documents since birth was merely a mistake.  Plaintiff argues that the reissued subpoenas simply include a shorter, but still overly broad, timeframe.   The documents are sought from January 1, 2018, so seek roughly five years of records. 

Plaintiff seeks relief under CCP section 1985.3, which provides:

“(g) Any consumer whose personal records are sought by a subpoena duces tecum and who is a party to the civil action in which this subpoena duces tecum is served may, prior to the date for production, bring a motion under Section 1987.1 to quash or modify the subpoena duces tecum.  Notice of the bringing of that motion shall be given to the witness and deposition officer at least five days prior to production.   The failure to provide notice to the deposition officer shall not invalidate the motion to quash or modify the subpoena duces tecum but may be raised by the deposition officer as an affirmative defense in any action for liability for improper release of records.” 

Plaintiff also relies on CCP § 1987.1, which provides in pertinent part:

“When a subpoena requires the attendance of a witness or the production of books, documents or other things before a court, upon motion reasonably made by the party, the witness, or any consumer described in Section 1985.3, or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon such terms or conditions as the court shall declare, including protective orders.  In addition, the court may make any other orders as may be appropriate to protect the parties, the witness, or the consumer from unreasonable or oppressive demands including unreasonable violations of a witness’ or consumer’s right of privacy.”

Plaintiff also cites to CCP section 2019.030(a), which provides:

“(a) The court shall restrict the frequency or extent of use of a discovery method provided in Section 2019.010 if it determines either of the following:

(1) The discovery sought is unreasonably cumulative or duplicative or is obtainable from some other source that is more convenient, less burdensome, or less expensive.

(2) The selected method of discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation.”

“(b) The court may make these determinations pursuant to a motion for a protective order by a party or other affected person. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.”

  With respect to quashing discovery, the burden is on the moving party to establish good cause for the relief requested.  Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1110.   The granting or denial of relief is reviewed for abuse of discretion.   See Meritplan v. Superior Court (1981) 124 Cal.App.3d 237, 242.  

Plaintiff in the moving papers concedes that in this action “Plaintiff has alleged certain medical damages resulting from this action,” but the disclosure of all medical and billing information and diagnostic imaging since January 1, 2018 without limitation is not relevant to the case, is overbroad, and is intended to be unduly burdensome and to harass plaintiff.   Plaintiff argues that defendants never requested the relevant documentation directly from plaintiff, which would be a more cost-effective, feasible means of obtaining information relating to plaintiff’s medical conditions at issue. 

With respect to the privacy objection, under Evidence Code § 990 and 1010, a patient enjoys a privilege to refuse to disclose any “confidential communication” between himself and a treating physician.   Section 996 provides an exception where the patient is a litigant, stating that there “is no privilege... as to a communications relevant to an issue concerning the condition of the patient is such issue has been tendered by ...[the] patient.”  

Plaintiff relies on Britt v. Superior Court (1978) 20 Cal.3d 844, in which the California Supreme Court reversed a trial court’s order granting a motion to compel discovery of a plaintiff homeowner’s medical histories in a nuisance and personal injury case against an airport, concluding:

 “While [plaintiffs] may not withhold information which relates to any physical or mental condition which they have put in issue by bringing this lawsuit, they are entitled to retain the confidentiality or all unrelated medical or psychotherapeutic treatment they may have undergone in the past.   The trial court thus obviously erred in ordering plaintiffs to disclose to defendants their entire lifetime medical histories...”

Britt, at 864.

Britt noted in a footnote:

“It should be understood, of course, that insofar as a number of injuries or illnesses, some related and some unrelated to the airport operations, have contributed to a medical condition placed in issue by a plaintiff, defendant is entitled to obtain information as to all such injuries or illnesses.  Thus, for example, if a plaintiff claims that the airport operations have damaged his respiratory system, plaintiff would be obliged to disclose all medical information relating to his respiratory condition and could not limit discovery simply to those airport-related incidents which have allegedly impaired his condition.”

Britt, at 864, fn.9.

Plaintiff acknowledges that in evaluating a discovery order, the trial court should apply the framework set forth in Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, for evaluating invasion of privacy claims. 

First, a claimant must possess a “legally protected privacy interest.” Hill, at 35.  Second, the claimant must have a reasonable expectation of privacy under the particular circumstances, including the customs, practices, and physical settings surrounding particular activities.  Hill, at 36-37.  Third, the invasion of privacy must be serious in nature, scope, and actual or potential impact.  Trivial invasions do not create a cause of action.  Hill, at 37.  If there is a reasonable expectation of privacy and the invasion of privacy is serious, then the court must balance the privacy interest at stake against other competing or countervailing interests.  Hill, at 37-40. 

The California Supreme Court in Williams v. Superior Court (2017) 3 Cal.5th 531, reiterated that the Hill analysis is to be applied in determining the scope of discovery of private information, and that the burden to establish a privacy interest remains initially with the party asserting such an interest: 

 “The state Constitution expressly grants Californians a right of privacy. (Cal. Const., art. I, § 1.) Protection of informational privacy is the provision's central concern. (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35, 26 Cal.Rptr.2d 834, 865 P.2d 633.) In Hill, we established a framework for evaluating potential invasions of privacy. 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. (Id. at pp. 35–37, 26 Cal.Rptr.2d 834, 865 P.2d 633.) 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. (Id. at pp. 37–40, 26 Cal.Rptr.2d 834, 865 P.2d 633.).”

Williams, at 552. 

“Marshalls argues Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 865 P.2d 633 did not overrule the compelling interest/compelling need test, but only concluded such an interest need not be shown in every case. This is correct so far as it goes. A threatened invasion of privacy can, to be sure, be extremely grave, and to the extent it is, to conclude in a given case that only a compelling countervailing interest and an absence of alternatives will suffice to justify the intrusion may be right. (See, e.g., American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 340–342, 66 Cal.Rptr.2d 210, 940 P.2d 797.) But the flaw in the Court of Appeal's legal analysis, and in the cases it relied upon, is the de facto starting assumption that such an egregious invasion is involved in every request for discovery of private information. Courts must 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. What suffices to justify an invasion will, as Marshalls recognizes, vary according to the context. Only obvious invasions of interests fundamental to personal autonomy must be supported by a compelling interest. (Hill, at p. 34, 26 Cal.Rptr.2d 834, 865 P.2d 633.) To the extent prior cases require a party seeking discovery of private information to always establish a compelling interest or compelling need, without regard to the other considerations articulated in Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 865 P.2d 633, they are disapproved.”

Williams, at 557. 

Here, the moving papers make no attempt to establish an objectively reasonable expectation of privacy in the given circumstances, or a threatened intrusion that is serious, other than broadly arguing that plaintiff is entitled to maintain privacy other with respect to plaintiff’s “minor injuries related to this action.”  Plaintiff does not explain what injuries he is pursuing or indicate how the subpoena could be effectively limited to discovery related to those injuries.  Plaintiff does not offer to enter into a stipulation that he will not be pursuing personal injury damages in this action.    

Defendants in opposition argue that they have a direct interest in discovering information concerning the conditions for which plaintiff is pursuing damages in this action. 

Defendants show that in response to defendants’ Form Interrogatories plaintiff responded that he attributes physical, mental and emotional injuries to the incident, and identifies a herniated disc.  

 “FORM INTERROGATORY NO. 6.1: 

Do you attribute any physical, mental, or emotional injuries to the INCIDENT? (If your answer is “no,” do not answer interrogatories 6.2 through 6.7.) 

RESPONSE TO FORM INTERROGATORY NO. 6.1: Responding Party objects to the phrase "INCIDENT" as being vague in relation to the multiple incidents alleged in the complaint. Subject to and without waiving the foregoing objections, Responding Party provides the following response: 

Yes. 

FORM INTERROGATORY NO. 6.2:

Identify each injury you attribute to the INCIDENT and the area of your body affected. 

RESPONSE TO FORM INTERROGATORY NO. 6.2: Responding Party objects to the phrase "INCIDENT" as being vague in relation to the multiple incidents alleged in the complaint. Subject to and without waiving the foregoing objections, Responding Party provides the following response: 

Herniated Disc.”

[Martino Decl., Ex. B, Responses to Form Interrogatories Nos. 6.1 and 6.2]. 

“(a) Kaiser Permanente Los Angeles Medical Center; 4867 W. Sunset Blvd, Los Angeles CA 90027; (833)574-2273; 

(b) Plaintiff had MRI imaging completed, medication was prescribed, Plaintiff underwent chiropractic treatment, an outpatient procedure, and attended physical therapy; 

(c) Plaintiff completed physical therapy from February 2022 through June 2022; 

(d) Plaintiff has incurred approximately $1,000 of costs.”

[Martino Decl., Ex. B, Responses to Form Interrogatories No. 6.4]. 

“(a) Steroids then Gabapentin; 

(b) Dr. Luchin at Kaiser Permanente Los Angeles Medical Center; 

(c) February 22, 2022; 

(d) February 2022 through June 2022; 

(e) Plaintiff has incurred approximately $20 of costs.”

[Martino Decl., Ex. B, Responses to Form Interrogatories Nos. 6.1 and 6.2]. 

Those requests included a request for:  

“All WRITINGS as defined by Evidence Code section 250 that relate, refer or pertain to any of the damages YOU are seeking in YOUR COMPLAINT.”

[Martino Decl., Ex. C, Request for Production No. 17. 

“I have been working on this matter since it came into our office in or around July 12 2022. I have handled all aspects of the matter, including the propounding of discovery and analysis of responses and documents received. Plaintiff produced several hundred pages of documents in responses to the requests for production of documents, none of which included billing records or evidence of costs paid by plaintiff.”

[Martino Decl., para. 5]. 

It is reasonable to limit the scope of the subpoenas to records related to treatment of the areas of the body including the back area and spine, and including all consultation and treatment related to the condition of a herniated disc.  The records will also include any documentation of any chiropractic treatment, outpatient procedure, and physical therapy affiliated with those body parts or conditions, and of any condition necessitating the taking by plaintiff of steroids and/or Gabapentin.  The five-year period for which documents are requested is reasonable.   

Sanctions

Plaintiff seeks sanctions for the expense of bringing these motions. 

Plaintiff relies on CCP § 187.2 (a), which provides:

“(a) Except as specified in subdivision (c), in making an order pursuant to motion made under subdivision (c) of Section 1987 or under Section 1987.1, the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney's fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.”

CCP § 2023.040 clearly requires that:

 “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.  The notice of motion shall be supported by a memorandum of points and authorities and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.” 

(Emphasis added). 

RULING:

Plaintiff Paul J. Abramson’s Motion to Quash Defendants Spinnaker Insurance Company’s and Hippo Analytics Inc.’s Second Subpoena to Kaiser Permanent Radiology for Diagnostic Imaging:

Motion is GRANTED in part.  The Court has considered plaintiff’s  expectation of privacy in his medical and billing records, and the seriousness of the intrusion into that privacy by the subpoena issued, as well as defendants Spinnaker Insurance Company and Hippo Analytics Inc.’s countervailing interest in discovering information concerning medical conditions which they have established are directly relevant to this action, as involving conditions of plaintiff’s which have been tendered by plaintiff, and for which he is pursuing damages.  The Court finds that the balance weighs in favor of permitting limited discovery in this matter into plaintiff’s medical records, billing, and imaging records.  

The Court finds that defendants have established direct relevance to this action concerning a condition of plaintiff which has been tendered by plaintiff only to the extent defendants seek medical records, billings and imaging documents relating to records arising from plaintiff’s medical treatment, history and medical billings as to the following body parts and conditions:

1. Back area

2. Spine

3. Herniated Disc 

4. Chiropractic Treatment related to the foregoing body parts and conditions 

5. Physical Therapy related to the foregoing body parts and conditions  

6. Outpatient Procedures related to the foregoing body parts and conditions 

7. Taking of steroids 

8. Taking of Gabapentin 

The Court therefore modifies all subpoenas with respect to medical, billing and imaging records to request only documents concerning the above identified body parts and issues. The subpoenas as so limited must be responded to by December 1, 2023.

Requests for sanctions by moving party is DENIED. 

No request for sanctions is made in the notice of motion, and the request is not accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought, as required under CCP § 2023.040.  The Court also cannot find under the circumstances, where the motion is granted in significant part, that the motion was opposed in bad faith. 

  

Plaintiff Paul J. Abramson’s Motion to Quash Defendants Spinnaker Insurance Company’s and Hippo Analytics Inc.’s Second Subpoena to KFH/SCPMG (Billing) for Billing Records: 

Motion is GRANTED in part.  The Court has considered plaintiff’s  expectation of privacy in his medical and billing records, and the seriousness of the intrusion into that privacy by the subpoena issued, as well as defendants Spinnaker Insurance Company and Hippo Analytics Inc.’s countervailing interest in discovering information concerning medical conditions which they have established are directly relevant to this action, as involving conditions of plaintiff’s which have been tendered by plaintiff, and for which he is pursuing damages.  The Court finds that the balance weighs in favor of permitting limited discovery in this matter into plaintiff’s medical records, billing, and imaging records.  

The Court finds that defendants have established direct relevance to this action concerning a condition of plaintiff which has been tendered by plaintiff only to the extent defendants seek medical records, billings and imaging documents relating to records arising from plaintiff’s medical treatment, history and medical billings as to the following body parts and conditions:

1. Back area

2. Spine

3. Herniated Disc 

4. Chiropractic Treatment related to the foregoing body parts and conditions 

5. Physical Therapy related to the foregoing body parts and conditions  

6. Outpatient Procedures related to the foregoing body parts and conditions 

7. Taking of steroids 

8. Taking of Gabapentin 

The Court therefore modifies all subpoenas with respect to medical, billing and imaging records to request only documents concerning the above identified body parts and issues. The subpoenas as so limited must be responded to by December 1, 2023.

Requests for sanctions by moving party is DENIED. 

No request for sanctions is made in the notice of motion, and the request is not accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought, as required under CCP § 2023.040.  The Court also cannot find under the circumstances, where the motion is granted in significant part, that the motion was opposed in bad faith.

Plaintiff Paul J. Abramson’s Motion to Quash Defendants Spinnaker Insurance Company’s and Hippo Analytics Inc.’s Second Subpoena to KFH/SCPMG (Electronic & Paper Medical Records) for Medical Records:

Motion is GRANTED in part.  The Court has considered plaintiff’s  expectation of privacy in his medical and billing records, and the seriousness of the intrusion into that privacy by the subpoena issued, as well as defendants Spinnaker Insurance Company and Hippo Analytics Inc.’s countervailing interest in discovering information concerning medical conditions which they have established are directly relevant to this action, as involving conditions of plaintiff’s which have been tendered by plaintiff, and for which he is pursuing damages.  The Court finds that the balance weighs in favor of permitting limited discovery in this matter into plaintiff’s medical records, billing, and imaging records.  

The Court finds that defendants have established direct relevance to this action concerning a condition of plaintiff which has been tendered by plaintiff only to the extent defendants seek medical records, billings and imaging documents relating to records arising from plaintiff’s medical treatment, history and medical billings as to the following body parts and conditions:

1. Back area

2. Spine

3. Herniated Disc 

4. Chiropractic Treatment related to the foregoing body parts and conditions 

5. Physical Therapy related to the foregoing body parts and conditions  

6. Outpatient Procedures related to the foregoing body parts and conditions 

7. Taking of steroids 

8. Taking of Gabapentin 

The Court therefore modifies all subpoenas with respect to medical, billing and imaging records to request only documents concerning the above identified body parts and issues. The subpoenas as so limited must be responded to by December 1, 2023.

Requests for sanctions by moving party is DENIED. 

No request for sanctions is made in the notice of motion, and the request is not accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought, as required under CCP § 2023.040.  The Court also cannot find under the circumstances, where the motion is granted in significant part, that the motion was opposed in bad faith.

  DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE 

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