Judge Ralph C. Hofer, Case Number: BC699002, Date: 2023-09-08 Tentative Ruling

Plaintiff Lisa Goodrich alleges that on June 19, 2017, while she was a passenger in a vehicle which was entering an intersection, defendant Guillermo Eduardo Padilla, Jr., driving a tractor-trailer, made an unsafe left-hand turn, causing a massive collision, which totaled the vehicle where plaintiff was a passenger and caused a life-changing injury to plaintiff requiring a cervical fusion surgery. The complaint alleges that defendant was negligent per se and caused the collision in violation of the California Vehicle Code (failure to yield right of way while making left hand turn). The complaint alleges that at the time of the collision, defendant was driving a truck owned by defendant R+L Carriers in the course and scope of defendant Padilla’s employment with defendant R+L Carriers.

Under CCP § 2017.010, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action..., if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.”

“(a) If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), 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 those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.”

With respect to limiting discovery, the burden is generally 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 Insurance Co. v. Superior Court (1981, 2nd Dist.) 124 Cal.App.3d 237, 242.

Plaintiff Lisa Goodrich seeks to quash subpoenas directed to a hospital, Las Encinas Hospital, where plaintiff’s psychiatrist, Stephan Simonian, M.D., indicated in his deposition plaintiff had informed him plaintiff had been previously admitted as a patient.

It appears from the file that the court has in this matter denied a motion to quash a subpoena to plaintiff’s psychiatrist Dr. Simonian, which subpoena sought records only “from SEPTEMBER, 2012 to the present date.” [Minute Order 12/02/2022, p. 4].

The file also shows that the court previously granted an ex parte application brought by defendants for an order compelling Beverly Lockwood-Conlans, plaintiff’s treating therapist, to comply with a deposition subpoena. The court’s order states, in pertinent part:

4. The subject-matter scope of Ms. Lockwood-Conlan’s deposition is limited to testimony regarding Plaintiff’s bipolar disorder and the subject accident, including treatment therefore and the effects of the accident on Plaintiff.”

“Any and all medical records, files, reports, correspondence, whatsoever, relating to any care, treatment, diagnosis, prognosis, consultation and/or findings, including but not be limited to, any and all emergency room records, nurses notes, SOAP notes, operative reports, radiology reports, pathology reports, all test and test results, medication records, physical and/or occupational therapy records, workers' compensation records, sign-in sheets, color photographs, patient information sheets, handwritten notes, transcriptions, prescriptions, telephone messages, electronic media and any documents in the file from other health care providers, from any and all times to the present date pertaining to Lisa Goodrich AKA: Lisa Cuomo, Lisa White; DOB: 12/9/1968; SS#: XXX-XX-5501. Documents produced should also include, but not be limited to, any and all electronically stored documents in your possession.

Plaintiff argues that the subpoena is not limited by time or substance, but clearly seeks plaintiff’s lifetime of medical treatment. Plaintiff also argues that the Court previously has permitted discovery into plaintiff’s previous mental health issues with express temporal limitations, five years prior to the accident, and subject matter limitations, plaintiff’s bipolar disorder and the subject accident.

Plaintiff argues that the subpoena seeks information concerning prior psychiatric hospitalization stays that occurred twelve years prior to the accident, that the information is subject to plaintiff’s constitutional right to privacy, and that defendant cannot show a compelling need for the information because it is remote in time and wholly unrelated to the litigation.

Under Evidence Code § 994, a patient enjoys a privilege to refuse to disclose any “confidential communication” between the patient and a physician. Section 996 provides an exception where the patient is a litigant, stating that there “is no privilege... as to a communication relevant to an issue concerning the condition of the patient if such issue has been tendered by ...

In Britt v. Superior Court (1978) 20 Cal.3d 844, 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...”

As noted above, this court has already previously engaged in the balancing of interests with respect to plaintiff’s privacy arguments, and determined that discovery in this case into plaintiff’s prior medical and mental history is to be subject to the limitations discussed above, that is “limited to…treatment of Plaintiff from five (5) years before the subject accident to the present,” and “limited to” discovery “regarding Plaintiff’s bipolar disorder and the subject accident.”

Plaintiff argues here repeatedly in the Memorandum of Points and Authorities that the hospital stays at the subject hospital occurred twelve years prior to the accident, so would not fall within the court’s previously determined acceptable timeframe. [Memorandum, p. 4:1-2; p. 7:25-26]. The problem with the argument is that it is not supported by a declaration or any clear evidence that the only contact plaintiff has had with the subject hospital occurred twelve or more years ago.

Plaintiff has not submitted her own sworn declaration supporting this representation. The declaration of counsel states that Dr. Simonian’s deposition was taken on January 16, 2023, and that “Dr. Simonian testified that Plaintiff informed him that, in or around 2005, Plaintiff received psychiatric hospitalization for Las Encinas Hospital.” [Mullen Decl., para. 2]. This statement relies on multiple levels of hearsay, and counsel would have no personal knowledge concerning the dates of plaintiff’s hospitalizations.

There is testimony concerning Dr. Simonian’s handwritten notes from 5/1/09, asking him if he can read the notes. [Mullen Decl., Ex. 2, Simonian Depo. p. 11]. There is then a page skipped in the transcript, and the testimony highlighted is:

“Past history. First saw a psychiatrist 15 years ago when was 25 years old. Patient was having problem at work and was having mood swings. Patient had several psych hospitalization. First hospitalization was at age 25 years old; last hospitalization was four years ago. Last

It is not clear if this refers to notes from May 1, 2009, or to more recent notes from which the “four years ago” date would be measured. Dr. Simonian also would have no personal knowledge if the information given to him by the patient concerning the dates was accurate or estimated.

Defendants in opposition argue that plaintiff has placed her mental health at issue by seeking significant damages related to her mental health issues and depression, and reiterates arguments previously made to and considered by the court. Defendants argue in connection with the subject subpoena that Dr. Simonian has testified under oath that plaintiff had undergone several psychiatric hospitalizations prior to the subject incident and was hospitalized at Las Encinitas Hospital because of suicidality. Defendants also submit a portion of the deposition transcript, which does not clarify from what date the four years ago reference can be traced. [See Shimkin Decl., Ex. B].

Defendants do not address the argument that the hospitalizations may have occurred significantly beyond the five-year window defendants voluntarily previously set with the Dr. Simonian subpoena, and which this court has consistently applied as an appropriate limitation on the invasion of plaintiff’s privacy.

However, the court remains unable to ascertain from any admissible evidence whether the objection that the hospitalizations occurred outside the time limitation is factually justified. This matter accordingly is continued to permit plaintiff to submit a declaration under oath stating that plaintiff was in Las Encinitas Hospital from a specific date or dates until a specific date or dates. Defendants will also be permitted the opportunity to submit evidence which would suggest that plaintiff was in fact hospitalized at the subject hospital during the five years preceding the incident in June of 2017, or to clarify what materials and dates Dr. Simonian was testifying to, if within the five-year window.

Plaintiff Lisa Goodrich’s Motion to Quash Subpoena to Las Encinas Hospital is continued to September 29, 2023 for the submission by plaintiff of a declaration under oath supporting the statements in her memorandum of points and authorities that all the hospitalizations at Las Encinas Hospital occurred twelve years ago, or otherwise before 2012, the five-year period previously determined to be an appropriate limitation on discovery concerning plaintiff’s mental condition. The declaration must specify the date or dates when plaintiff entered the hospital and the date or dates when plaintiff left the hospital and can be accompanied by any explanation or copies of materials to which plaintiff referred, if necessary, to refresh her recollection on this point. The declaration must be filed and served no later than September 15, 2023 (nine court days before the hearing or more), and any response to the declaration by defendants or further evidence must be filed and served no later than September 25, 2023 (five court days before the hearing or more).

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