Judge: Salvatore Sirna, Case: 24PSCP00345, Date: 2024-09-09 Tentative Ruling

Case Number: 24PSCP00345    Hearing Date: September 9, 2024    Dept: G

Petitioner Katon Dominguez’s Petition to Enforce Access to Medical Records Under Evidence Code § 1158 and Request for Attorney’s Fees and Costs

Respondents: Southern California Permanente Medical Group, Kaiser Foundation Hospitals, and Kaiser Foundation Health Plan, Inc.

TENTATIVE RULING

Petitioner Katon Dominguez’s Petition to Enforce Access to Medical Records Under Evidence Code § 1158 is DEEMED MOOT.

Petitioner Katon Dominguez’s Request for Sanctions is GRANTED against Respondent Southern California Permanente Medical Group in the amount of $1,222.50, payable within thirty (30) days of the issuance of this order.

BACKGROUND

On July 17, 2024, Petitioner Katon Dominguez filed the present petition against Respondents Southern California Permanente Medical Group (SCPMG), Kaiser Foundation Hospitals (Kaiser Hospitals), and Kaiser Foundation Health Plan, Inc. (Kaiser Health Plan, collectively Kaiser).

A hearing on the present petition is set for September 9, 2024.

ANALYSIS

Dominguez petitions the court to order Kaiser to provide copies of Dominguez’s medical records pursuant to Evidence Code section 1158. For the following reasons, the court DENIES the petition as MOOT.

Legal Standard

Evidence Code section 1158, subdivision (b) provides as follows:

“Before the filing of any action or the appearance of a defendant in an action, if an attorney at law or his or her representative presents a written authorization therefor signed by an adult patient, by the guardian or conservator of his or her person or estate, or, in the case of a minor, by a parent or guardian of the minor, or by the personal representative or an heir of a deceased patient, or a copy thereof, to a medical provider, the medical provider shall promptly make all of the patient’s records under the medical provider’s custody or control available for inspection and copying by the attorney at law or his or her representative.” (Evid. Code, § 1158, subd. (b).)

If a medical provider fails to make such records available within five (5) days after receipt of the written authorization, the medical provider with “custody of control of the records” may be subject “to liability for all reasonable expenses, including attorney’s fees, incurred in any proceeding to enforce this section.” (Evid. Code, § 1158, subd. (d).) Enforcement proceedings are established in Code of Civil Procedure section 1985.7, which states “[w]hen a medical provider fails to comply with Section 1158 of the Evidence Code, in addition to any other available remedy, the demanding party may apply to the court for an order to show cause why the records should not be produced.” The court “shall impose monetary sanctions pursuant to Section 1158 of the Evidence Code unless it finds that the person subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 1985.7.)

Discussion

In this case, Dominguez seeks to obtain anesthesia records from Kaiser for an orthopedic surgery that Dominguez underwent on September 18, 2023, at Kaiser Permanente Baldwin Park. On April 3, 2024, Dominguez’s counsel sent a letter to Kaiser requesting Dominguez’s medical records. (Hemesath Decl., ¶ 2.) While Kaiser provided some records on April 17, 2024, Dominguez’s counsel claims the response was incomplete and omitted anesthesia records from Dominguez’s surgery. (Hemesath Decl., ¶ 3.) After counsel demanded the additional records through a paralegal, Kaiser’s staff responded on April 23, 2024, and stated they would provide the additional records. (Hemesath Decl., ¶ 3.) When they failed to do so, Dominguez’s counsel emailed Kaiser on April 26, 2024, and warned that counsel would file a petition if Kaiser did not provide the records within five (5) days. (Hemesath Decl., ¶ 3.) After Kaiser failed to provide the additional records, Dominguez filed the present petition. (Hemesath Decl., ¶ 3-4.) In opposition, Kaiser’s counsel claims they complied with Dominguez’s request by providing the requested records on August 16, 2024, and additional records on August 22, 2024. (Kind Decl., ¶ 3-5.) Based on this representation, the court deems moot the petition by Dominguez, since the subject records were produced.

However, Dominguez also requests sanctions against Kaiser in the amount of $3,585.00. In opposition, Kaiser contends the award of attorney fees and costs pursuant to Evidence Code section 1158, subdivision (d) is discretionary and not mandatory. But Code of Civil Procedure section 1985.7 states “the court shall impose monetary sanctions pursuant to Section 1158 of the Evidence Code unless it finds that the person subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

Kaiser next contends Kaiser acted in good faith and with substantial justification. In making this contention, Kaiser claims Dominguez’s authorization form did not substantially comply the form language outlined in Evidence Code section 1158. Kaiser also claims the authorization form did not specifically request anesthesia records. But Kaiser waived any challenge to these defects by agreeing to respond to Dominguez’s request and failing to raise these objections prior to the filing of the petition. In fact, Kaiser’s staff promised to provide the missing records on three (3) separate occasions, yet failed to do so. (Hemesath Decl., ¶ 3-4, Ex. B.) Because Kaiser’s delay in responding forced Dominguez to file the present petition, the court finds sanctions are warranted.

Last, Kaiser contends Kaiser Hospitals and Kaiser Health Plan are not proper parties as Dominguez’s request for records was only directed to SCPMG. Upon review, the court notes that while the record request was addressed to all three respondents, Dominguez’s authorization only requests “information to be released from” SCPMG. Thus, the court awards sanctions against SCPMG only and does not award sanctions against the other entities.

Accordingly, utilizing a lodestar approach and in view of the totality of the circumstances, the court awards sanctions against SCPMG and finds reasonable attorney fees and costs in the total of amount of $1,222.50 ($787.50 for 3.5 hours drafting the motion and attending the hearing at an hourly rate of $225.00 plus $435.00 in filing fees).

CONCLUSION

Based on the foregoing, Dominguez’s petition is DEEMED MOOT.

Sanctions are awarded against SCPMG in the amount of $1,222.50, payable within thirty (30) days of the issuance of this order.