Judge Serena R. Murillo, Case 21STCV27256 2022-12-15 Tentative Ruling

Judge: Serena R. Murillo, Case: 21STCV27256, Date: 2022-12-15 Tentative Ruling

Case Number: 21STCV27256 Hearing Date: December 15, 2022 Dept: 29

TENTATIVE

The Court DENIES Defendants’ motion to quash the educational records, but limits production to records of discipline actually imposed by the schools for two years preceding the accident date.

The Court GRANTS the motion to quash pediatric records.

The Court GRANTS Defendants’ request for a protective order.

Legal Standard

Under CCP § 1987.1(a), "[i]f 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…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.” The court may also make orders “to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.”¿(Ibid.)

Discussion

1. Relevance

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

In support of their arguments, both parties refer to Robertson and Poncher, although neither involved the discovery of records. As such, the parties generally agree on the law of what a plaintiff must show to trigger a parent’s duty to control a child’s dangerous tendencies. In Robertson, the court stated, “[o]nly the manifestation of specific dangerous tendencies triggers a parental duty to exercise reasonable care to control the minor child in order to prevent intentional harm to third persons.” (Robertson v. Wentz (1986) 187 Cal.App.3d 1281, 1290.) There, a child shot and killed someone in a robbery, but the appellate court found that the respondent parent had no knowledge of her son’s propensity for violence and therefore the trial court did not err in finding no legal basis for appellant’s claim that respondent negligently controlled and supervised her son. (Id. at 1291.) Further, in Poncher, the court stated, “there is no liability upon the parent unless he has notice of a specific type of harmful conduct” however a parent may be under a duty “once specific dangerous tendencies have been manifested.” (Poncher v. Brackett (1966) 246 Cal.App.2d 769, 771-772.)

The facts of the cases relied upon are a far cry from the facts at issue here. Plaintiff served subpoenas on YULA Boys High School, where Josh went to high school, and on Beverly Hills Unified School District, where Josh went to middle school. The subpoenas seek the cumulative records for Josh, limited to disciplinary records, or records ancillary to discipline (e.g. letters concerning discipline, meeting notes concerning discipline, etc.). The third subpoena is to Dr. Aziz Nourmand, Josh’s pediatrician. The third subpoena is limited to Josh’s behavioral issues, including medications prescribed, referrals by the Doctor, suggestions that Josh seek treatment, and other related records, within the last 10 years.

Defendants assert that Plaintiff is not entitled to discovery of all conduct Josh may have manifested, but only conduct at issue in this case, specifically, that conduct that triggers a parental duty. Plaintiff, however, asserts that is a narrow view of the case law. According to Robertson, evidence that the child previously shot and killed someone in a robbery was not required. Rather, the evidence that was required was evidence of a propensity for violence. Moreover, in Poncher, a parent may be under a duty “once specific dangerous tendencies have been manifested.” In this case, the subpoenas are intended to find manifestations of specific dangerous tendencies and propensity for violence. Plaintiff already knows prior behavioral and disciplinary issues exist because Defendants testified, and therefore, the subpoenaed records are directly relevant. For instance, Josh’s mother testified that her son was suspended from school in 8^th grade for bullying but claimed that she did not recall the details. (Opposition p. 4; Exhibit 1.) Josh also testified that he was suspend for bullying and disciplined for disrupting class. (Opposition p. 4; Exhibit 2.) Further, the parents disciplined Josh for the suspension. (Opposition p. 4; Exhibit 3.)

As both Josh and his parents testified to prior disciplinary issues, i.e. bullying, the court finds the motion to quash the subpoenas issued to Josh’s schools is DENIED. However, the temporal limitation and scope must be limited as potential acts of bullying are not reasonably likely to lead to the discovery of admissible evidence pertaining to negligent or reckless use of a watercraft and attendant use of fake identification. Therefore, the subpoenas are limited to records of discipline actually imposed by the schools for two years preceding the accident date.

As to Josh’s pediatric records, there is no evidence suggesting a probe of these records is likely to lead to the discovery of admissible evidence based upon the facts of this case.

2. Physician-patient Privilege

Under Evidence Code § 999, “There is no privilege under this article as to communication relevant to an issue concerning the condition of the patient in a proceeding to recover damages on account of the conduct of the patient if good cause for disclosure of the communication is shown.”

However, as the court does not find there to be good cause for disclosure of these records, the motion to quash the pediatric records is GRANTED.

3. Right to Privacy

The right of privacy of individuals is protected by the California Constitution. (Cal. Const., Art. I, § 1.) In ruling on discovery motions, the Court must balance the privacy claims of the responding party with the requesting party’s need for the information. (Schnabel v. Superior Court (1993) 5 Cal.4th 704, 718-722.)¿

The party asserting the right of privacy, bears the initial burden of demonstrating (1) a “legally protected privacy interest”; (2) an “objectively reasonable expectation of privacy in the given circumstances”; and (3) a “threatened intrusion that is serious.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 552.) If the party meets this standard, then the other party must show that the requested documents are “directly relevant” to the litigation. (Tylo v. Superior Court (1997) 55 Cal.App.4th 1379, 1387, citing Britt v. Superior Court (1978) 20 Cal.3d 844, 858-859.)¿

Here, the court must balance the rights of Plaintiff to discover relevant facts against the interest of Josh’s privacy interest because it has already been shown that the information sought by the subpoenas is relevant to proving Plaintiff’s case and that he would be unfairly disadvantaged without it. Defendants repeatedly indicate that the school and pediatrician information is private, and that the subpoenas are overbroad. However, Defendants already testified there was school discipline so it is not private. Further, Plaintiff has limited the scope of the subpoenas and denied the request for pediatric records.

4. Protective Order

Defendants request a protective order to cover any documents produced. In the meet and confer process, Plaintiff agreed to enter a protective order to cover any documents obtained by the subpoenas. (Comer Declaration ¶ 2.)

Conclusion

The Court DENIES Defendants’ motion to quash the educational records, but limits production to records of discipline actually imposed by the schools for two years preceding the accident date.

The Court GRANTS the motion to quash pediatric records.

The Court GRANTS Defendants’ request for a protective order.

Moving party to give notice.