Judge: Stephen Morgan, Case: 20AVCV00537, Date: 2022-08-23 Tentative Ruling

                                                                           Department A14 Tentative Rulings 

If parties are satisfied with the tentative ruling, parties may submit by emailing the courtroom at ATPDeptA14@LACOURT.ORG. 

If a matter is also scheduled for a CMC, TSC, OSC, etc., an appearance is still required even if the parties are willing to submit on the tentative ruling.



Case Number: 20AVCV00537    Hearing Date: August 23, 2022    Dept: A14

Background

 

This is a negligence action. Plaintiff Kathleen McVey as conservator on behalf of Sarah McVey (“Plaintiff”) alleges that around February 2016, Sarah McVey, a child with severe down syndrome, attended Defendant Academy for Advancement of Children with Autism - Antelope Valley, Inc. (“Defendant”) at the Lancaster campus where employees of the Academy engaged in negligent and willful acts endangering Sarah. Plaintiff further alleges that Defendant’s employees placed their foot on Sarah’s back hard enough to cause severe bruising and a full-size adult footprint on Sarah’s back and pulled Sarah by her bus harness several times causing severe bruising across Sarah’s back, and pain and injury to Sarah. Because of these occurrences, Plaintiff contends that Sarah was pulled out of school for her own safety, failed to have an appropriate education for 11 months, and currently attends a school in Kansas where she is away from her family and the family is only allowed four visits a year, causing separation anxiety and fear. Plaintiff presents that Sarah suffered emotional and psychological damage that caused and will continue to cause her to seek counseling to help her cope. 

 

On August 03, 2020, Plaintiff filed her Complaint alleging six (6) causes of action for: (1) Violation of Cal. Pen. Code § 273a(b), (2) Negligence, (3) Negligent Supervision/Failure to Warn, (4) Negligent Hiring/Retention, (5) Intentional Infliction of Emotional Distress (“IIED”), and (6) Negligent Infliction of Emotional Distress (“NIED”). 

 

On September 23, 2020, Defendant filed its Answer. 

 

On August 01, 2022, Defendant filed this Motion to Compel Compliance with Deposition Subpoena.

 

On August 10, 2022, the Court held an Order to Show Case RE: Service on North Los Angeles County Regional Center. The Court reviewed the Declaration of O. Brandt Caudill, Jr., filed August 04, 2022, Regarding Order to Show Cause and discharged the matter.

 

On August 10, 2022, the North Los Angeles County Regional Center filed their Response to Defendant’s Motion to Compel Compliance with Deposition Subpoena.

 

No Reply has been filed.  

 

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Legal Standard

 

Standard for Compliance with Subpoena of Nonparty – To require the production of any document or tangible thing for inspection and copying of a nonparty deponent, the party seeking discovery must serve on that deponent a deposition subpoena. (Cal. Code Civ. Proc., §§ 2020.010(b), 2025.280(b); see also Sears, Roebuck & Co. v. National Union Fire Insurance Co. of Pittsburgh (2005) 131 Cal.App.4th 1342, 1350 [discovery from nonparties is governed by Cal. Code of Civil Procedure section 2020.010, et seq., and is primarily carried out by way of subpoena]. A deposition subpoena may command: (1) only the attendance and testimony of the deponent, (2) only the production of business records for copying, or (3) the attendance and testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things. (Cal. Code Civ. Proc., § 2020.020.) Personal service is required on a non-party deponent, unless “the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.” (Cal. Rules of Court, Rule 3.1346; see also Cal. Code Civ. Proc. § 2020.220(c).)

 

Except as modified in Chapter 6 Nonparty Discovery, “the provisions of Chapter 2 (commencing with Section 1985) of Title 3 of Part 4 of this code, and of Article 4 (commencing with Section 1560) of Chapter 2 of Division 11 of the Evidence Code, apply to a deposition subpoena.” (Cal. Code Civ. Proc. § 2020.030.) Service of a deposition subpoena shall be effected a sufficient time in advance of the deposition to provide the deponent a reasonable opportunity to locate and produce any designated documents and, where personal attendance is commanded, a reasonable time to travel to the place of deposition. (Cal. Code Civ. Proc. § 2020.220(a).) Personal service of any deposition subpoena is effective to require a deponent who is a resident of California to: personally appear and testify, if the subpoena so specifies; to produce any specified documents; and to appear at a court session if the subpoena so specifies. (Cal. Code Civ. Proc. § 2020.220(c).)

 

“If, under Section 1985.3 or 1985.6, the one to whom the deposition subpoena is directed is a witness, and the business records described in the deposition subpoena are personal records pertaining to a consumer, the service of the deposition subpoena shall be accompanied either by a copy of the proof of service of the notice to the consumer described in subdivision (e) of Section 1985.3, or subdivision (b) of Section 1985.6, as applicable, or by the consumer’s written authorization to release personal records described in paragraph (2) of subdivision (c) of Section 1985.3, or paragraph (2) of subdivision (c) of Section 1985.6, as applicable.” (Cal. Code Civ. Proc. § 2020.410(d).)

 

A deponent who disobeys a deposition subpoena may be punished for contempt without the necessity of a prior order of the court directing compliance by the witness. (Cal. Code Civ. Proc. § 2020.240.)

 

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Discussion

 

Application – Defendant seeks the following from North Los Angeles County Regional Center (“NLACRC”):

 

  1. Any 2016 IPP discussing Sarah's physical or mental health.

  2. The 12/9/2016 Individualized Program Plan Annual Progress Report of Sarah McVey.

  3. Any notes of Adrienne Covarrubias regarding discussion with Kathleen McVey in 2016 about Sarah McVey's physical and emotional condition.

  4. Any documents showing assertions by Dr. Kathleen McVey in 2016 or 2017 that Sarah McVey was abused by anyone in 2016.

  5. A copy of the updated CDER dated 11/14/18 concerning Sarah McVey.

  6. Any report or statement by Mary Iepala regarding Sarah Mc Vey from 1/1/15 to 1/1/18.

  7.  Any documents from Dr. Kathleen McVey regarding why Sarah McVey was placed at Heartspring Residential in Kansas.

  8. Any documents from Dr. Kathleen McVey discuss when Sarah McVey can live in unspecified setting.

  9. Any documents discussed any legal claim bankruptcy by Dr. Kathleen Mc Vey or behalf of Sarah Mc Vey.

  10. Any documents regarding Dr. Kathleen Mc Vey regarding

  11. Any assessment of Sarah Mc Vey emotion and psychological condition from 1/1/20 to the present.

  12. Any special incidents reports convey Sarah Mc Vey regarding incidents in 2016.

 

(Exh. D.)

 

NLACRC’s response states that it does not oppose this Motion to Compel Compliance with Deposition Subpoena. NLACRC’s response is to clarify its position regarding the production of confidential consumer records and its role relating to consumers.

 

As an initial matter, NLACRC is a private, non-profit organization under contract with the California Department of Developmental Services to coordinate and provide community-based services to persons with intellectual and developmental disabilities. Those individuals are considered consumers under California Law. (See Cal. Welf. & Inst. Code §§ 4643.5(e)(1) and 4512.)

NLACRC’s response expends on this by stating that it does not provide or monitor a consumer’s day-to-day care and that the day-to-day care received by consumers is provided by independent contractors or “vendors” such as Defendant, the moving arty. NLACRC highlights Morohoshi v. Pacific Home (2004) 34 Cal.4th 482 as California Supreme Court precedent that discusses the role of a regional center as encompassing responsibilities to determine through testing and evaluation whether an individual has a developmental disability, to determine whether that disabled person is eligible for services, and to organize a "[p]lanning team," comprised of the individual with the disability, their parents or guardian, one or more Regional Center representatives, and any other person or entity invited to participate, and draw up an individual program plan (IPP). (See Morohoshi, supra, 34 Cal.4th at 487-88.)

 

NLACRC states that it must comply with Cal. Welf. & Inst. Code § 4514 by maintaining the confidentiality of consumer records and requests that the Court, when ordering record production require recipients to take steps to ensure record confidentiality.

 

The subpoena was served by electronic transmission to Plaintiff’s attorney of record. (Exh. D, Proof of Service.) The subpoena requests:

 

1. Any 2016 IPP discussing Sarah's physical or mental health.

2. The 12/9/2016 Individualized Program Plan Annual Progress Report of Sarah Mc Vey.

3. Any notes of Adrienne Covarrubias regarding discussion with Kathleen McVey in 2016 about Sarah McVey's physical and emotional condition.

4. Any documents showing assertions by Dr. Kathleen McVey in 2016 or 2017 that Sarah McVey was abused by anyone in 2016.

5. A copy of the updated CDER dated 11/14/18 concerning Sarah McVey.

6. Any report or statement by Mary Iepala regarding Sarah Mc Vey from 1/1/15 to 1/1/18. 7. Any documents from Dr. Kathleen McVey regarding why Sarah McVey was placed at Heartspring Residential in Kansas.

8. Any documents from Dr. Kathleen McVey discuss when Sarah McVey can live in unspecified setting.

9. Any documents discussed any legal claim bankruptcy by Dr. Kathleen Mc Vey or behalf of Sarah Mc Vey.

10. Any documents regarding Dr. Kathleen Mc Vey regarding any assessment of Sarah McVey’s emotional and psychological condition from 1/1/20 to the present.

11. Any special incidents reports convey Sarah Mc Vey regarding incidents in 2016.

 

(Exh. D.)

 

The confidentiality provisions of Cal. Welf. & Inst. Code §§¿5328 and 4514 establish an absolute privilege, subject only to the exceptions specified within those or related statutes. (See Gilbert v. Superior Court (1987) 193 Cal. App. 3d 161, 169; see also State Dept. of Public Health v. Superior Court (2015) 60 Cal. 4th 940, 953 [Supreme Court decision citing Gilbert, supra, 193 Cal. App. 3d 161, 168-69].)

 

The exceptions are:

 

  1. In communications between qualified professional persons, whether employed by a regional center or state developmental center, or not, in the provision of intake, assessment, and services or appropriate referrals. The consent of the person with a developmental disability, or the person’s guardian or conservator, shall be obtained before information or records may be disclosed by regional center or state developmental center personnel to a professional not employed by the regional center or state developmental center, or a program not vendored by a regional center or state developmental center.

  2. When the person with a developmental disability, who has the capacity to give informed consent, designates individuals to whom information or records may be released.

  3. To the extent necessary for a claim, or for a claim or application to be made on behalf of a person with a developmental disability for aid, insurance, government benefit, or medical assistance to which the person may be entitled.

  4. If the person with a developmental disability is a minor, dependent ward, or conservatee, and the person’s parent, guardian, conservator, limited conservator with access to confidential records, or authorized representative, designates, in writing, persons to whom records or information may be disclosed.

  5. For research, if the Director of Developmental Services designates, by regulation, rules for the conduct of research and requires the research to be first reviewed by the appropriate institutional review board or boards. For research, if the Director of Developmental Services designates, by regulation, rules for the conduct of research and requires the research to be first reviewed by the appropriate institutional review board or boards.

  6. To the courts, as necessary to the administration of justice.

  7. To governmental law enforcement agencies as needed for the protection of federal and state elective constitutional officers and their families.

  8. To the Senate Committee on Rules or the Assembly Committee on Rules for the purposes of legislative investigation authorized by the committee.

  9. To the courts and designated parties as part of a regional center report or assessment in compliance with a statutory or regulatory requirement, including, but not limited to, Section 1827.5 of the Probate Code, Sections 1001.22 and 1370.1 of the Penal Code, and Section 6502 of this code.

  10. To the attorney for the person who was sterilized or alleges they have been sterilized, or to the attorney of an individual with a developmental disability in any and all proceedings upon presentation of a release of information signed by the person, except that when the person lacks the capacity to give informed consent, the regional center or state developmental center director or designee, upon satisfying themselves of the identity of the attorney, and of the fact that the attorney represents the person, shall release all information and records relating to the person.

  11. Upon written consent by a person with a developmental disability previously or presently receiving services from a regional center or state developmental center, the director of the regional center or state developmental center, or the director’s designee, may release any information, except information that has been given in confidence by members of the family of the person with a developmental disability, requested by a probation officer charged with the evaluation of the person after the person’s conviction of a crime if the regional center or state developmental center director or designee determines that the information is relevant to the evaluation.

  12. Between persons who are trained and qualified to serve on multidisciplinary personnel teams, as defined in subdivision (d) of Section 18951. The information and records sought to be disclosed shall be relevant to the prevention, identification, management, or treatment of an abused child and the child’s parents pursuant to Chapter 11 (commencing with Section 18950) of Part 6 of Division 9.

  13. When a person with a developmental disability dies from any cause, natural or otherwise, while hospitalized in a state developmental center, the State Department of Developmental Services, the physician and surgeon in charge of the client, or the professional in charge of the facility or the professional’s designee, shall release the patient’s medical record to a medical examiner, forensic pathologist, or coroner, upon request.

  14. To authorized licensing personnel who are employed by, or who are authorized representatives of, the State Department of Public Health, and who are licensed or registered health professionals, and to authorized legal staff or special investigators who are peace officers who are employed by, or who are authorized representatives of, the State Department of Social Services, as necessary to the performance of their duties to inspect, license, and investigate health facilities and community care facilities, and to ensure that the standards of care and services provided in these facilities are adequate and appropriate and to ascertain compliance with the rules and regulations to which the facility is subject.

  15. To a board that licenses and certifies professionals in the fields of mental health and developmental disabilities pursuant to state law, when the Director of Developmental Services has reasonable cause to believe that there has occurred a violation of a law subject to the jurisdiction of a board and the records are relevant to the violation.

  16. To governmental law enforcement agencies by the director of a regional center or state developmental center, or the director’s designee, when (A) the person with a developmental disability has been reported lost or missing or (B) there is probable cause to believe that a person with a developmental disability has committed, or has been the victim of, murder, manslaughter, mayhem, aggravated mayhem, kidnapping, robbery, carjacking, assault with the intent to commit a felony, arson, extortion, rape, forcible sodomy, forcible oral copulation, assault or battery, or unlawful possession of a weapon, as provided in any provision listed in Section 16590 of the Penal Code.

  17. To the Division of Juvenile Facilities and Department of Corrections and Rehabilitation or any component thereof, as necessary to the administration of justice.

  18. To an agency mandated to investigate a report of abuse filed pursuant to either Section 11164 of the Penal Code or Section 15630 of this code for the purposes of either a mandated or voluntary report or when those agencies request information in the course of conducting their investigation.

  19. When a person with a developmental disability, or the parent, guardian, or conservator of a person with a developmental disability who lacks capacity to consent, fails to grant or deny a request by a regional center or state developmental center to release information or records relating to the person with a developmental disability within a reasonable period of time, the director of the regional or developmental center, or the director’s designee, may release information or records on behalf of that person if both of the following conditions are met:

    1. Release of the information or records is deemed necessary to protect the person’s health, safety, or welfare.

    2. The person, or the person’s parent, guardian, or conservator, has been advised annually in writing of the policy of the regional center or state developmental center for release of confidential client information or records when the person with developmental disabilities, or the person’s parent, guardian, or conservator, fails to respond to a request for release of the information or records within a reasonable period of time. A statement of policy contained in the client’s individual program plan shall be deemed to comply with the notice requirement of this paragraph.

  20. When an employee is served with a notice of adverse action, as defined in Section 19570 of the Government Code, certain information and records may be released.

  21. To the person appointed as the developmental services decisionmaker for a minor, dependent, or ward pursuant to Section 319, 361, or 726.

  22. To a protection and advocacy agency established pursuant to Section 4901, information incorporated within certain records may be released

  23. To the regional center clients’ rights advocate who provides service pursuant to Section 4433, unless the consumer objects on the consumer’s own behalf, for the purpose of providing authorized clients’ rights advocacy services pursuant to Section 4418.25 or 4418.7, subparagraph (B) or (C) of paragraph (9) of subdivision (a) of Section 4648, Sections 4684.80 to 4684.87, inclusive, or Section 4698 or 7502.5 of this code, or Section 1267.75 or 1531.15 of the Health and Safety Code.

  24. To authorized personnel who are employed by the Employment Development Department as necessary to enable the Employment Development Department to provide the information required to be disclosed to the State Department of Developmental Services pursuant to subdivision (ak) of Section 1095 of the Unemployment Insurance Code.

  25. To authorized personnel who are employed by the State Department of Social Services as necessary to enable the department to provide the information required to be disclosed to the State Department of Developmental Services pursuant to Section 10850.6.

  26. To authorized personnel who are employed by the California Victim Compensation Board for the purposes of verifying the identity and eligibility of individuals claiming compensation pursuant to the Forced or Involuntary Sterilization Compensation Program described in Chapter 1.6 (commencing with Section 24210) of Division 20 of the Health and Safety Code.

 

(See Cal. Welf. & Inst. Code § 4514.)

 

The exceptions do not encompass to an independent contractor who works with the regional center for the purposes of defense litigation. Therefore, the exceptions do not apply for the purposes that Defendant seeks to obtain NLACRC’s records.

 

Accordingly, the Motion to Compel Compliance with Deposition Subpoena is DENIED.

 

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Conclusion

 

Defendant Academy for Advancement of Children with Autism – Antelope Valley, Inc.’s Motion to Compel Compliance with Deposition Subpoena is DENIED.