Judge Stephen Morgan, Case Number: 21AVCV00899, Date: 2023-11-14 Tentative Ruling

This is a personal injury action. Plaintiffs Marycruz Avila (“Marycruz”)[1] and Joanna Avila (“Joanna” and collectively “Plaintiffs”) allege that on or about January 09, 2021, Defendants Antelope Valley Healthcare District dba Antelope Valley Hospital (“AVHD”), Antelope Valley Cremation Service (“AVCS”), and Halley Olsen Murphy (“Murphy” and collectively “Defendants”) undertook and agreed to provide funeral-related services, and to accomplish the cremation of the remains of Decedent Francisco Avila (“Decedent”) for the benefit of Plaintiffs; however, at some point in time between January 09, 2021 to January 23, 2021, Defendants mishandled Decedent’s remains by releasing Decedent’s body to an unauthorized funeral home, Doe 1, whereby decedent’s body was embalmed and presented to a stranger’s family for funeral services. Plaintiffs allege they were made aware of this mishandling when on or about January 24, 2023, an agent named Joey advised them that there was a “mix up” with Decedent’s body and that Decedent’s body was transported to an unknown location and that they were in the process of trying to locate the body for identification.

On November 05, 2021, Plaintiffs filed their Complaint alleging one cause of action for Negligence.

On January 21, 2021, Plaintiffs filed their First Amended Complaint (“FAC”), clarifying the Negligence causes of actions against each defendant. Specifically, the FAC includes one cause of action for Negligence against AVCS and Murphey and a second cause of action for Negligence against AVHD.

On October 06, 2022, Plaintiffs amended the fictitious name of Doe 1 to Perez Family Funeral Home and the fictitious name of Doe 2 Art Mortuary Transport, Inc. Both Perez Family Funeral Home and Art Mortuary Transport are included in each Negligence cause of action.

On November 21, 2022, Perez Family Funeral Home filed its Answer to the Complaint and a Cross-Complaint alleging three causes of action for Contribution, Indemnity, and Declaratory Relief against AVHD.

On September 09, 2023, the parties entered a stipulation regarding the filing of a Second Amended Complaint (“SAC”).

On October 13, 2023, AVHD filed this Motion to Compel Defendant Perez Family Funeral Home’s Further Response to Request for Production (“RFP”) No. 28 (“Motion to Compel Further”).

On October 18, 2023, Plaintiffs filed their SAC alleging three causes of action for: (1) Negligence against AVCS and Murphy; (2) Negligence against AVHD; and (3) Negligence – Res Ipsa Loquitur against AVHD. It appears that Perez Family Funeral Home and Art Mortuary are still considered Does within the SAC and, as such, all causes of action are directed against them.

Standard for Compelling Further Responses – Under Cal. Code Civ. Proc. § 2030.300, a court may order a party to serve a further response to interrogatories when the court finds that any of the following apply:¿¿¿¿¿¿

1. An answer to a particular interrogatory is evasive or incomplete.¿¿¿¿¿¿

2. An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate.¿¿¿¿¿¿

3. An objection to an interrogatory is without merit or too general.¿¿¿¿¿¿¿

Meet and Confer Requirement¿– Before filing a motion to compel further, the moving party is required to meet and confer with the party to engage in a reasonable and good faith attempt at an informal resolution of each issue presented by the motion. (Cal. Code Civ. Proc. §§ Cal. Code Civ. Proc. § 2030.300(b), 2016.040.) The Court notes that this requirement has been met. (See Decl. Lauren E. Raya ¶¶ 4-9.)

Application – AVHD provides that Perez Family Funeral Home stated that it had responsive documents, but refused to produce them based on relevance and privacy concerns and an Informal Discovery Conference (“IDC”) was held in which the Court found the production should occur. AVHD presents that Perez Family Funeral Home’s Counsel stated that it would provide such documents should the Court find the production warranted at the IDC, but has failed to do so. Plaintiff provides an email from Perez Family Funeral Home’s counsel which reads, in relevant part:

Regarding the IDC that took place on Monday, August 28, 2023, we will produce amended responses for SROG 30, 36 and RFP 23. We ask that responses for these amended responses be due by September 15, 2023. We agree to provide a two week extension to your motion to compel further response deadline as well.

Regarding RFP 28, We propose producing redacted document which redact all personal information, such as addresses, phone numbers, SSN, DOB, and MRN. Please let us know if you are agreeable to this proposal. If you are not agreeable, we would to reach out to Mr. Campos’ family to inform them of the production request. If after a few weeks, they have no objections, we would produce the records.

Please let us know if you agree to the discovery response date of September 15, 2023 and whether you will accept redacted documents for RFP 28.

AVHD presents that it has not been informed of any objections and argues that, regardless of objections, the records are discoverable. AVHD further argues that such documents are imperative to see all documents related to Campos and the process for identifying human remains in order to determine how misidentification of Decedent’s remains occurred when Perez was only contracted for services for Campos, the crux of this case is how and when the misidentification occurred, and Cal. Code Civ. Proc. § 2031.010(b) requires the documents be produced.

Perez Family Funeral Home argues that the Campos family is not a party to this action and should not be forced to disclose their private information. Perez Family Funeral Home emphasizes that the RFA requires disclosure of medical records. Perez Family Funeral Home further argues that it is regulated by both the State of California and federal laws governing industry and consumer privacy. Perez Family Funeral Home does not directly site laws but directs the Court to its declaration where it states that federal regulations by the Federal Trade Commission (“FTC”), the California Consumer Privacy Act, and the California Constitution apply. Thus, Perez Family Funeral Home argues that a legally protected privacy interest is present as Mr. Campos, deceased, has a privacy interest in his medical records with information related to his hospitalization and cause of death and his family members have a recognized right to privacy in their consumer information and contact information that has been collected as part of these services. For the same reasons, Perez Family Funeral home emphasizes that the relationship between a funeral home and its clientele cerates a relationship of trust which necessarily includes reasonable expectation of privacy. Lastly, Perez Family Funeral Home argues that the Campos family did nothing to justify a disclosure of their privacy information and expressed a desire not to allow this information to be disclosed and, as such, there is a threat of serious intrusion.

On Reply, AVHD argues: (1) being faultless is not a proper meaning for withholding documents; (2) the right to privacy is balancing act under the Alch v. Superior Court (2008) 165 Cal.App.4th 1412 (“Alch”); (3) Perez Family Funeral Home has conceded that most of the medical records and contact information have already been disclosed throughout the course of this litigation, citing the declaration of Robert Perez at paragraph 14 [“Most of these documents are already in the possession of Antelope Valley Healthcare or have been disclosed by other parties in this action”]; and (4) medical records and contact information are secondary to the information that is sought through RFP No. 28.

All DOCUMENTS RELATED TO the identification of human remains, including forms and/or worksheets, specific to Jose David Campos.

It appears at issue are documents that Perez Family Funeral Home has in its possession and such documents relate to Jose David Campos, a non-party.

Though unaddressed by both parties, the Court notes that there is case precedent which states: “the right [of privacy] does not survive but dies with the person.” (See Hendrickson v. California Newspapers, Inc. (1975) 48 Cal.App.3d 59, 62; Flynn v. Higham (1983) 149 Cal.App.3d 677, 683.) Furthermore, survivors generally do not have a right to privacy in their deceased relative’s activities. (See ibid.) Nevertheless, California courts have recognized a narrow exception for “death images,” under which the family members of a decedent do have a privacy interest in the death images of their deceased relative. (See Catsouras v. Dept, of California Highway Patrol (2010) 181 Cal.App.4th 856, 874 [discussing “impact of death images on the living” and concluding, under persuasive authority, “family members do have their own privacy rights in death images” of a loved one].) However, death images are not at issue for this motion.

Objection, irrelevant and not likely to lead to the discovery of admissible evidence and violative of privacy rights to the extent this inspection demand seeks information about anyone other than responding party. Further, to the extent this inspection demand seeks a document from a nonparty, the demand is further objectionable because it seeks to obtain non-party documents from a party, in violation of Code of Civil Procedure section 2031.010, subds. (a)-(e).

In response to Request for Production of Documents No. 28, it requests all documents related to the identification of human remains specific to Jose David Campos. Propounding Party has failed to meet its burden to show that it has a compelling need for the private, confidential information, that such information is directly relevant and that its need for the information outweighs non-party’s rights to privacy, and that such information could not be obtained through a less intrusive method of discovery. Any medical records or personal information related to Jose David Campos is protected from disclosure by privacy rights. Mr. Campos or his family are not parties to this action and therefore, the requested documentation is protected by privacy rights. Propounding Party addresses the same privacy issues in its own responses to Request for Production of Documents related to requests asking for documents pertaining to Mr. Avila and should understand the privacy issues in this request.

Regarding objections to the records, the Court believes that this assertion from Perez Family Home may stem from Cal. Code Civ. Proc. §1985.3. Cal. Code Civ. Proc. § 1985.3 reads, in relevant part:

“Personal records” means the original, any copy of books, documents, other writings, or electronically stored information pertaining to a consumer and which are maintained by any “witness” which is a physician, dentist, ophthalmologist, optometrist, chiropractor, physical therapist, acupuncturist, podiatrist, veterinarian, veterinary hospital, veterinary clinic, pharmacist, pharmacy, hospital, medical center, clinic, radiology or MRI center, clinical or diagnostic laboratory, state or national bank, state or federal association (as defined in Section 5102 of the Financial Code), state or federal credit union, trust company, anyone authorized by this state to make or arrange loans that are secured by real property, security brokerage firm, insurance company, title insurance company, underwritten title company, escrow agent licensed pursuant to Division 6 (commencing with Section 17000) of the Financial Code or exempt from licensure pursuant to Section 17006 of the Financial Code, attorney, accountant, institution of the Farm Credit System, as specified in Section 2002 of Title 12 of the United States Code, or telephone corporation which is a public utility, as defined in Section 216 of the Public Utilities Code, or psychotherapist, as defined in Section 1010 of the Evidence Code, or a private or public preschool, elementary school, secondary school, or postsecondary school as described in Section 76244 of the Education Code.

As to Jose David Campos’ family’s information, the Court applies the balancing test in Alch, also used in Perez Family Home’s Opposition (though not cited): (1) the privacy claimant must possess a legally protected privacy interest, of which there are two general types, autonomy privacy (the interest in making intimate personal decisions or conducting personal activities without observation, intrusion or interference) and informational privacy; (2) the privacy claimant must have a reasonable expectation of privacy under the specific circumstances, including “ ‘customs, practices, and physical settings surrounding particular activities [which] may create or inhibit reasonable expectations of privacy[;]’ ” and (3) actionable invasions of privacy “ ‘must be sufficiently serious in their nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right.’ ”. (Alch, supra, 165 Cal.App.4th 1412.) It is clear that there is a legally protected privacy interest and legitimate expectation of privacy in contact information and the Campos family has objected. (See Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360 [third party contact information—name, address, and phone number—may appropriately be given to civil litigants when the third parties are given an opportunity to object to the disclosure of their contact information].) Alch addressed this issue. In Alch, the individuals whose information was sought objected and the Court applied the balancing test. (See Alch, supra, 165 Cal.App.4th 1412 [generally].) However, unlike Alch, as Robert Perez concedes, most of these documents are already in AVHD’s possession. (See Decl. Robert Perez ¶ 14.) Perez Family Funeral Home does not disclose which documents remain at issue. It appears, based on the evidence presented, that there is no seriousness of invasion as most of the documents which contain the Campos’ family’s information have been disclosed. No discussion of opposing interests is required when the Court concludes there is no serious invasion of privacy. (See Pioneer, supra, 40 Cal.4th at 373.)

AVHD requests sanctions under Cal. Code Civ. Proc. § 2023.030 as it believes that Perez Family Funeral Home has engaged in a misuse of discovery as its counsel’s objections were without merit. AVHD requests sanctions in the amount of $2,655.00 [9 hrs @ $295.00/hr].

Perez Family Funeral Home argues that sanctions are unjust because they acted with substantial justification in asserting a privacy objection as the Campos family objected to disclosure.

AVHD, in Reply, argues that sanctions are just because Perez Family Funeral misled AVHD and its counsel about its willingness to produce such documents as (1) Perez Family Funeral Home’s counsel indicated that, should the IDC indicate such documents be produced, such documents would be turned over (see Reply, Decl. Lauren E. Raya ¶ 3, Exh. E); (2) after the IDC indicated that such documents would be produced, counsel for Perez Family Funeral Home indicated that they would produce redacted documents and reach out to the Campos Family for approval for the production of the documents in their entirety (See id., Decl. Lauren E. Raya at ¶ 4, Exh. G); and (3) Perez Family Funeral Home now takes the stance that no documents will produced without a court order (See id., Decl. Lauren E. Raya ¶ 5; Perez Opp. 5:22-25.) AVHD argues that this was not only a misuse of the discovery process, but also a blatant disregard of meet and confer attempts that were made.

Cal. Code Civ. Proc. § 2030.300(d) provides: “The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

The Court imposes a sanction of $1,000.00 on Perez Family Funeral Home and its counsel of record, Angela Boiadjian, jointly and severally under Cal. Code Civ. Proc. § 2030.300(d).

Defendant Antelope Valley Healthcare District dba Antelope Valley Hospital’s Motion to Motion to Compel Defendant Perez Family Funeral Home’s Further Response to Request for Production No. 28 is GRANTED.

The Court imposes a sanction of $1,000.00 on Perez Family Funeral Home and its counsel of record, Angela Boiadjian, jointly and severally under Cal. Code Civ. Proc. § 2030.300(d).

[1] Plaintiffs Marycruz Avila and Joanna Avila share the same surname. The Court addresses each individually by their first name for the purpose of clarity. No disrespect is meant.