Judge: Stephen P. Pfahler, Case: 20STCV44865, Date: 2023-12-04 Tentative Ruling

Case Number: 20STCV44865    Hearing Date: December 26, 2023    Dept: F49

Dept. F-49

Date: 12-26-23 c/f 11-29-23 a/f 1-24-24

Case #20STCV44865

Trial Date: 4-22-24 c/f 2-5-24

DEPOSITION SUBPOENA

MOVING PARTY: Defendants, Saugus Union High School District, et al.

RESPONDING PARTY: Unoppsed/Plaintiff, Solomon Perkins

RELIEF REQUESTED

Motion to Compel Compliance with a Deposition Subpoena

SUMMARY OF ACTION

On February 13, 2020, Plaintiff Solomon Perkins, a student at Tesoro Del Valle Elementary School, a school campus within the territory of Defendant Saugus Union School District (Saugus Union), was an enrolled student on campus, when a fellow classmate, “Tobin,” reported to a staff member on campus that Plaintiff was carrying a gun in his backpack. According to the complaint, Plaintiff told Tobin he had a “Nurf-Slingshot gun” with him, which led to the misrepresentation of an actual gun.

Plaintiff is a student with special needs and a learning disability. Plaintiff attends school with an individualized education plan (IEP), which requires the presence of a para-professional during instructional time. The para-professional was not present during the interactive period with Tobin.

Following the report, Plaintiff’s backpack was examined by school principal, defendant Gina Nolte. The search revealed no actual firearm or slingshot gun. Nolte subsequently contacted the Los Angeles County Sheriff, and the “mental health department.” According to the complaint, the mental health department “attempted to commit Plaintiff.”

Although Plaintiff’s mother, Thea Perkins, was apparently contacted and came to the school campus, prior to her arrival, the Sheriffs Department interrogated Plaintiff. No other adult acting on Plaintiff’s behalf was present. Upon Thea Perkins arriving at campus, both Plaintiff and his mother were involuntarily detained on the premises, until they were both escorted off the premises by armed deputies.

Following the incident, Thea Perkins demanded new and different resources be assigned to Plaintiff. The request was denied, and instead Defendant Saugus Union “disabled access on Plaintiff’s Chromebook,” which Plaintiff used for remote learning during the Covid school campus closure. Plaintiff has been cut-off from the school therapist and contact via other Google applications. On a personal level, para-professional services were also denied during remote learning, and Plaintiff was never sent any learning supplies associated with remote learning.

Plaintiff alleges a claim was submitted to Saugus Unified School District on May 28, 2020 and rejected. On November 23, 2020, Plaintiff filed a ten cause of action complaint for Negligence, Negligent Supervision, Training and/or Retention, Intentional Infliction of Emotional Distress, Violation of California Education Code sections 200, 201, 220 and 260, Violation of Equal Protection Clause of the California Constitution, False Imprisonment Violation of Americans with Disability Act, Violation of California Unruh Act, Violation of California Government Code section 1135, and Violation of 42 USC section 1983. Both Defendants are named in all causes of action.

On March 9, 2021, the action was transferred out of Department 28. On March 12, 2021, the action was assigned to Department 49. On July 12, 2021, the court denied the special motion to strike of Saugus Union High School District. On September 28, 2021, the court granted Plaintiff leave to file a later government claim.

On October 28, 2021, Plaintiff filed an eleven cause of action first amended complaint for Negligence, Negligent Supervision, Training and/or Retention, Intentional Infliction of Emotional Distress, Violation of California Education Code sections 200, 201, 220 and 260 – Discrimination on the Basis of Disability, Violation of Equal Protection Clause of the California Constitution, False Imprisonment, Violation of Americans with Disability Act, Violation of California Government Code section 11135 – Discrimination Based on Disability, Violation of 42 USC section 1983 – Violation of the Equal Protection Clause, Violation of 42 USC section 1983 – Deprivation of Civil Rights, and, Violation of 42 USC section 1983 –Monell Violations. Defendant Saugus Unified School District answered the first amended complaint on November 29, 2021. New counsel for Plaintiff substituted into the case on January 18, 2022.

On February 7, 2022, the court overruled the demurrer of Los Angeles County. Los Angeles County answered on February 17, 2022. On April 10, 2023, the case was reassigned to Department 51. On July 26, 2023, the case was reassigned to Department 47 following the recusal from Department 51, and then transferred back to Department 49.

RULING: Granted

Defendants Saugus Union High School District and Gina Nolte move to compel third party, Didi Hirsch Mental Health Services to comply with a deposition subpoena for psychiatric-psychological-counseling records of Solomon Perkins. The court electronic filing system shows no opposition or reply. Defendants filed a notice of non-opposition as well.

On April 27, 2023, Defendants served the deposition subpoena for production of business records. Defendants later presented a HIPPA authorization form to Thea Perkins allowing the release of the subject records, but the form was not signed. The motion was subsequently filed.

“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) ... may make an order … directing compliance with it upon those terms or conditions as the court shall declare...”

(Code Civ. Proc., § 1987.1, subd. (a).)

“[T]he mere filing of a lawsuit does not trigger application of the patient-litigant exception.” (Patterson v. Superior Court (1983) 147 Cal.App.3d 927, 930.) A patient may continue to exercise a reasonable expectation of privacy of their medical information if the information is not directly relevant to a particular condition the patient placed in issue. (California Consumer Health Care Council v. Kaiser Foundation Health Plan, Inc. (2006) 142 Cal.App.4th 21, 31.) “‘The patient thus is not obligated to sacrifice all privacy to seek redress for a specific mental or emotional injury; the scope of the inquiry permitted depends upon the nature of the injuries which the patient-litigant himself has brought before the court.’” (Britt v. Superior Court (1978) 20 Cal.3d 844, 864.) “‘The party seeking the constitutionally protected information has the burden of establishing that the information sought is directly relevant to the claims. [Citation.]’ [Citation.]”  (See Barrenda L. v. Superior Court (1998) 65 Cal. App. 4th 794, 801-802.) The standard for good cause requires the moving party to produce specific facts justifying discovery and that the inquiry be relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence. (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.) “[A]n implicit waiver of a party's constitutional rights encompasses only discovery directly relevant to the plaintiff's claim and essential to the fair resolution of the lawsuit… [¶] … On occasion her privacy interests may have to give way to her opponent's right to a fair trial. Thus courts must balance the right of civil litigants to discover relevant facts against the privacy interests of persons subject to discovery.” (Id. at p. 842.)

Solomon’s medical emotional medical state was placed in issue through the filing of the subject action and damages claim, thereby providing Defendants with the right to examine her medical history prior to the time of the incident(s). [Declaration of Dominic Quiller, Ex. A: Responses to Form Interrogatories.] It is presumed that at least some of the subject counseling records directly relate to the anguish caused by the underlying incidents. Plaintiff presents no opposition otherwise seeking to limit production or other privileges. (In re Lifschutz (1970) 2 Cal.3d 415, 439; Patterson v. Superior Court, supra, 147 Cal.App.3d at pp. 931-932; see Evid. Code, § 1016, subd. (a).)

The court finds no reasonable alternatives for discovery of the information exists. Defendants therefore present a basis for production of the records. The motion to compel compliance with the subpoena is therefore granted. Records are limited to production relating directly the subject action, but may include prior records for purposes of establishing noticeable changes following the course of events. Should Defendants still seek an independent medical examination upon review of the records, and the parties are unable to agree, the court will consider a special ex parte motion to advance the reserved motion to compel the IME currently set for April 24, 2024.

Plaintiff moves for $1,625 in sanctions if any opposition to the motion is filed. “[I]n making an order pursuant to motion made under subdivision (c) of Section 1987 or under Section 1987.1, the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney's fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” (Code Civ. Proc., § 1987.2.)

The request for sanctions itself was conditioned on the existence of any opposition. The purpose of the unopposed motion itself appears motivated by the need for a court order in order to release the records. The court therefore finds no basis for the imposition of sanctions.

Defendants to arrange for compliance and production of the subpoena within 30 days of the order.

Motion to Compel Compliance with Deposition Subpoena set for December 26, 2023. Jury trial also remains on calendar for April 22, 2024.