Judge Steven A. Ellis, Case Number: 19STCV35626, Date: 2024-01-11 Tentative Ruling

The Court GRANTS Plaintiff’s Motion to Quash the subpoenas directed to Psychiatric Alternatives and Wellness Center, Psychiatric Treatment Centers of California, Sally Lijedahl, and Kristina Whittig.

The Court MODIFIES the subpoena directed to CVS Pharmacy and, as modified, otherwise DENIES Plaintiff’s Motion to Quash the subpoena.

On the motion to quash, the Court GRANTS in part Plaintiff’s request for sanctions.

This case arises out of an incident on October 17, 2018, in which Plaintiff Shelly Engel (“Plaintiff”) while attempting to enter West Ranch High School in Valencia, California, to attend a concert. In the operative complaint (the Third Amended Complaint), Plaintiff asserts causes of action for negligence and a dangerous condition of public property against Defendants William S. Hart Union High School District, West Ranch High School, and Does 1 through 100. Defendant William S. Hart Union High School District (“Defendant”) filed its Answer to the Third Amended Complaint on June 24, 2021.

First, with regard to the deposition of Donna Manfredi, an assistant principal at the time of the incident, Plaintiff took the deposition of Ms. Manfredi on January 17, 2023. (Shihady Decl., ¶ 17 & Exh. A.) Defendant’s counsel represented the witness and, during the course of the deposition, instructed the witness not to answer certain questions. On March 20, 2023, Plaintiff filed a motion to compel the witness to return for a second session of the deposition and answer the questions as to which the instruction was given. Plaintiff also seeks monetary sanctions. Defendant filed its opposition on December 28, and Plaintiff filed her reply on January 4.

Second, with regard to the subpoenas, on or about October 6, 2023, Defendant issued subpoenas for medical and billing records of Plaintiff, including to Psychiatric Alternatives and Wellness Center; Psychiatric Treatment Centers of California; Sally Liljedahl, LCSW; Dr. Kristina Whittig; and CVS Pharmacy (collectively, the “Subpoenas”). On November 15, 2023, Plaintiff moved to quash the Subpoenas. Plaintiff also seeks sanctions. Defendant filed its opposition on January 5, and Plaintiff filed her reply on January 11.

“If a deponent fails to answer any question … the party seeking discovery may move the court for an order compelling that answer.” (Code Civ. Proc., § 2025.480, subd. (a).) “If the court determines that the answer … is subject to discovery, it shall order that the answer be given … on the resumption of the deposition.

” (Id., subd. (i).)

“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 an answer …, 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.

In Chapter 7 of the Civil Discovery Act, Code of Civil Procedure section 2023.030, subdivision (a) provides, in pertinent part, that the court may impose a monetary sanction ordering that any person “engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” A “misuse of the discovery process” includes (among other things) failing to respond or to submit to an authorized method of discovery; making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to a discovery request; disobeying a court order to provide discovery; and making or opposing, unsuccessfully, a motion to compel without substantial justification. (Code Civ. Proc., § 2023.010, subds. (d)-(h).)

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), or upon the court's own motion after giving counsel notice and an opportunity to be heard, 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. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.

“[I]n making an order pursuant to motion made … 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, subd. (a).)

The California Constitution recognizes that all people have “inalienable rights,” including “pursuing and obtaining safety, happiness, and privacy.” (Cal. Const., art. 1, § 1.)

For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.) Generally, all unprivileged information that is relevant to the subject matter of the action is discoverable if it would itself be admissible evidence at trial or if it appears reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc. § 2017.010; Schnabel v. Superior Court (1993) 5 Cal.4th 704, 711.)

Ms. Donna Manfredi, an employee of Defendant, was deposed on January 17, 2023. Defendant’s counsel represented the deponent.

At the deposition, Plaintiff asked the deponent a commonly asked deposition question: did you meet with your attorney prior to the deposition. Defendant’s counsel objected on the grounds of attorney-client privilege and the work product doctrine and instructed the witness not to answer. The witness confirmed that she would not answer based upon her counsel’s instruction. Defendant’s counsel confirmed that he would instruct the witness not to answer any question regarding meeting with counsel.

Defendant’s instruction was improper. The fact of whether there was a meeting between counsel and a client is not, in this context, protected by the attorney-client privilege. Although the content of the communication is likely privileged, the basic foundational facts – including (for example) whether attorney and client met and, if so, when, where, for how long, whether anyone else was present, and if so, the identity of the other individuals present – are not. (See, e.g., State Farm Fire & Casualty Co. v. Super. Ct. (1997) 54 Cal.App.4th 625, 640 [stating that “the attorney-client privilege” does not “protect independent facts related to a communication; that a communication took place, and the time, date and participants in the communication”].)

Foundational facts regarding a meeting between counsel and a client’s employee prior to a noticed deposition are also not protected by the work product doctrine. Such facts do not reveal counsel’s “impressions, conclusions, opinions, or legal research or theories.” (Code Civ. Proc., § 2018.030, subd. (a).) Nor do such facts reflect the attorney’s “industry and effort” such that disclosure would allow Plaintiff’s attorney to “tak[e] undue advantage of their adversary’s industry and efforts.” (Code Civ. Proc., § 2018.020, subd. (b); Coito v. Superior Court (2012) 54 Cal.4th 480, 501.) None of the cases cited by Defendant (Opp. at 5-6) support its position.

The Court also GRANTS Plaintiff’s request for sanctions. Defendant’s position was not substantially justified, and it would not be unjust to impose a sanction under these circumstances. As a result of Defendant’s misuse of the discovery process, Plaintiff incurred expenses, including attorney’s fees, in bringing this motion to compel. The Court awards sanctions in the requested amount of $1,050, calculated based upon 3 hours of attorney time (which is reasonable, and indeed conservative) multiplied by counsel’s reasonable billing rate of $350 per hour. (Shihady Decl., ¶ 4.)

In this action, Plaintiff claims extensive physical injuries. (Khoshnou Decl., Exh. A, at pp. 9-10.) She is not claiming emotional distress (beyond the general pain and suffering from her claimed physical injuries) or any urological injury. (Id., ¶ 2.)

Plaintiff challenges a total of five subpoenas. Three seek information about her mental health (subpoenas to Psychiatric Alternatives and Wellness Center; Psychiatric Treatment Centers of California; and Sally Liljedahl, LCSW); one seeks information about her urological health (to Dr. Kristina Whittig); and one seeks information regarding her medications generally (to CVS Pharmacy).

Plaintiff argues (among other things) that these subpoenas violate her right to privacy. California’s Constitutional right to privacy protects against the unwarranted, compelled disclosure of various private or sensitive information regarding one’s personal life.¿ (Britt v. Superior Court (1978)20 Cal.3d 844, 855-856.)¿¿This includes such things as medical records, employment records, and financial information.¿¿(John B. v. Super. Ct. (2006) 38 Cal.4th 1177, 1198 (medical records); Valley Bank of Nevada v. Super. Ct. (1975) 15 Cal.3d 652, 656 (financial records); l Dorado Savings & Loan Assn. v. Super. Ct. (1987) 190 Cal.App.3d 342, 345 (employment records); Board of Trustees v. Super. Ct. (1981) 119 Cal.App.3d 516, 526 (employment records).)

In Williams v. Superior Court (2017) 3 Cal.5th 531, Hill v. Nat'l Collegiate Athletic Assn. (1994) 7 Cal. 4th 1, and other cases, the California Supreme Court has established “a framework for evaluating potential invasions of privacy.” (Williams, supra, 3 Cal.5th at p. 552.) First, a party asserting a privacy right must establish “a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious.” (Id., citing Hill, supra, 7 Cal.4th at pp. 35-37.) In response, the party seeking the information may raise “whatever legitimate and important countervailing interests disclosure serves,” and “the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy.” (Id., citing Hill, supra, 7 Cal.4th at pp. 37-40.) The court must then “balance these competing considerations.” (Ibid.) The party seeking the information need not, however, establish a “compelling interest” unless the disclosure would be “an obvious invasion of an interest fundamental to personal autonomy.” (Id. at p. 556.)

Under the Williams and Hill framework, Plaintiff here must first establish a legally protected privacy interest and a reasonable expectation of privacy. Plaintiff has done so. The medical records covered by the Subpoenas are protected by the right to privacy, and Plaintiff has an objectively reasonable expectation of privacy in these records.

Next, the Subpoenas appear on their face to be a serious intrusion into Plaintiff’s right to privacy. Information regarding mental health care, urological health, and medications are private, personal, and sensitive.

At this point, under Williams and Hill, Defendant must identify the “legitimate and important countervailing interests” that disclosure would serve. For example, Defendant may attempt to show that the discovery sought in the Subpoenas is “directly relevant” to the claims or defenses in dispute and is “essential to the fair resolution of the lawsuit.” (Lantz v. Super. Ct. (1994) 28 Cal.App.4th 1839, 1854.)

With regard to four of the five Subpoenas, Defendant has not done so. Information regarding Plaintiff’s mental and urological health is not, for example, directly relevant to the claims in dispute or essential to fair resolution of this lawsuit.

As to the fifth subpoena, to CVS regarding Plaintiff’s medications, Defendant has made this showing in part. On this record, including Plaintiff’s deposition testimony and her inability to recall certain matters, Defendant has a legitimate interest in the subpoenaed information.

Plaintiff has not identified any feasible alternatives that would serve the same interests and diminish the loss of privacy. The parties agree to limit the subpoena to the period of 10 years prior to the incident to the present. (Mot., at p. 6; Opp., at p. 4.)

Finally, under the framework set out in Hill and reaffirmed in Williams, the Court must balance the “competing considerations” of the serious intrusion into Plaintiff’s privacy and Defendant’s legitimate need for the information. This balancing of competing considerations is necessarily a difficult and delicate task, and it is particularly challenging here as the Court does not know what the subpoenaed records will reveal. Nonetheless, the Court must and will conduct the balancing based on the information before it in the record.

On balance, and after considering all of the evidence in the record and the arguments of both sides, the Court finds that Defendant’s legitimate interest in obtaining the records subpoenaed from CVS, for the period of October 17, 2008 to the present, outweighs Plaintiff’s substantial privacy interest. Accordingly, the Court will limit the time period of the CVS subpoena and, as limited, DENY the motion to quash that subpoena.

Finally, the Court also GRANTS in part Plaintiff’s request for sanctions. As to four of the subpoenas – to Plaintiff’s mental and urological health providers – these subpoenas were oppressive, and Defendant opposed the motion to quash without substantial justification. The Court awards sanctions in the amount of $1,061.65, calculated based on 2.5 hours of attorney time, multiplied by counsel’s reasonable billing rate of $400 per hour, plus a filing fee of $61.65. (Khoshnou Decl., ¶ 10.)

The Court ORDERS Ms. Donna Manfredi to appear for a second session of her deposition and answer basic foundational questions relating to her meeting with counsel prior to the deposition, such as whether such a meeting occurred, and, if so, when, where, for how long, whether anyone else was present, and if so, the identity of the other individuals present. The deposition must occur on a date to be noticed by Plaintiff’s counsel within 30 days of notice of this ruling.

The Court ORDERS Defendant and counsel of record Carpenter, Rothans & Dumont, jointly and severally, to pay monetary sanctions under the Civil Discovery Act to Plaintiff in the amount of $1,050, within 30 days of notice of this ruling.

The Court MODIFIES the subpoena directed to CVS Pharmacy to be limited to the period of October 17, 2008 to the present. With this modification, the Court otherwise DENIES Plaintiff’s Motion to Quash the subpoena to CVS Pharmacy.

On the motion to quash, the Court GRANTS in part Plaintiff’s request for sanctions.

The Court ORDERS Defendant and counsel of record Carpenter, Rothans & Dumont, jointly and severally, to pay monetary sanctions under Code of Civil Procedure section 1987.2 to Plaintiff in the amount of $1,061.65, within 30 days of notice of this ruling.