Judge: Teresa A. Beaudet, Case: 23STCV26393, Date: 2025-03-13 Tentative Ruling

Case Number: 23STCV26393    Hearing Date: March 13, 2025    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Kimberly Aboltin (“Plaintiff”) filed this action against Defendant CEPM, Inc. (“Defendant”) on October 23, 2023, alleging a cause of action for wrongful termination in violation of public policy. The complaint alleges that from March 7, 2019 to November 1, 2022, Plaintiff was employed as Resident Manager of Chateau Laurier, a multi-unit apartment building located at 4353 West Fifth Street, Los Angeles, 90020, in Los Angeles County, California. Plaintiff alleges that Defendant’s notice of termination for Plaintiff’s employment states a pretext for why she was being terminated – that Defendant wanted a Resident Manager who “had the ability to fix maintenance issues themselves.” The complaint alleges that during Plaintiff’s employment she reported numerous and grave concerns with the Property to the Management team including, an exploded boiler blowing poisonous gases, fire safety equipment problems, improperly installed appliances leaking methane, unsecure door locks, broken and rotten windows, evidence of toxic mold, interior and exterior water leaks, plumbing code violations, putrid smells wafting through the halls, mail theft by an intruder, and more. Given the severity of these matters to the health and safety of the buildings’ residents – approximately 35 persons and their pets --– Plaintiff thought they were likely violations of law in need of urgent correction and often reported them to Defendant’s Property Manager. Thus, the complaint alleges that Defendant terminated Plaintiff’s employment because she reported the unsafe conditions that violated the law.

Plaintiff now moves to quash a deposition subpoena for production of business records to therapist Karen Malbon. Defendant moves to compel compliance with the subpoena. Each party opposes.

Request for Judicial Notice

The Court grants Defendant’s Request for Judicial Notice.

Discussion

Code of Civil Procedure section 1987.1, subdivision (a) provides:

“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.”

On April 10, 2024, Defendant served a Deposition Subpoena for Production of Business Records on therapist Karen Malbon, with a corresponding Notice to Consumer to Plaintiff’s counsel. (Ribas Decl., Ex. A.) The subpoena’s date of production is listed as May 9, 2024. (Id.)

Defendant’s subpoena directs Malbon to produce:
“1. All DOCUMENTS that constitute, evidence, memorialize, or refer to any services or consultations YOU provided to Aboltin from January 1, 2020 to the present, including, without limitation, medical records and notes, evaluations, therapeutic plans, office records and notes, prescription records, consultation notes, notes regarding referrals to other medical providers, and laboratory records and reports.

2. All test results in any format relating to any evaluations YOU provided ABOLTIN from January 1, 2020 to the present.

3. All DOCUMENTS that constitute, refer to, or memorialize any COMMUNICATIONS YOU have had with any third party, including, without limitation, ABOLTIN’s attorneys, regarding care or tests YOU performed on ABOLTIN from January 1, 2020 to the present.

4. All forms, letters, statements or other writings completed or created by YOU related to ABOLTIN.

5. All DOCUMENTS set [sic] to or provided to YOU by ABOLTIN or anyone acting on ABOLTIN’s behalf.

6. All DOCUMENTS of any type or test results or reports, sent to or provided to YOU by any third party, including, without limitation, ABOLTIN’s attorneys, regarding ABOLTIN.

7. All billing invoices for any services or consultations YOU provided to ABOLTIN from January 1, 2020 to the present.

            Plaintiff’s Motion to Quash

Plaintiff argues that the subpoena: (1) violates Plaintiff’s constitutionally protected right of privacy; (2) seeks personal and protected medical records, irrelevant to the instant litigation; and (3) the subpoena is overbroad in that it seeks information not likely to lead to the discovery of admissible evidence because it would be more prejudicial than probative.

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 (Britt).) Plaintiff has a right to privacy with respect to her medical records. (See Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1019.)

Under Hill v. Nat'l Collegiate Athletic Assn. (1994) 7 Cal. 4th 1, 35-37, the 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.) The party seeking the information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations. (Id. at 37–40.) 

Here, Plaintiff has raised a legally protected privacy interest in her medical records.  However, Plaintiff does not have a reasonable expectation of privacy where, as here, she has put her emotional/mental injuries at issue in this case by filing a lawsuit against Defendant, and thereby waived that right to privacy in this respect. (See Vinson v. Superior Court (1987) 43 Cal.3d 833, 839 (concluding that plaintiff placed own mental state in controversy by alleging mental and emotional distress and that plaintiff had waived her right to privacy in this respect by alleging continuing mental ailments).) However, the subpoenas seeking Plaintiff’s entire medical records is overbroad and would violate Plaintiff’s privacy interests in her records she has not put at issue. In turn, she does maintain a reasonable expectation of privacy in those other records. For example, if the medical records in the possession of therapist Malbon include records of medical procedures and treatment that have nothing to do with Plaintiff’s emotional distress, such records need not be produced.  However, if other situations, such as early childhood trauma, have been considered by therapist Malbon in diagnosing and treating Plaintiff’s emotional distress, then such records must be produced. In Britt, supra, 20 Cal.3d at 864, n. 9, the California Supreme Court held that the defendant would be entitled to explore all of Plaintiff’s mental records, even if some involved other sources for the injury:

“[I]nsofar as a number of injuries or illnesses, some related and some unrelated to the airport operations, have contributed to a medical condition placed in issue by a plaintiff, defendant is entitled to obtain information as to all such injuries or illnesses.  Thus, for example, if a plaintiff claims that the airport operations have damaged his respiratory system, plaintiff would be obliged to disclose all medical information relating to his respiratory condition and could not limit discovery simply to those airport-related incidents which have allegedly impaired his condition.” 

Thus, the subpoena will be limited to seek Plaintiff’s medical records relating to her emotional distress injuries but not other medical conditions that have not been considered by therapist Malbon but may be in her records.

Lastly, Plaintiff argues if any records are ordered to be produced, Plaintiff requests such production be made per the terms of an amended protective order, limited to “attorney eyes only” and disclosed healthcare consultant(s), not including the attorney’s client which is a corporation. The Court agrees with this request at this stage of the litigation. The issue may have to be revisited if the matter goes to trial. For discovery purposes, Plaintiff’s request for an attorney and healthcare consultant’s eyes only limitation is granted.

Request for Sanctions

Code of Civil Procedure section 1987.2, subdivision (a) provides that “in 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.”

The Court does not find that the motion was made in bad faith or without substantial justifications. Defendant’s request for sanctions is therefore denied.

Defendant’s Motion to Compel Compliance

As to the same subpoena above, using the Notice to Consumer, Ms. Malbon objected on the basis of the patient-therapist privilege. (Ganchrow Decl., ¶ 4; Exh. 4.)

“Under sections 990 et seq. and 1010 et seq. of the Evidence Code, a patient enjoys a privilege to refuse to disclose any "confidential communication" between himself and a treating physician or psychotherapist . . . .  Sections 996 and 1016, however, establish an important exception to the general physician-patient and psychotherapist-patient privileges, the "patient-litigant" exception, providing in relevant part that ‘[there] is no privilege . . . as to a communication relevant to an issue concerning the condition of the patient if such issue has been tendered by . . . [the] patient.’ ”  (Britt v. Superior Court (1978) 20 Cal.3d 844, 862-863.) Thus, there is no privilege as to the emotional distress claims put at issue here in this lawsuit. The Court incorporates its discussion above in connection with Plaintiff’s motion to quash. The motion to compel is granted subject to the limitations set forth in the ruling on Plaintiff’s motion to quash.

Conclusion

As set forth above, Plaintiff’s motion to quash is granted in part and Defendant’s motion to compel compliance is granted in part.  No sanctions are awarded.

Plaintiff is ordered to provide notice of this ruling.

DATED:  March 13, 2025                              ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court