Judge: Theresa M. Traber, Case: 19STCV44842, Date: 2022-08-22 Tentative Ruling

Case Number: 19STCV44842    Hearing Date: August 22, 2022    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     August 22, 2022                     TRIAL DATE: December 6, 2022

CASE:                         Ophir Gottlieb, et al. v. Pacific 2110 Bentley, LP, et al.

CASE NO.:                 19STCV44842           

MOTION TO COMPEL PRODUCTION OF DOCUMENTS IN COMPLIANCE WITH THIRD-PARTY DEPOSITION SUBPOENA

MOVING PARTY:               Defendants Pacific 2110 Bentley, LP and Pacific Apartments Corp.

RESPONDING PARTY(S): Plaintiffs Ophir Gottlieb and Alicia Newman

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action for breach of a rental lease agreement. Plaintiffs alleges physical, emotional, and mental injuries arising from numerous and serious habitability defects in the property rented by Plaintiffs from Defendants.

Defendants move to compel production of records from Dr. Lawrence S. Cohen in compliance with a third-party deposition subpoena.

TENTATIVE RULING:

Defendants’ Motion to Compel Compliance with the Deposition Subpoena is GRANTED.

            Plaintiff’s request for sanctions is DENIED.

            Dr. Cohen is ordered to produce all documents responsive to the requests in the deposition subpoena within 30 days of the date of this order.

DISCUSSION:

            Defendants move to compel non-party witness Dr. Lawrence S. Cohen to produce records pursuant to a deposition subpoena.

Legal Standard

            Code of Civil Procedure section 1987.1(a) states, in relevant part:

If a subpoena requires the attendance of a witness or the production of books, documents, 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 . . . may make an order . . .  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.

(Code Civ. Proc. § 1987.1(a).) There is no meet and confer requirement in section 1987.1. There is also no requirement for a separate statement when no response has been provided to the request for discovery. (Cal. Rules of Court Rule 3.1345(b)(1).) Further, there is no requirement for a showing of good cause for production of documents in connection with a deposition subpoena. (Code Civ. Proc. § 2020.510(b); Terry v. SLICO (2009) 175 Cal.App.4th 352, 358.)

Failure to Respond

            The Declaration of Jesse M. Maxwell in support of the motion states that Dr. Lawrence S. Cohen was served with the deposition subpoena on July 7, 2021. (Declaration of Jesse M. Maxwell ISO Mot.) The attached copy of the subpoena does not include a completed proof of service showing that the subpoena was served on that date. (Maxwell Decl. Exh. 1. p. 2.) However, neither counsel for the nonparty witness nor Plaintiff contest service of the deposition subpoena on that date. (See, generally, Declaration of Pamela B. Shafer; Opposition.) Plaintiff did not object to the subpoena, nor did Plaintiff move to quash or modify the subpoena. (Maxwell Decl. ¶¶ 15-16.) Dr. Cohen stated that he will not produce Plaintiff’s treatment records without an order from the Court. (Id. ¶ 17.)

Plaintiffs’ Opposition

            Plaintiffs oppose this motion on the grounds that the documents sought are an improper intrusion on Plaintiff Gottlieb’s privacy.

In ruling on a privacy objection in the context of discovery, the party asserting a privacy right must establish a legally protected privacy interest. (Williams v. Superior Court (2017) 3 Cal.5th 531, 552.) The party asserting a privacy right must also establish an objectively reasonable expectation of privacy in the given circumstances. (Id.) Further, the party asserting a privacy right must establish a threatened intrusion that is serious. (Id.) The Court need not proceed to the fourth step of balancing competing interests if all three of the above are not satisfied. (Id. at 555.)

If the Court reaches the fourth step, the Court must balance these competing considerations: The party seeking information may raise whatever legitimate and important countervailing interests disclosure may serve. (Id. at 552.) The party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. (Id.) Courts may not require the party seeking discovery to demonstrate a “compelling need” simply because discovery of any facially private information is sought. (Id. at 556-557.) When a privacy interest is asserted, the party seeking production must show that the information sought is directly relevant to a cause of action or a defense. (Harris v. Superior Court (Smets) (1992) 3 Cal.App.4th 661, 665, citing Britt v. Superior Court (1978) 20 Cal.3d 844, 859-62.)

            In opposition, Plaintiffs improperly argue that Defendants must demonstrate a compelling need for discovery of private documents. However, as Defendants state in reply, that requirement, as articulated in Lantz v. Superior Court (1994) 28 Cal.App.4th 1839, 1853, was overruled by the California Supreme Court in 2017. (Williams, supra, 3 Cal. 5th at 557.) The burden therefore rests on Plaintiffs to demonstrate a legally protected privacy interest, an objectively reasonable expectation of privacy under the circumstances, and a serious threatened intrusion.

            Plaintiffs contend that the documents sought are protected under the psychotherapist-patient privilege and the physician-patient privilege, and under statute as a patient’s medical records. (Evid. Code § 1014 [psychotherapist-patient privilege]; Board of Med. Quality Assurance v. Gherardini (1979) 93.Cal.App.3d 669, 679 [medical records privileged].) Plaintiff does not directly show that the threatened intrusion is serious, but the requested production of Plaintiff Gottlieb’s entire medical and psychiatric record is, on its face, sufficient to demonstrate a serious threatened intrusion without further showing from the Plaintiff. (See Maxwell Decl. Exh. 1 p.3.)

Plaintiffs make no argument and offer no evidence showing that there is an objectively reasonable expectation of privacy under the current circumstances. Even if the Court were to construe Plaintiffs’ argument that the documents sought are not relevant as an argument of a reasonable expectation of privacy, based on Plaintiffs’ contention that this is a “garden variety” emotional distress claim, that argument would not prevail. When a litigant has placed his or her mental or emotional condition at issue in litigation, the psychotherapist or physician-patient litigation exception does not apply. (Roberts v. Superior Court (1973) 9 Cal.3d 330, 337.) It is true, as Plaintiff states in opposition, that the patient/litigant exception is narrowly construed and putting one’s mental state at issue does not eradicate all a patient’s privacy interests. (San Diego Trolley v. Superior Court (2001) 87 Cal.App.4th, 1083, 1093.) The patient/litigant exception does not permit disclosure of medical records regarding injuries that are not related to injuries claimed in the lawsuit. (See Davis v. Superior Court (1993) 7 Cal.App.4th 1008, 1018.)

Here, however, Plaintiff Gottlieb has directly placed his emotional distress and injuries related to that emotional distress at issue by asserting a cause of action for Intentional infliction of Emotional Distress. Further, unlike the proponent in Davis v. Superior Court, on which Plaintiff relies (in which the Court of Appeal applied the Lantz standard overruled in Williams), Defendants are not seeking medical records that are unrelated to injuries connected to those claimed in the lawsuit. In deposition, Plaintiff Gottlieb stated that he attributed his injuries, including his multiple sclerosis symptoms, to the incidents alleged in the Complaint. (Maxwell Decl. Exh. 3. pp. 46:20-48:25.)  Indeed, as Defendants argue, Plaintiff Gottlieb contends that his exposure to mold gave rise to a neurological condition, that is, multiple sclerosis, which in turn produced severe anxiety and depression.  Plaintiff Gottlieb cannot claim that evidence related to his mental state and treatment for his multiple sclerosis is not relevant when he directly made it so with sworn deposition testimony.

The Court therefore finds that Plaintiffs have not shown that there is an objectively reasonable expectation of privacy under the circumstances. The Court therefore does not reach the issue of balancing competing interests. Accordingly, the Court concludes that Dr. Cohen’s responses to the requests for production must be compelled.

Stay Pending Hearing on Protective Order

            Plaintiffs request that the Court stay this matter pending a hearing on the August 6, 2022 Motion for Protective Order filed by Plaintiff. A preliminary review of the moving papers in that motion shows that the arguments in the papers for that motion are identical to those raised in opposition to this motion, which has been fully briefed by both parties. The Court therefore declines to exercise its inherent power to stay the hearing on this matter until ruling on the protective order.  Instead, based on the Court’s ruling on the motion to compel, the Court advances and vacates the hearing on the motion for protective order and denies it as moot.

Sanctions

            Plaintiffs also request sanctions against Defendants in the amount of $3,248.50 for misuse of the discovery process. Plaintiffs have not noticed this request in the Notice of Opposition. Further, Plaintiffs base this request on a purported withdrawal of the claim that the incidents in the Complaint caused psychological injury and attendant emotional distress. However, Plaintiffs offer no evidence of any such withdrawal, have not requested leave to amend the Complaint to effect any modification of the allegations in the Complaint, and have not filed any request for dismissal as to any part of the action. The Court therefore finds that sanctions are not warranted under Code of Civil Procedure sections 2023.010 and 2023.030. Plaintiff’s request for sanctions is therefore DENIED.

CONCLUSION:

            Accordingly, Defendants’ Motion to Compel Compliance with the Deposition Subpoena is GRANTED.

            Plaintiff’s request for sanctions is DENIED.

            Dr. Cohen is ordered to produce all documents responsive to the requests in the deposition subpoena within 30 days of the date of this order.

            Moving Parties to give notice.

IT IS SO ORDERED.

Dated: August 22, 2022                                  ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.