Judge William A. Crowfoot, Case Number: 20STCV19634, Date: 2023-05-24 Tentative Ruling

Judge: William A. Crowfoot, Case: 20STCV19634, Date: 2023-05-24 Tentative Ruling

Defendant Dedicato Treatment Center, Inc. (“Defendant”) moves for an order compelling non-party Michael Farinha, M.A., Psy.D (“Dr. Farinha”) to comply with a subpoena issued on January 6, 2023 (the “Subpoena”). The Subpoena requests Plaintiff Linda Jean Pawlik’s (“Plaintiff”) medical and billing records from January 1, 2008, to the present. Neither Plaintiff nor Dr. Farinha served objections or filed an opposition brief.

Confidential communications between psychotherapist and patient during the professional relationship are privileged. (Evid. Code, § 1010 et seq.) But when a plaintiff puts her health and physical condition at issue, the privacy and privileges that normally attach to such sensitive information are “substantially lowered by the very nature of the action.” (Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal.4th 30, 43.)

Generally, when determining the scope of discovery, the burden is on the party seeking the constitutionally protected information to establish direct relevance. (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1017.) With respect to the psychotherapist-patient privilege, however, “[b]ecause only the patient, and not the party seeking disclosure, knows both the nature of the ailments for which recovery is sought and the general content of the psychotherapeutic communications, the burden rests upon the patient initially to submit some showing that a given confidential communication is not directly related to the issue he has tendered to the court. A patient may have to delimit his claimed "mental or emotional distress" or explain, in general terms, the object of the psychotherapy in order to illustrate that it is not reasonably probable that the psychotherapeutic communications sought are directly relevant to the mental condition that he has placed in issue.” (In re Lifschultz (1970) 2 Cal.3d 415, 436-437.)

Here, the motion is unopposed and Plaintiff, who has undoubtedly placed her mental condition at issue in this litigation, has not met her burden to show that the records from Dr. Farinha’s office are not “directly related.” Therefore, the motion to compel compliance is GRANTED.

Defendant requests its reasonable attorney’s fees under CCP 1987.2 against Plaintiff and/or her attorney, Michael Anderson, in the amount of $4,408 because they directed Dr. Farinha not to comply with the Subpoena, yet failed to serve an objection, file a motion to quash, or respond to defense counsel’s attempts to meet and confer. Section 1987.2 allows a court in its discretion to “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.” Here, the motion was not opposed, therefore, section 1987.2 does not permit the Court to award Defendant its attorney’s fees incurred in filing this motion. Defendant’s request for sanctions is DENIED.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.