Case Name: Roger Glen Sonagere v. Nanjangud C. Savitha, et al.

Case No.: 2015-1-CV-284929

Defendant’s Motion to Compel Plaintiff’s to Provide Further Responses to Defendant’s Document Production Requests, Set 3 and Request to Impose Monetary Sanctions Jointly Against Plaintiff and Plaintiff’s Counsel

On or about September 26, 2014, a vehicle driven by defendant Savitha Nanjangud (erroneously sued as Nanjangud C. Savitha; hereafter, “Nanjangud”) collided with the motorcycle driven by plaintiff Roger Glen Sonagere (“Sonagere”) at or near Saratoga Los Gatos Road in Saratoga. (Complaint, ¶5.)

On August 27, 2015, plaintiff Sonagere filed a complaint against defendant Nanjangud asserting causes of action for: (1) Negligence; and (2) Fraudulent Conveyance.

On October 28, 2015, defendant Nanjangud filed a demurrer to the second cause of action in plaintiff Sonagere’s complaint. On December 11, 2015, the court (Hon. Stoelker) overruled defendant Nanjangud’s demurrer. On January 12, 2016, defendant Nanjangud filed an answer to the complaint.

On May 16, 2017, plaintiff Sonagere dismissed the second cause of action without prejudice.

Discovery Dispute

On March 24, 2017, defendant Nanjangud served plaintiff Sonagere with a request for production of documents (“RPD”), set three.

On April 18, 2017, plaintiff Sonagere served defendant Nanjangud with his responses to RPD, set three.

Unsatisfied with plaintiff Sonagere’s response to RPD, set three, defendant Nanjangud’s counsel sent a meet and confer letter to plaintiff Sonagere’s counsel on May 25, 2017. On May 31, 2017, plaintiff Sonagere’s counsel responded.

On June 2, 2017, defendant Nanjangud filed the motion now before the court, a motion to compel further response to RPD, set three, number three.

VI. Defendant Nanjangud’s motion to compel further response to RPD, set three, number 3 is GRANTED.

Upon receipt of a response to a demand for inspection, including requests for the production of documents, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply:

1. A statement of compliance with the demand is incomplete.
2. A representation of inability to comply is inadequate, incomplete, or evasive.
3. An objection in the response is without merit or too general.

(Code Civ. Proc., §2031.310, subd. (a)(1) – (3).)

The motion for order compelling further responses “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” (Code Civ. Proc., §2031.310, subd. (b)(1); Kirkland v. Sup. Ct. (2002) 95 Cal.App.4th 92, 98 (Kirkland).) To establish “good cause,” the burden is on the moving party to show both relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case) and specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). (Glenfed Develop. Corp. v. Sup. Ct. (1997) 53 Cal.4th 1113, 1117.) Where the moving party establishes “good cause,” the burden shifts to the responding party to justify its objections. (Kirkland, supra, 95 Cal.App.4th at p. 98.)

Defendant Nanjangud’s RPD, set three, number 3 seeks, “Any and all medical records from facilities in Colorado where Plaintiff treated for his motorcycle accident of 2014, including but not limited to St. Mary’s Hospital.”

Plaintiff Sonagere responded stating, “Objection. Responding party objects to this request to the extent that it calls for the production of private medical records unrelated to the incident and protected by the California Constitution. Responding party further objects to this request on the grounds that it seeks information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. Responding party will not produce confidential or documents protected by the constitutional right to privacy except pursuant to an appropriate protective order to be entered in this action and any Court ordered modification thereof.”

In support of good cause, defendant Nanjangud explains that, in addition to the motorcycle accident of September 26, 2014 which is the subject of this action, plaintiff Sonagere was involved in a prior motorcycle accident which occurred on July 31, 2014. Defendant Nanjangud contends plaintiff Sonagere’s medical condition on September 26, 2014 is relevant to determine if plaintiff Sonagere contributed to the accident and relevant to determine if he had any existing injur(ies) and what effect those existing injuries had with regard to the injuries and/or treatment plaintiff received in the present action. Defendant Nanjangud’s counsel declares she sought plaintiff Sonagere’s authorization for release of his medical records relating to his July 31, 2014 motorcycle accident, but plaintiff refused. The court finds defendant Nanjangud has demonstrated good cause justifying the discovery sought by the inspection demand.

In opposition, plaintiff Sonagere first asserts that the requested documents are not in his possession, custody or control. If so, plaintiff Sonagere’s response is inadequate. The appropriate response would have been to state his inability to comply. (See Code Civ. Proc., §2031.210, subd. (a)(2).) “A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” (Code Civ. Proc., §2031.230.)

Even if plaintiff Sonagere had responded in accordance with the provisions above, the court is of the opinion that plaintiff Sonagere’s medical records are within his control even if he does not have possession or custody of those records. As indicated above, a plaintiff must first make a reasonable inquiry from his medical provider for the relevant medical records. There is no indication that plaintiff Sonagere has made a reasonable inquiry.

Plaintiff Sonagere next argues that the request seeks irrelevant information. As indicated above, the court finds defendant Nanjangud has demonstrated the direct relevance of the information being sought.

Plaintiff Sonagere further contends the request is overbroad in scope and as to time. The court disagrees. Defendant Nanjangud’s RPD, set three, number three is limited in scope (records relating to treatment for motorcycle accident) and limited in time (2014).

Finally, plaintiff Sonagere contends the discovery being sought is objectionable on grounds of privacy. The right of privacy established by the California Constitution protects an individual’s “reasonable expectation of privacy against a serious invasion.” (Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 370 (Pioneer), citing Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 40.) Where a serious invasion of a reasonable expectation of privacy is shown, the proponent of discovery must demonstrate that information sought is “directly relevant” to a claim or defense, and “essential to the fair resolution of the lawsuit.” (Britt v. Superior Court (1978) 20 Cal.3d 844, 859; Harris v. Superior Court (1992) 3 Cal.App.4th 661, 665.) If direct relevance is shown, the court must “carefully balance” the right of privacy, on the one hand, and the right of civil litigants to discover relevant facts, on the other. (Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 657; see also Pioneer, supra, 40 Cal.4th at p. 371.)

“The constitutional right of privacy applies to a party’s medical history.” (Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PROC. BEFORE TRIAL (The Rutter Group 2017) ¶8:305, p. 8C-100 citing John B. v. Superior Court (2006) 38 Cal.4th 1177, 1198 (John B.) “’An individual’s right of privacy encompasses not only the state of his mind, but also his viscera.” (Id. citing Board of Med. Quality Assurance v. Gherardini (1979) 93 Cal.App.3d 669, 679 (Gherardini) and Pettus v. Cole (1996) 49 Cal.App.4th 402, 441.) “A person’s medical profile is an area of privacy infinitely more intimate, more personal in quality and nature than many areas already judicially recognized and protected.” (Gherardini, supra, 93 Cal.App.3d at p. 678.)

However, “the constitutional right to privacy is not absolute. It may be outweighed by supervening concerns. The state has enough of an interest in discovering the truth in legal proceedings, that it may compel disclosure of confidential material. An individual’s medical records may be relevant and material in the furtherance of this legitimate state purpose.” (Palay v. Superior Court (1993) 18 Cal.App.4th 919, 933; internal citations omitted.) “Even sensitive and personal information may be ordered disclosed if it is shown to be ‘directly relevant’ and ‘essential to a fair determination’ of the action.” (Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PROC. BEFORE TRIAL (The Rutter Group 2017) ¶8:326, p. 8C-114 citing Alch v. Superior Court (2008) 165 Cal.App.4th 1412, 1431 – 1432.)

As explained above, the information being sought is directly relevant to plaintiff’s claims for personal injury and to defendant’s defense of contributory negligence. Said information would be essential to a fair determination of the action. If direct relevance is shown, the court must “carefully balance” the right of privacy, on the one hand, and the right of civil litigants to discover relevant facts, on the other. (Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 657; see also Pioneer, supra, 40 Cal.4th at p. 371.) “[O]ne’s constitutional right of privacy is not absolute and, upon a showing of some compelling public interest, the right of privacy must give way.” (Harris, supra, 3 Cal.App.4th at p. 664.) “The state has a significant interest in facilitating the ascertainment of truth and the just resolution of legal claims.” (Id.; punctuation and citations omitted.)

On balance, this court finds plaintiff Sonagere’s privacy interest in his medical records for a motorcycle accident occurring on or about July 31, 2014 is outweighed by defendant Nanjangud’s right to discover relevant facts in this case. Even so, plaintiff Sonagere is presumptively entitled to a protective order that limits disclosure of his private information.

Accordingly, defendant Nanjangud’s motion to compel further response to RPD, set three, number 3 is GRANTED. Plaintiff Sonagere shall provide a further response, without objection, within 20 calendar days from notice of entry of order. Any responsive documents produced shall be subject to a protective order.

VII. Defendant Nanjangud’s request for monetary sanctions is GRANTED.

“[T]he court shall impose a monetary sanction … against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, 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.” (Code Civ. Proc., §2031.310, subd. (h).)

Defendant Nanjangud’s counsel declares she spent five hours in connection with the preparation of this motion at the billing rate of $175.00 per hour and incurred a $90 filing fee. Defendant Nanjangud’s counsel anticipates spending an additional two and a half hours to respond to any opposition and attend the hearing. The court awards sanctions only for expenses actually incurred, not for anticipated expenses. (See Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551.)

Defendant Nanjangud’s request for monetary sanctions is GRANTED in the amount of $965. Plaintiff Sonagere shall pay $965 to defendant Nanjangud within 20 calendar days of the date of the filing of this order.