Case Number: BC610044 Hearing Date: May 25, 2018 Dept: A

Lopez v Marengo Management Corp.

MOTION TO COMPEL NON-PARTY’S COMPLIANCE WITH DEPOSITION SUBPOENA; MOTION TO SEAL

Calendar: 1

Case No: BC610044

Hearing Date: 5/25/18

Action Filed: 2/10/16

Trial: Not set

Motion to Compel Non-Party’s Compliance with Deposition Subpoena

MP: Defendant Marengo Management Corp. dba “Lanai Motel”

RP: Plaintiff Ellen Lopez

Motion to Seal

MP: Plaintiff Ellen Lopez

RP: Defendant Marengo Management Corp. dba “Lanai Motel”

ALLEGATIONS IN COMPLAINT:

In this action, Plaintiff Ellen Lopez alleges that she was injured when a headboard fell on her while she was a patron on the premises of Defendants Marengo Management Corp. dba Lanai Motel (“Marengo”), Yan Hao, Chen Yen, Dave Chiang, and Emily Lin.

The complaint, filed February 10, 2016, alleges causes of action for general negligence and premises liability.

RELIEF REQUESTED:

Marengo moves to compel non-party Parent Care Management Services, Inc. (“PCMS”) to comply with the deposition subpoena for production of business records served on it by Marengo by producing unredacted responsive documents.

Plaintiff moves to seal an exhibit.

ANALYSIS:

1. Plaintiff’s Motion to Seal

Pursuant to CRC, Rule 2.550(d), “The court may order that a record be filed under seal only if it expressly finds facts that establish:

(1) There exists an overriding interest that overcomes the right of public access to the record;

(2) The overriding interest supports sealing the record;

(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;

(4) The proposed sealing is narrowly tailored; and

(5) No less restrictive means exist to achieve the overriding interest.”

Plaintiff moves to seal a fully unredacted version of Plaintiff’s physical and mental health records that were kept or created by PCMS that Marengo seeks to compel via the motion to compel non-party PCMS’s compliance with deposition subpoena for production of business records. Plaintiff produced to Defendants the redacted documents that Marengo attaches as Exhibit C to its motion. With the motion to seal, Plaintiff provides Exhibit A, which is an unredacted version of the documents. Plaintiff argues there is support for sealing these documents because the entirety of her mental and physical health records, assessments, and related communications are not related to this action.

Patients have a reasonable expectation of privacy as to their medical information that is not directly relevant to a particular condition the patient has placed in issue. (Cal. Consumer Health Care Council v. Kaiser Foundation Health Plan, Inc. (2006) 142 Cal. App. 4th 21, 31.) Thus, while there is a privacy interest in one’s medical records, here, Plaintiff has put at issue her physical state and injuries. Facts regarding her injury, her awareness at the time, previous injuries related to the injury she is claiming, and the facts/circumstances of her injury are relevant to this action.

Further, most of the documents are observations in email form regarding Plaintiff’s mental state and living situation. These do not appear to be actual medical assessments performed by a medical professional, but are rather correspondence between facilities about where to place her. Plaintiff has not justified how there is an overriding interest in these type of records such that sealing is proper.

Finally, the proposed sealing is not narrowly tailored as essentially large portions of texts over numerous pages are blocked out. As discussed above, Plaintiff has not substantiated what overriding interest supports sealing the record regarding the majority of the documents—particularly the email correspondence between various individuals regarding Plaintiff’s living situation, the incident, delivering her medication, etc.

Accordingly, the Court will deny the motion to seal. Plaintiff has not shown that an overriding interest exists since she has put her physical state at issue for the portions of the documents that arguably relate to her medical condition. Plus, the remainder of the documents are not medical records and Plaintiff has not provided what overriding interest exists to seal such documents. Lastly, the proposed sealing is not narrowly tailored.

2. Marengo’s Motion to Compel Non-Party’s Compliance with Deposition Subpoena

If a subpoena requires the attendance of a witness or the production of documents, the court may, upon motion reasonably made, 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. (CCP §1987.1(a).)

Marengo moves to compel the compliance of PCMS with the deposition subpoena to produce any and all records to the care and management of Plaintiff, including documents evidencing any notes, recordings, records, etc. prepared by Stuart Swann, PCMS personnel, between Swann and Plaintiff and/or her family; documents mentioning or implying that Plaintiff fabricated the claimed incident; communications between PCMS and the CPT Trust regarding Plaintiff; documents referring to the incident; documents regarding her lodging; PCMS invoices; all contents of her file; and any communications to PCMS regarding retention, termination, or modification of services to Plaintiff. (Mot., Ex. B.)

The motion is granted for several reasons.

First, the documents were produced by Plaintiff with the motion to seal in their unredacted form. Thus, this motion to compel compliance is essentially moot since the unredacted copies have been produced. (Further, as discussed above, the documents should also be unsealed.)

Second, Marengo has established that good cause exists to compel PCMS’s compliance with the deposition subpoena for business records because the documents relate to Plaintiff’s alleged injuries, the facts related to Plaintiff’s placement in Marengo’s motel, the alleged causation of the incident, and Plaintiff’s overall credibility. In particular, Mr. Swann testified in his deposition that he had questions regarding whether Plaintiff fabricated the headboard incident and injury, but Mr. Swann stated he would not disclose that information further in deposition. (Swann Depo. at p.77.) Thus, by way of this deposition subpoena, Marengo seeks the documents that support Mr. Swann’s deposition testimony. Marengo also points to redacted documents produced by PCMS showing that Plaintiff complained about her foot on June 17, 2016, which was prior to her injury that occurred on June 19, 2015, as well as a June 21, 2015 entry that stated that Plaintiff threatened to call a lawyer on Marengo for her sore foot that she had before the motel stay. (See Mot. at p.8, Ex. C.)

Third, while a plaintiff is not obligated to sacrifice all privacy to seek redress for a specific physical, mental, or emotional injury, “they may not withhold information which relates to any physical or mental condition which they have put in issue by bringing this lawsuit.” (Britt v. Superior Court (1978) 20 Cal.3d 844, 864; City & County of San Francisco v. Superior Court (1951) 37 Cal.2d 227, 232.) A plaintiff suing for personal injuries waives the physician-patient privilege to some extent, but this does not make discoverable all of a plaintiff’s lifetime medical history. (Britt, supra, 20 Cal.3d at 863-64.) As such, documents pertaining to Plaintiff’s injuries and the facts regarding the incident are relevant to this action regarding the alleged injuries to her foot. (See Evid. Code, §996.)

In addition, the Court does not consider the PCMS records to be “medical” records, such that the physician-patient privilege or the psychotherapist-patient privilege apply. (See Evid. Code, §§994, 1014.) PCMS is not a healthcare facility, but rather provides care management services (which even Plaintiff agrees to in the opposition brief). Also, Stuart Swann, an employee of PCMS at the time of the incident, states he is not a licensed social worker or licensed psychologist/psychiatrist, but that he provided case/care management for Plaintiff. (Mot., Ex. A [Swann Depo. at p.12].) Plaintiff admits this in the opposition as well. (Opp. at p.7.) Thus, these documents created by PCMS and its personnel are not privileged documents.

Fourth, Plaintiff argues that the documents are protected on privacy and relevance grounds. However, for the reasons discussed above, the documents at issue are relevant and Marengo has established good cause as to their relevance. Next, Plaintiff states that while PCMS has no right of privacy to Plaintiff’s physical and mental health records, Plaintiff herself may have privacy to those documents. (Opp. at p.7.) For the same reasons as above, even if Plaintiff had a privacy interest in her healthcare records, Plaintiff has put such information at issue by bringing her personal injury lawsuit.

Thus, the Court will grant the motion to compel PCMS’s compliance with the deposition subpoena (to the extent it has not already been complied with).

RULING:

Deny Plaintiff’s motion to seal.

Grant Marengo’s motion to compel PCMS’s compliance with the deposition subpoena.