Case Number: BC660570 Hearing Date: May 31, 2018 Dept: 3

JESUSITA CONSUELO CALDERON,

Plaintiff(s),

vs.

ADVANCE TIRE AND MUFFLER, ET AL.,

Defendant(s).

CASE NO: BC660570

[TENTATIVE] ORDER GRANTING MOTION TO COMPEL

Dept. 3

1:30 p.m.

May 31, 2018

1. Background Facts

Plaintiff, Jesusita Consuelo Calderon filed this action against Defendants, Advance Tire and Muffler and Darren Reichert for premises liability. Plaintiff alleges injuries to her head as a result of her fall, and testified at deposition that she received treatment from Community Hospital for mental distress, anxiety, and/or depression, which she attributes to her fall.

2. Motion to Compel

On 8/31/17, Defendant served a deposition subpoena for production of medical records on Community Hospital. The subpoena sought production of all medical records. Neither Plaintiff nor the Hospital served formal objections, but the Hospital instructed its legal service not to comply absent Plaintiff’s signed authorization or a court order. Defendant and the Hospital were unable to resolve this dispute, and Defendant ultimately filed this motion to compel.

a. Hospital’s Opposition

The Hospital opposes the motion, arguing the records can only be produced if Plaintiff, either expressly or impliedly, waives her privilege concerning the records. It argues Plaintiff has not done so, and production of the records would be improper.

b. Plaintiff’s Opposition

Plaintiff opposes the motion, contending she is asserting a “garden variety” claim for emotional distress, and her psychiatric records should not be produced.

c. Procedural Issues

The primary issue on this motion is procedural in nature. As noted above, Defendant served the subpoena on 8/31/17. Neither Plaintiff not the Hospital ever served a formal objection to the subpoena, and Plaintiff did not file a motion to quash.

Either the nonparty witness who has been subpoenaed, or any party to the action, may challenge the deposition subpoena. The procedures that may be used depend on who is raising the challenge. A motion to quash (or modify) a deposition subpoena for production of documents may be made by a party or a (nonparty) witness. CCP §1987.1, et seq. A nonparty served with a “records only” subpoena may either move to quash all or a portion of the subpoena, or merely object to the production of all or some of the documents and put the onus on the proponent to make a motion to compel. Monarch Healthcare v. Superior Court (2000) 78 Cal.App.4th 1282, 1290.

The Hospital argues it objected to the subpoena, and therefore did all that was required of it. The Hospital fails, however, to show that it ever served a formal objection. While it is clear that the Hospital did not produce the records, and communicated its intent not to produce the records to Defendant, this is not the same thing as serving an objection. In the absence of a motion to quash or a formal objection, the Court is inclined to grant the motion to compel.

d. Lanterman-Petris-Short Act

The Hospital also argues it would be improper for it to produce the records absent Plaintiff’s consent. The parties discuss the ruling in Mavroudis v. Superior Court (1980) 102 Cal.App.3d 594, 602 in this regard. In Mavroudis, the court held that records relating to a plaintiff’s mental health, which are the same type of records at issue here, can only be produced if production is “necessary to the administration of justice.” WIC §5328(f). The Court therein noted that the holder of the privilege, the patient, can waive the privilege, but the health care provider is under an obligation to assert the privilege. Id. at 602-603.

Defendant herein argues Plaintiff waived the privilege by failing to file a motion to quash the subpoena. The Hospital argues failure to file a motion to quash cannot be construed as a waiver, and Plaintiff’s attorney’s failure to act cannot be construed as a waiver on the part of Plaintiff herself. The Hospital relies on Calvert v. State Bar (1991) 54 Cal.3d 765, 780 in this regard. Defendant, in reply, correctly notes that Calvert was decided in a completely different context, and did not contemplate the situation here. In this case, Plaintiff was served with the deposition subpoena for production of medical records. Plaintiff had a codified option to file a motion to quash, and failed to do so. Indeed, she failed to respond in any way. The Court therefore finds Plaintiff waived the privilege, and the records must be produced.

e. Garden Variety Emotional Distress

Plaintiff, in opposition to the motion, argues she is merely asserting a garden variety emotional distress claim, and therefore her mental health records need not be produced. As an initial note, she fails entirely to address her failure to file a motion to quash if she believed the records at issue should not be produced.

Additionally, Plaintiff failed to address her deposition testimony, attached as Exhibit 3 to the moving papers. On page 99 of her deposition, she testified that her treatment at the Hospital was related to the fall at issue in this lawsuit. That testimony is sufficient to show a need for the records.

f. Conclusion

The motion to compel is granted. The Hospital is ordered to produce Plaintiff’s records subject to the subpoena within twenty days. Defendant does not seek imposition of sanctions and none are awarded. Defendant is ordered to give notice.