Case Number: BC694819 Hearing Date: August 10, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION TO COMPEL PLAINTIFF’S AUTHORIZATION FOR RELEASE OF RECORDS; MOTION DENIED

On February 21, 2018, Plaintiff Osama Shofani (“Plaintiff”) filed this action against Defendant Rasy Sourn dba LB Clothing (“Defendant”) for motor vehicle and general negligence relating to a March 4, 2016 automobile accident.

In responses to form interrogatories, Plaintiff identified injuries to his neck, low back, mid-back, and left leg as a result of the subject accident and prior injuries to the same body parts due to his military service. (Declaration of David A. Belofsky, ¶ 3; Exh. B.) Plaintiff’s medical records relating to his prior injuries and an explanation of benefits describing the bills incurred that were paid and unpaid are in the possession of the U.S. Department of Veterans Affairs (“VA”). (Belofsky Decl., ¶ 4; Exh. C.) On multiple occasions, Defendant has requested that Plaintiff sign an authorization for the VA to release his records, but Plaintiff has refused. (Belofsky Decl., ¶¶ 6-9.) Defendant moves for an order compelling Plaintiff to sign the authorization.

Plaintiff contends the court has no jurisdiction to order him to sign an authorization because it is not specifically authorized by statute. Plaintiff also contends the proper procedure would have been for Defendant to serve a subpoena for records on the VA and then to file a motion compelling compliance with the subpoena. Plaintiff seeks monetary sanctions against Defendant.

The Court agrees it does not have express authority under the Discovery Act to compel Plaintiff to sign the authorization for release of records. A health care provider may not disclose medical information regarding a patient without first obtaining an authorization, except as provided by statute, such as where disclosure of medical information is compelled by a court pursuant to an order of that court. (Civil Code, § 56.10, subds. (a), (b)(1).) Defendant should serve a subpoena for records on the VA, in compliance with Code of Civil Procedure section 1985.3, and may then move for an order compelling compliance pursuant to Section 1987.1 if the VA refuses to produce records.

Accordingly, the Motion to compel Plaintiff’s authorization is DENIED.

Plaintiff seeks monetary sanctions on grounds Defendant unsuccessfully and without substantial justification, moved to compel discovery by an unauthorized method, which Plaintiff views as a misuse of the discovery process. (Code of Civ. Proc., § 2023.010, subd. (h).) However, the Court finds Defendant acted with substantial justification. Case law on this particular issue is limited and that which does exist is not clear.

For example, in Miranda v. 21st Century Ins. Co. (2004) 117 Cal.App.4th 913, the appellate court upheld the dismissal of an action where the plaintiff failed to comply with the court’s order to sign an authorization for release of records. (Id. at pp. 918-919.) While the court in Miranda stated in a footnote that it was not clear why the defendant moved to compel an authorization rather than compliance with a subpoena, it did not go so far as to state the trial court’s order granting the motion to compel authorization was outside the trial court’s authority. (Id. at p. 918, fn. 2.) Further, in O’Grady v. Superior Court (2006) 129 Cal.App.4th 1423, the Stored Communications Act prohibited the disclosure of stored e-mail other than as authorized by enumerated exceptions, “most obviously, a disclosure with the consent of a party to the communication.” (Id. at p. 1446.) The court in O’Grady, relying on Miranda, held that “[w]here a party to the communication is also a party to the litigation, it would seem within the power of a court to require his consent to disclosure on pain of discovery sanctions.” (Ibid.)

The court finds Defendant justifiably believed the court could compel Plaintiff’s authorization for release of records and Plaintiff’s request for monetary sanctions is DENIED.

Moving party is ordered to give notice.