Case Number: BC705108 Hearing Date: October 30, 2018 Dept: 3

LUZ SANTOS,

Plaintiff(s),

vs.

BRIAN ABERNATHY, ET AL.,

Defendant(s).

Case No.: BC705108

[TENTATIVE] ORDER GRANTING MOTION TO QUASH

Dept. 3

1:30 p.m.

October 30, 2018

Plaintiff, Luz Santos filed this action against Defendants, Brian and Delna Abernathy for damages arising out of a trip and fall at Defendants’ apartment complex.

Defendant propounded deposition subpoenas for production of business records on (1) Huntington Memorial Hospital, and (2) Eduardo E. Anguizola, M.D. Each of the subpoenas is an “any and all” records style subpoena. Plaintiff moves to quash the subpoenas at this time.

As an initial note, Plaintiff’ failed to file a separate statement, as required by CRC 3.1345(5). The Court finds the moving papers adequately state the grounds upon which the motion is based, and all arguments are articulated in a manner that substantially satisfies the separate statement requirement. In the absence of an objection by Defendants on this ground, the Court will rule on the motion on its merits.

Plaintiff argues all of the subpoenas, which are directed at her medical providers, are overbroad and violate her right to privacy because they are not limited to the body parts at issue. Defendant argues Plaintiff’s condition at the time of the fall is at issue because Plaintiff has a history of other injuries and Plaintiff is claiming depression, difficulty sleeping, and severe emotional distress as a result of the accident.

Exhibit A to the opposition shows that Plaintiff, in response to form interrogatories, indicated she claims the following as a result of the fall: injuries to her right shoulder (arthroscopy surgery, severe right shoulder pain), finger sprain, thoracic and lumbar strain/sprain, neck pain, right middle finger strain, mid and lower back pain, headaches, pain, swelling, and spasms in the right lower neck area, extreme pain and suffering, clinical depression, difficulty sleeping, and severe emotional distress.

Defendants rely on various cases in support of their position that discovery is intended to be broad; many of the cases do not concern the right to discovery in the face of a valid right to privacy objection, and instead concern the more general right to discovery. Defendants’ most on point case cited is Slagle v. Superior Court (1989) 211 Cal.App.3d 1309. Defendants argue the case supports their position that “any and all” of Plaintiff’s medical records are discoverable. In Slagle, the plaintiff filed suit for damages arising out of an automobile accident. The defendant reviewed the plaintiff’s hospital records from the day of the accident, and they included a note saying that the plaintiff was blind in both eyes six months prior to the accident. The defendant sought medical records from the plaintiff’s eye doctor on the ground that the plaintiff’s blindness could have caused or contributed to the parties’ automobile accident. The court of appeals stated the general rule, which is that the defendant is only entitled to medical records relating to the portion of the body allegedly injured as a result of the incident that forms the basis of the lawsuit. The court of appeals went on, however, to indicate that medical records would be discoverable if they were relevant to the issue of proximate causation if good cause for disclosure was shown. The court of appeals went on to hold, “We emphasize, however, that real parties here, through the unprivileged information that petitioner was blind six months before the accident, showed good cause to believe that the history of treatment to petitioner’s eyes was relevant to the cause of the accident. If petitioner fears that the medical records ordered produced will reveal information not relevant to the condition of his eyesight at the time of the accident, he may request an in camera inspection of the records to segregate the irrelevant information.” Id. at 1315.

Slagle does not stand for the broad position that a defendant can place the plaintiff’s medical condition at issue in the answer and immediately become entitled to all of the plaintiff’s medical records. It instead stands for the narrow conclusion that, in circumstances where the plaintiff has a known prior medical condition that would likely contribute to the accident itself, the defendant is entitled to medical records about that specific condition.

In this case, there is no evidence in Defendants’ opposition about any medical condition suffered by Plaintiff pre-dating the slip and fall at issue in the lawsuit. There is evidence that Plaintiff suffered another slip and fall, but any records from the fall that relate to Plaintiff’s body parts at issue in this lawsuit would be permitted to be produced through a valid, limited subpoena. Defendants seem to be arguing that records about every possible condition must be produced because Plaintiff is claiming serious emotional distress and related claims, and other conditions could be causing those damages. Defendants are entitled to Plaintiff’s mental health records in light of her claims of depression, trouble sleeping, etc. Those records may reveal alternative sources of those damages. Defendants failed, however, to show that they can go “fishing” for potential other explanations for these claimed damages.

Because Defendants failed to meet their burden to show that the need for “any and all” of Plaintiff’s medical records outweighs Plaintiff’s right to privacy in those records, the motion to quash is granted. The Court asks the parties to meet and confer, with the foregoing in mind, in order to agree to the description of records to be produced by way of subsequent subpoenas.

The remaining issue is whether or not to impose sanctions. CCP §1987.2(a) permits the Court to impose sanctions if the opposing party opposed the motion in bad faith or without substantial justification. The Court finds this is a close call. Defendants appear to have taken their position that Plaintiff’s claimed serious mental health issues stemming from her fall support broad discovery in good faith. Additionally, Plaintiff failed to file a separate statement, as required by the Rules of Court. The Court is not inclined to impose sanctions at this time. Plaintiff is ordered to give notice.