Case Number: BC696853 Hearing Date: November 27, 2018 Dept: 7

[TENTATIVE] ORDER RE: PLAINTIFF’S MOTIONS TO QUASH SUBPOENAS FOR RECORDS; MOTION GRANTED

On March 1, 2018, Plaintiff Andrea Skelton (“Plaintiff”) filed this action against Defendant Kate Rinaldi (“Defendant”) for motor vehicle negligence, general negligence, and negligence per se arising out of a July 6, 2017 motor vehicle accident. Plaintiff seeks damages for wage loss, loss of use of property, hospital and medical expenses, general damages, property damage, and loss of earning capacity. On August 8, 2018, Defendant served subpoenas for records on The Dove Studio, Platinum Black Salon, and Brigette Rozenberg, D.C. Plaintiff moves to quash the subpoenas on grounds they are overbroad and seek privileged records.

A deposition subpoena may request (1) only the attendance and testimony of a deponent, (2) only the production of business records for copying, or (3) the attendance and testimony, as well as the production of business records. (Code of Civ. Proc., § 2020.020.) The court, upon motion or the court’s own motion, “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. In addition, the court may make any other orders as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” (Code of Civ. Proc., § 1987.1, subd. (a).) “A deposition subpoena that commands only the production of business records for copying shall designate the business records to be produced either by specifically describing each individual item or by reasonably particularizing each category of item . . .” (Code of Civ. Proc., §2020.410, subd. (a).)

Defendant argues the parties did not properly meet and confer before Plaintiff filed these Motions. While the Court encourages the parties to meet and confer and to make a good faith effort at informal resolution, the Code of Civil Procedure requires a meet and confer declaration where the moving party is the party seeking to compel compliance with the subpoenas, not where the moving party is moving to quash. “The party requesting a consumer’s personal records may bring a motion under Section 1987.1 to enforce the subpoena within 20 days of service of the written objection. The motion shall be accompanied by a declaration showing a reasonable and good faith attempt at informal resolution of the dispute between the party requesting the personal records and the consumer or the consumer’s attorney.” (Code of Civ. Proc., §§ 1985.3, subd. (g); 1985.6, subd. (f)(4).)

Personal information includes identifying information, such as name, address, phone number, social security number, physical description, and educational, financial, medical, or employment history. (Jennifer M. v. Redwood Women’s Health Center (2001) 88 Cal.App.4th 81, 88-89.) When a plaintiff puts her health and physical condition at issue, the privacy and privileges that normally attach to such sensitive information are “substantially lowered by the very nature of the action.” (Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal.4th 30, 43.) The Court must “balance the public need against the weight of the privacy right” and only serious invasions of privacy will bar discovery. (Crab Addison, Inc. v. Superior Court (2008) 169 Cal.App.4th 958, 966.) There is not an egregious invasion of privacy every time there is a request for private information and courts must “place the burden on the party asserting a privacy interest to establish its extent and seriousness of the prospective invasion.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 557.)

The Dove Salon and Platinum Black Salon

“Any employee whose employment records are sought by a subpoena duces tecum may, prior to the date for production, bring a motion under Section 1987.1 to quash or modify the subpoena duces tecum.” (Code of Civ. Proc., § 1985.6.)

The subpoenas to the Dove Salon and Platinum Black Salon seek any and all records pertaining to Plaintiff’s employment including, but not limited to, wage, attendance, any payroll records, salary, benefits, applications, claims for Workers’ Compensation of any kind, timesheets, vacation, sick leave, medical and personnel file records.

Plaintiff recognizes that, given her claims for wage loss and loss of earning capacity, Defendant is entitled to discovery of her employment records. However, Plaintiff argues the subject subpoenas are overbroad as to time and scope and are not narrowly-tailored to produce directly relevant information.

Defendant argues the right to privacy is not absolute and that Plaintiff has put her employment history at issue. However, just because Plaintiff seeks wage loss and loss of earning capacity does not mean Defendant is entitled to her entire employment file without limitation. Defendant has failed to show the subpoenas are not overbroad and tailored to discovery only directly relevant information such that Defendant’s right to discovery may be balanced with Plaintiff’s right to privacy. Other than saying these records are 100% relevant, Defendant does not address the actual records sought—wage, attendance, payroll records, salary, benefits, vacation, sick leave, personnel files, etc. Defendant also contends obtaining these records are the only means by which to establish Plaintiff’s credibility. Defendant cites to no authority that establishing credibility is a proper basis for discovery of Plaintiff’s entire employment file.

While the Court agrees, and Plaintiff does not dispute, that some employment records are relevant to this action, it is Defendant’s burden to show good cause for the actual records sought. Defendant failed to meet this burden. Accordingly, the Motion to quash subpoenas on The Dove Salon and Platinum Black Salon are GRANTED.

Brigette Rozenberg, D.C.

This subpoena seeks “any and all medical records, doctors’ reports, notes, memoranda, correspondence, videotapes, audio tapes, results of all tests, nurse’s notes, physical therapy notes, etc.” relating to “diagnosis as to condition and prognosis for recovery” and treatment, and any and all billing records.

Plaintiff argues the scope of this subpoena is overbroad and not narrowly-tailored to the issues and injuries in this case. In cases where a plaintiff puts his or her physical or emotional condition at issue by seeking damages for personal injury, the patient-litigant exception applies as an exception to the patient-physician privilege. (Evid. Code, §§ 994, 996.) However, this exception is limited. “A patient tenders the issue of his physical health if he files an action for personal injuries but only as to information which relates to the claimed injuries.” (Slagle v. Superior Court (1989) 211 Cal.App.3d 1309, 1313.)

The Court finds the subpoena, as worded, is overbroad. Again, Plaintiff does not dispute that she has placed her physical condition at issue. However, Defendant is not entitled to the entirety of her medical records. The case relied on and excerpt cited by Defendant supports this settled legal principle. In Britt v. Superior Court (1978) 20 Cal.3d 844, the Court stated:

As we explain, although in seeking recovery for physical and mental injuries plaintiffs have unquestionably waived their physician-patient . . . privileges as to all information concerning the medical conditions which they have put in issue, past cases make it clear that such waiver extends only to the information relating to medical conditions in question, and does not automatically open all of plaintiff’s past medical history to scrutiny.

(Britt, supra, 20 Cal.3d at p. 849.) The burden is on the party seeking the constitutionally protected information to establish direct relevance. (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1017.)

Plaintiff claims injuries to her head, neck, upper back, and lower back. (Declaration of Kuo Tiong, ¶ 11.) Therefore, Defendant is entitled to medical records relating to those body parts only. Further, Defendant is not entitled to records for an unlimited time period. Defendant has presented no evidence or argument as to why an unlimited time period is necessary or likely to lead to directly relevant evidence.

Accordingly, the subpoena on Brigette Rozenberg, D.C. is MODIFIED to seek records pertaining only to Plaintiff’s head, neck, upper back, and lower back for the three years preceding the subject accident.

Monetary Sanctions

“[T]he court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” (Code of Civ. Proc., § 1987.2.)

Both parties seek monetary sanctions. Defendant argues Plaintiff failed to meet and confer prior to filing these Motions. The Court encourages Plaintiff’s counsel to make better efforts to informally resolve the issues prior to filing motions. However, there was not substantial justification for Defendants to seek “any and all” medical records and employment records for Plaintiff, including records not directly relevant or likely to lead to the discovery of admissible evidence.

Plaintiff’s request for monetary sanctions is GRANTED and imposed against Defendant and counsel of record in the reduced amount of $680.00 for two hours at Plaintiff’s counsel’s hourly rate of $250.00 and $180.00 in filing fees, to be paid within twenty (20) days of the date of this Order.

Moving party to give notice.