Filed 9/5/19 Mena v. Superior Court CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

ARACELI MENA,

Petitioner,

v.

SUPERIOR COURT FOR THE COUNTY OF RIVERSIDE,

Respondent;

WELLS FARGO BANK, NATIONAL ASSOCIATION et al.

Real Parties in Interest.

E073123

(Super.Ct.No. RIC1816113)

OPINION

ORIGINAL PROCEEDINGS; petition for peremptory writ of mandate and/or prohibition. Daniel A. Ottolia, Judge. Petition is granted in part; denied in part.

Barritt Smith Miner, Perry G. Smith and Rachel N. Van for Petitioner.

No appearance for Respondent.

Sheppard, Mullin, Richter & Hampton, Thomas R. Kaufman and Rachel P. Howard for Real Party in Interest.

We have reviewed the petition and determined that it involves issues of well-settled law and undisputed facts. Real parties in interest have been served notice that a peremptory writ in the first instance may issue and have had the opportunity to respond. (Code Civ. Proc., § 1088; Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177-180.) For the following reasons, it is therefore proper to issue a peremptory writ in the first instance.

Petitioner (plaintiff) filed a lawsuit against her former employer and others (hereinafter Wells Fargo) after her employment was terminated while she was purportedly on disability leave following the birth of her child. Wells Fargo issued a subpoena to plaintiff’s treating obstetrician/gynecologist, which sought the following records: “ALL RECORDS THAT REFER, RELATE OR PERTAIN TO [PLAINTIFF], INCLUDING BUT NOT LIMITED TO: COMMUNICATIONS AND DOCUMENTS CONCERNING ANY WORK RESTRICTIONS, TIME OFF WORK, MEDICAL CONDITIONS, OR DIAGNOSES; COMMUNICATIONS WITH WELLS FARGO BANK, N.A. CONCERNING [PLAINTIFF]; COMMUNICATIONS WITH LIBERTY MUTUAL CONCERNING [PLAINTIFF]; NOTES, DOCUMENTS AND COMMUNICATIONS REFLECTING SYMPTOMS OF EMOTIONAL DISTRESS; NOTES (HANDWRITTEN AND TRANSCRIBED); REPORTS OF ANY KIND; MEDICAL HISTORY; MEDICAL RECORDS; EXAMS, TESTS, CORRESPONDENCE AND/OR EVALUATIONS OF ANY KIND (E.G. PHYSICAL, MENTAL, PSYCHIATRIC, PSYCHOLOGICAL) AND THEIR RESULTS; CLINICAL NOTATIONS; DIAGNOSES; PROGNOSES; PRESCRIPTIONS; REFERRALS; HOSPITAL VISITS; APPOINTMENT AND VISIT RECORDS; AND ANY OTHER WRITINGS CONCERNING TREATMENT PROVIDED TO [PLAINTIFF].”

Plaintiff moved to quash the subpoena. At a hearing on May 28, 2019, the trial court found the subpoena to be overbroad and granted in part plaintiff’s motion to quash, limiting production to four categories: (1) documents referring, relating, or pertaining to plaintiff regarding the pregnancy that specifically address work restrictions and/or time off of work; (2) communications with Wells Fargo and its administrator, Liberty Mutual; (3) medical records regarding the disability at issue, i.e., the disabilities or conditions that kept plaintiff from returning to work and necessitated her claims for disability leave; and (4) records that reflect any symptoms, treatments, or referrals regarding her emotional distress claim.

During oral argument, Wells Fargo objected to the limitations, claiming it would be difficult for the medical provider or its custodian of records to determine which records related to the “disability at issue.” The court concurred and ordered the parties’ attorneys to go to the medical office together, look through the records, meet and confer, and decide which records were discoverable. The hearing was continued, and the parties were ordered to file a joint conference statement five days before the next hearing.

The parties disagreed about whether the court’s order allowed defense counsel to view all records in plaintiff’s file, or only those records that fell within the four categories defined by the court. Wells Fargo filed a proposed order asking the court to confirm that its May 28, 2019 order related to all records in plaintiff’s medical file. The court signed the order and filed it on June 18, 2019.

Plaintiff filed the instant petition for writ of mandate and/or prohibition in this court on July 5, 2019, arguing that the trial court’s order violated her constitutional right to privacy by allowing an adverse party’s lawyer to view her nonrelevant medical records. We agree.

Review of discovery orders by extraordinary writ is generally disfavored. (Oceanside Union School Dist. v. Superior Court (1962) 58 Cal.2d 180, 185-186, fn. 4). However, courts have recognized an exception to this rule where such an order undermines a privilege. (See, e.g., Vinson v. Superior Court (1987) 43 Cal.3d 833, 838; Doe 2 v. Superior Court (2005) 132 Cal.App.4th 1504, 1515.) Because this situation presents itself here and plaintiff’s appellate remedies would be inadequate once any privileged information has been disclosed, we exercise our discretion to consider this petition. (See Code of Civ. Proc., § 1086; County of Los Angeles v. Superior Court (2005) 130 Cal.App.4th 1099, 1105-1106.) Discovery orders are reviewed for abuse of discretion. (Id. at p. 1105.)

“[M]edical records are highly sensitive materials that fall within the scope of the right to privacy” protected by the California and federal constitutions. (Manela v. Superior Court (2009) 177 Cal.App.4th 1139, 1150 (Manela); see Lantz v. Superior Court (1994) 28 Cal.App.4th 1839, 1853, disapproved on other grounds in Williams v. Superior Court (2017) 3 Cal.5th 531 (Williams); Griswold v. Connecticut (1965) 381 U.S. 479, 484; Cal. Const., art. I, § 1.) “[N]o aspect of a woman’s medical profile is more sensitive in terms of privacy interests than her obstetrical-gynecological history.” (Jones v. Superior Court (1981) 119 Cal.App.3d 534, 549, disapproved on other grounds in Williams, supra, 3 Cal.5th 531.)

We recognize that this right to privacy is not absolute. (Manela, supra, 177 Cal.App.4th at p. 1150.) By filing her lawsuit, plaintiff has waived her right to assert a privacy interest as to any information concerning the medical conditions she put at issue. (Britt v. Superior Court (1978) 20 Cal.3d 844, 849 (Britt); see Evid. Code, §§ 996, 1016.) However, the waiver does not allow Wells Fargo unfettered access to all of her personal gynecological records. The scope of plaintiff’s waiver depends on the nature of the injuries she claims. (See Britt, at pp. 863-864; see also In re Lifschutz (1970) 2 Cal.3d 415, 431.)

Plaintiff alleges in her complaint that she was required to go on leave during her pregnancy due to a cyst and fibroid tumors. She had an emergency caesarean section and subsequently experienced postpartum depression and anxiety, for which she obtained medical and psychiatric treatment. Her damages claim includes emotional distress and mental anguish. These allegations define the scope of medical records for which privilege has been waived.

Wells Fargo’s subpoena requests “reports of any kind,” as well as all “medical records . . . notations; diagnoses . . . and any other writings concerning treatment provided to [plaintiff].” Although it is likely that many of the records in the file are discoverable because they directly relate to the medical and psychiatric conditions raised by plaintiff, the subpoena is overly broad in that it seeks all records, not just those related to the pre-pregnancy and/or postpartum conditions for which plaintiff took leave. Given the myriad of reasons a patient would visit a gynecologist, it is conceivable that the files could contain sensitive information about plaintiff’s medical history that would have no bearing on the issues being litigated. As a result, the trial court was correct to grant in part plaintiff’s motion to quash and limit the scope of the subpoena to those records that related to the issues raised in plaintiff’s complaint.

The problem is, after properly narrowing the scope of production, the court then ordered Wells Fargo’s attorneys to view plaintiff’s entire file, including records that were outside the court’s own modified scope of production.

Wells Fargo argues that it will not use or produce at trial any records it deems nonresponsive so plaintiff’s privacy concerns are unfounded. However, disclosure to defense counsel of any gynecological records that fall outside the court’s own defined scope of relevant discovery is a privacy violation in and of itself. Allowing an adversary’s counsel to view private, sensitive, and potentially embarrassing records to determine whether they have some relationship to the instant lawsuit is unwarranted, and the trial court abused its discretion by ordering such disclosure. Therefore, those portions of the court’s orders should be vacated.

We leave it to the trial court to devise a mechanism for production that is “tailored to avoid disclosure of protected records.” (Palay v. Superior Court (1993) 18 Cal.App.4th 919, 934, disapproved of on other grounds in Williams, supra, 3 Cal.5th 531.) In Palay, for example, an in camera review of the records with plaintiff’s counsel, outside the presence of defense counsel, was found to be an appropriate way to accommodate the competing interests of confidentiality and disclosure. (Palay, at p. 935; see Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 739.) This is not meant to suggest that an in camera inspection is the only available way to prevent unnecessary disclosure of plaintiff’s medical records, and the court is free to employ any method that sufficiently safeguards plaintiff’s privacy.

DISPOSITION

Let a peremptory writ of mandate issue, directing the Riverside County Superior Court in case No. RIC1816113 to vacate those portions of its May 28, 2019 and June 18, 2019 orders that require plaintiff’s and defendants’ counsel to go to the subpoenaed medical provider’s office together and review all of plaintiff’s records in the provider’s possession. Instead, the trial court is directed to enter a new and different order consistent with the views expressed herein.

Petitioner is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.

The stay previously ordered by this court is lifted upon imposition of the consistent order in the superior court.

Petitioner is entitled to recover costs. (Cal. Rules of Court, rule 8.493(a).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J

We concur:

CODRINGTON

J.

RAPHAEL

J.