Case Number: BC691782 Hearing Date: November 05, 2019 Dept: 4A

Motion to Quash Subpoena

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On January 25, 2018, Plaintiff Phillip Ahn (“Plaintiff”) filed a complaint against Defendant Steven Selover (“Defendant”) alleging motor vehicle a general negligence for an automobile collision that occurred on February 5, 2016.

On October 2, 2019, Plaintiff filed a motion to quash a deposition subpoena pursuant to California Code of Civil Procedure section 1987.1.

Trial is set for January 16, 2020.

PARTY’S REQUESTS

Plaintiff asks the Court to quash Defendant’s deposition subpoena issued to Dr. Chia-Wen Hsieh, PsyD because it is overbroad and seeks information that is irrelevant and protected by Plaintiff’s right to privacy.

Plaintiff also asks the Court to impose $3,140 in monetary sanctions against Defendant and his counsel of record for bringing this motion.

LEGAL STANDARD

California Code of Civil Procedure section 1987.1, subdivision (a) states, “[i]f a subpoena requires the attendance of a witness or the production of books, documents, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, 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 order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.”

“[U]pon motion reasonably made by the party, judges may rule upon motions for quashing, modifying or compelling compliance with, subpoenas.” (Lee v. Swansboro Country Property Owners Ass’n (2007) 151 Cal.App.4th 575, 582-583.)

In making an order pursuant to California Code of Civil Procedure section 1987.1, “the 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 Civ. Proc. § 1987.2, subd. (a).)

A motion to quash a subpoena must be accompanied with a meet and confer declaration showing a good faith and reasonable attempt at an informal resolution took place. (Code Civ. Proc. §§ 2016.040, 2025.410, subd. (c).)

DISCUSSION

“[P]laintiffs are ‘not obligated to sacrifice all privacy to seek redress for a specific [physical,] mental or emotional injury’; while they may not withhold information which relates to any physical or mental condition which they have put in issue by bringing [a] lawsuit, . . . they are entitled to retain the confidentiality of all unrelated medical or psychotherapeutic treatment they may have undergone in the past.” (Britt v. Superior Court (1978) 20 Cal.3d 844, 864 (citation and footnote omitted).) However, “. . . privacy interests may have to give way to [an] opponent’s right to a fair trial. Thus courts must balance the right of civil litigants to discover relevant facts against the privacy interests of persons subject to discovery.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 842.)

On September 10, 2019, Defendant issued a deposition subpoena on Dr. Chia-Wen Hsieh, PsyD seeking Dr. Hsieh’s testimony and production documents related to the psychological/psychotherapy consultations with Plaintiff, opinions of Plaintiff’s psychological condition, documents prepared on behalf of Plaintiff, and a variety of other documents. (Twomey Decl., ¶ 2, Exh. 1.) Plaintiff contends he suffered a traumatic brain injury/concussion and post-concussion syndrome after the collision that gave rise to this action. (Twomey Decl., ¶ 3.) This has resulted in chronic headaches, nausea and vomiting, photophobia, memory defects, and poor sleep. (Ibid.) Plaintiff does not claim to have suffered any psychological injuries with the crash, such as anxiety or depression. (Twomey Decl., ¶ 5.) Plaintiff does not claim to have received any psychological treatment as a result of the collision. (Ibid.)

Defendant argues that because Plaintiff testified that he suffered from anxiety and depression for many years, Defendant should be allowed to seek a wide range of psychological/psychotherapy records, like those identified in Defendant’s subpoena. Importantly, the documents requested in Defendant’s subpoena are not limited in time or scope in any way. Rather, Defendant requests any and all records related to Plaintiff. This subpoena is seriously overbroad. Plaintiff does not seek a protective order and the parties do not provide any reasonable suggestion as to how a protective order might be tailored to allow for some discovery of Plaintiff’s psychological/psychotherapy records. As a result, the only remedy suggested by the record is an order quashing the subpoena in its entirety.

Plaintiff’s request for $3,140 in monetary sanctions consists of 4 hours in preparing the moving papers, 1.5 hours in preparing a reply, and 2.5 hours in traveling to and appearing at the hearing at a rate of $350 an hour, plus one $60 filing fee, $140 overnight delivery of the moving papers, and $80 in overnight delivery of the reply papers. (Twomey Decl., ¶¶ 11-12.) The Court finds this to be unreasonable because the motion is relatively straight-forward. Rather, the Court finds $1,460 ($350/hr. x 4 hrs. plus one $60 filing fee) to be a reasonable amount of sanctions to be imposed against Defendant and his counsel of record.

The motion is therefore GRANTED.

The deposition subpoena Defendants issued Dr. Chia-Wen Hsieh, PsyD on September 10, 2019 is QUASHED.

Defendant and his counsel of record are ordered to pay Plaintiff $1,460, jointly and severally, within 30 days of this ruling.

Plaintiff is ordered to give notice of this ruling.