Case Number: BP151795    Hearing Date: August 05, 2014    Dept: 5

In re The Stern Family Trust Dated April 4, 1984
Kenneth Stern’s Motion to Quash Subpoenas Duces Tecum is denied. The request of each party for sanctions against the other is denied.

The underlying matter involves the Stern Family Trust. Henry S. Stern and Thelma Stern were the trustors of the Trust. Mark S. Stern and Kenneth M. Stern are the only children of Henry and Thelma and the sole beneficiaries of the Trust.

Henry died prior to 8/8/05. The Trust remained revocable and amendable by Thelma as surviving trustor. After Henry’s death, Thelma modified the Trust on 8/08/05 and 3/01/06. On 8/16/11 Thelma signed Instructions directing Kenneth to make changes to the Trust. Kenneth subsequently modified the Trust on 6/1/12 and 8/15/13. Thelma died on 1/06/14.
On May 5, 2014, Mark Stern filed a Contest to Set Aside the Purported Exercise by Kenneth M. Stern of the Third and Fourth Modifications of the Stern Family Trust on the Grounds of Lack of Capacity of Thelma Stern, Undue Influence and Duress, and Lack of Authority of Kenneth M. Stern to So Act. Mark’s contest alleges that when Thelma signed the Instructions in 2011, she was suffering from dementia and lacked the capacity to give such Instructions, which reduced Mark’s formerly equal share of the trust assets.

Kenneth now moves to quash Mark’s subpoenas for Thelma’s medical records on the ground that these records are protected by her right to privacy. The subpoenas seek the production of Thelma’s medical records from Kaiser Permanente and Pacifica Senior Living in Northridge, California. The subpoenas seek all medical records of any kind during the period of January 1, 2010 through the present regarding Thelma, including admitting records or intake forms, cerebrovascular profiles, consultation reports, examination records, imaging reports, laboratory reports, MRI or similar scans, mental and behavioral health visitation notes, patient histories, patient reports, patient progress notes, physician order sheets, physician reports, physical examination records, plans of care, psychiatric evaluations, speech therapy treatment records and treatment records. The subpoenas also seek all communications during the same period between Kaiser and Pacifica and Kenneth Stern regarding Thelma Stern or Mark Stern.

A party may obtain discovery regarding any non-privileged matter that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. CCP § 2017.010. When the constitutional right of privacy is involved, the party seeking discovery of private matter must demonstrate a compelling need for discovery, and the compelling need must be so strong as to outweigh the privacy right when these two competing interests are carefully balanced. (Lantz v. Superior Court (1994) 28 Cal.App.4th 1839, 1854.)

The constitutional right of privacy applies to a party’s medical history and extends to medical records pertaining to third persons. It does not prohibit all incursions into the individual zone of privacy, but rather requires that any such intervention be justified by a compelling state interest. (See Division of Med. Quality, Bd. of Med. Quality Assur. v. Gherardini (1979) 93 Cal.App.3d 669, 689.) A nonparty’s privacy rights may be asserts by any party to the action. (Wood v. Sup.Ct. (1985) 155 Cal.App.3d 1138, 1145.) Accordingly Thelma has a right to privacy in the medical records subpoenaed and Kenneth Stern has standing to assert those rights.

Compelled disclosure of private records must be directly relevant to the action and will be ordered only after a careful balancing of the compelling public need for discovery against the fundamental right to privacy. (Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 525.) The ascertainment of the trust in connection with legal proceedings is a compelling state interest. (Britt v. Superior Court (1978) 20 Cal.3d 844, 857.)

Kenneth alleges that the sole item of relevance is Thelma’s dementia; however, the main issue in Mark’s Contest is whether Thelma has testamentary capacity and whether Kenneth obtained the Instructions through undue influence. Therefore, Thelma’ medical records, beyond those addressing dementia, are directly relevant to her level of capacity and whether or not she was under undue influence at the time she signed the Instructions.

The court finds that the subpoenas are narrowly tailored to the relevant time period. Moreover, in light of Thelma’s death, production of the medical records is one of the few ways, if not the only way, to determine Thelma’s mental capacity. The court finds that Mark has demonstrated that the need for the discovery outweighs Thelma’s privacy rights and that his need for the medical records outweighs Kenneth’s interest in those records.

The motion to Quash is denied. Both parties’ requests for sanctions are denied.

Responding Party to give notice.