Case Number: BC533859    Hearing Date: September 02, 2014    Dept: 93

Superior Court of California
County of Los Angeles
Department 93

BERTHA COLLINS,

Plaintiff(s),
v.
PHILLIP JOSEPH BAUM, et al.,

Defendant(s). Case No.: BC533859

Hearing Date: September 2, 2014

[TENTATIVE] ORDER RE:
PLAINTIFF BERTHA COLLINS’ MOTION TO QUASH DEPOSITION SUBPOENAS, OR IN THE ALTERNATIVE, MOTION TO MODIFY DEPOSITION SUBPOENAS; REQUEST FOR MONETARY SANCTIONS

Plaintiff Bertha Collins’ Motion to Quash Deposition Subpoenas, or in the alternative, Motion to Modify Deposition Subpoenas; Request for Monetary Sanctions is GRANTED. The May 1, 2015 subpoena to “BCI Coca-Cola Bottling Company of Los Angeles,” is quashed. The May 5, 2014 subpoena to “MBC Systems I Medical Network: Southern California Sports Rehabilitation,” is limited to records relevant to Plaintiff’s right knee, waist, back and neck, within the past ten years. The Court orders sanctions in the amount of $1,320 be paid to Plaintiff within 20 days of service of this Order.

Request for Judicial Notice

Pursuant to Cal. Evidence Code Section 452(d), the Court should grant Defendant’s request for judicial notice of:

1. Complaint filed on January 21, 2014, in Bertha Collins v. Phillip Joseph Baum, Superior Court of the State of California, County of Los Angeles, Case No. BC533859.

2. Statement of Damages filed on February 4, 2014 in Bertha Collins v. Phillip Joseph Baum, Superior Court of the State of California, County of Los Angeles, Case No. BC533859.

Background

Plaintiff moves to quash the following deposition subpoenas, issued by Defendant:

1. May 1, 2015 subpoena to “BCI Coca-Cola Bottling Company of Los Angeles,” which seeks “Any and all records pertaining to the employment of above named individual, said records to include, but are 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.”

2. May 5, 2014 subpoena to “MBC Systems I Medical Network: Southern California Sports Rehabilitation,” which seeks “Any and all medical records, doctors’ reports, notes, memoranda, correspondence, videotapes, audio tapes, results of all tests, nurse’s notes, physical therapy notes, progress notes, surgical notes, surgical videotapes, sign in sheets, patient information sheets and arthograms pertaining to above named individual. Including diagnosis as to condition and prognosis for recovery, and any other information to the treatment of said individual.”

(Motion, Kashani Decl. (“Kashani Decl.”) Exhs. 1-2.)
Timeliness of Motion

Defendant argues that Plaintiff failed to give timely notice of the Motion to Quash, and on this basis the motion should be denied. Defendant is correct that notice was untimely, but incorrect as to the impact of the late notice. Code of Civil Procedure Section 1985.3(g) provides:

Any consumer whose personal records are sought by a subpoena duces tecum and who is a party to the civil action in which this subpoena duces tecum is served may, prior to the date for production, bring a motion under Section 1987.1 to quash or modify the subpoena duces tecum. Notice of the bringing of that motion shall be given to the witness and deposition officer at least five days prior to production.

The subpoenas at issue in this motion directed production by June 2, 2014 and June 4, 2014. (Kashani Decl. Exhs. 1-2.) Accordingly, Section 1985.3(g) required that notice of the motion to quash be given by May 28, 2014 and May 30, 2014, respectively. The instant motion, however, was served on Defendant on May 30, 2014 by mail (making notice effective on June 4, 2014). Plaintiff argues that notice of the motions was provided on May 8, 2014 and May 19, 2014, but these are the dates of letters stating objections to the subpoenas, not notice of Plaintiff’s motion to compel. (See Motion, Kashani Decl., Exhs. 7 and 9.)

Significantly, however, Section 1985.3(g) also provides: “The failure to provide notice to the deposition officer shall not invalidate the motion to quash or modify the subpoena duces tecum but may be raised by the deposition officer as an affirmative defense in any action for liability for improper release of records.” Accordingly, the lack of timely notice to the deposition officer does not affect the validity of Plaintiff’s Motion to Compel.

Legal Standard

A motion to quash a deposition subpoena may be made pursuant Code of Civil Procedure Section 1987.1, which provides: “When a subpoena requires the attendance of a witness or the production of [documents], the court, upon motion reasonably made by the party…may make an order quashing the subpoena entirely, modifying it or directing compliance with it…including protective orders.” “The court may make any other order as may be appropriate to protect the parties, the witness, or the consumer from unreasonable or oppressive demands including unreasonable violations of a witness’s or consumer’s right of privacy.” (CCP §§ 1987.1, 1985.3.)

Meet and Confer

It appears from the pleadings that the parties’ attorneys met and conferred regarding the scope of these subpoenas, as well as other subpoenas served by Defendant. (Kashani Decl., ¶¶6-10 and Exhs. 3-9.) (Opp., Rodriguez Decl. (“Rodriguez Decl.”) ¶¶9-10 and Exhs. E-L.) By letter dated May 8, 2014, Plaintiff offered to withdraw her objection to the subpoena for her medical records if the request was limited to 10 years prior to her injury and to specific parts of her body, including her neck, waist, lower and upper back, and knee. (Ex. 7 to Kashani Decl.) However, by letter dated May 15, 2014, defendant’s counsel responded, “we respectfully decline your invitation to modify our subpoena and will stand on the language contained therein.” (Ex. 8 to Kashani Decl.) By letter dated May 19, 2014, Plaintiff objected to production of her employment records, but it does not appear that any compromise offer was made as to these records.

Scope of Subpoenas

Plaintiff objects that the deposition subpoenas of her employer and medical care providers are overbroad in that they seek records without any time limitation or limitation as to what injuries she allegedly sustained in the motor vehicle accident. Plaintiff contends that the subpoenas violate her right to privacy in her medical records and that any disclosure of private information must be narrowly circumscribed and proceed in the least intrusive manner possible. Defendant argues that the scope of discovery is broad, and that it is therefore entitled to obtain information reasonably calculated to lead to the discovery of admissible evidence. However, this position is contrary to well-established law limiting discovery into private matters.

As the Court held in Britt v. Superior Court (1978) 20 Cal.3d 844, 864:

[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 this lawsuit, they are entitled to retain the confidentiality of all unrelated medical or psychotherapeutic treatment they may have undergone in the past.

In seeking Plaintiff’s privileged medical or employment records, Defendant cannot simply seek evidence that may be relevant to this action or may lead to admissible evidence. Rather, when seeking information protected by the right of privacy, Defendant must show that the records are directly relevant to the case. (Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 524-25.) Once the Court determines that the records are directly relevant to the action, it must carefully balance the need for discovery against the right of privacy. (Id. at 525.) Finally, the party seeking the discovery must show that the information cannot be obtained through depositions or non-confidential sources, and if discovery is allowed it must be minimally intrusive. (Harding Lawson Assocs. v. Superior Court (1992) 7 Cal.App.4th 1008, 1014.)

Employment Records

Defendant seeks to justify his subpoena for Plaintiff’s employment records by the fact that Plaintiff claimed $1 million in damages for lost wages and $1 million in lost future earning capacity in her statement of damages. (See Opp at 3, Opp. Request for Judicial Notice, Exh. 2.) However, Plaintiff’s counsel subsequently stated that Plaintiff was no longer seeking lost earnings. (Rodriguez Decl., Exh. N.) Defendant also acknowledges in his Opposition that Plaintiff admitted that she did not incur any wage loss in connection with the accident. (Opposition at 2 n.1.)

Given the response in the request for admissions and representation by Plaintiff’s counsel, Defendant has not made a sufficient showing to support production of Plaintiff’s employment records to investigate her claim for lost wages. To the extent Defendant believes there is any uncertainty regarding whether Plaintiff is seeking lost wages or earning capacity as a result of this action, Defendant can propound contention interrogatories to Plaintiff, which would be less intrusive than production of all of her employment records.

Defendant also cites to a work-related injury as a basis for subpoenaing Plaintiff’s medical records. (Rodriguez Decl. Exh. G, p. 2.) Plaintiff, however, persuasively argues in her Reply that the reference to a work-related injury in medical records already produced by Plaintiff was an error. Specifically, the record reflecting a work-injury (“Mechanism of injury: Injury occurred at work”) states on the same page that the date of injury was November 6, 2012, which was the date of Plaintiff’s motor vehicle accident. (Reply, Exh. 2, p.2.) It appears, therefore, that the reference to a work-injury in Plaintiff’s medical records was in error.

Plaintiff’s employment records, therefore are not relevant to the issues in this case and the May 1, 2015 subpoena to “BCI Coca-Cola Bottling Company of Los Angeles,” should be quashed.

Medical Records

The subpoenas directed to Plaintiff’s healthcare providers are broadly worded to request all of Plaintiff’s medical records without any limitations on time or type of treatment. (Kashani Decl., Exhs. 1-2.) In response to the Motion, Defendant points out that Plaintiff’s claimed injuries have not remained consistent. During a phone conversation regarding the subpoenas in April 2014, Plaintiff’s counsel stated she was only claiming a lower back injury. (See Rodriguez Decl., Exh. G, p. 2.) The medical records in Defendant’s possession at that time, however, indicate that Plaintiff complained of pain in her neck, lower, middle and upper back, and knee. (Rodriguez Decl., Exh. B, pp. 40, 43 of 111.) (Reply, Exh. 2, pp. 1-2.) Plaintiff’s responses to form interrogatories in April 2014 also state that she sustained injury to her neck, waist, lower and upper back. (Rodriguez Decl., Exhs. O-P, Response No. 6.2.) Additionally, Plaintiff injured her knee while attending a Zumba class. (Rodriguez Decl., Exh. B, p. 40 of 111.)

However, to the extent the subpoena to Plaintiff’s medical provider seeks records without limitation to the type of injury or period of time, it is overbroad. Defendant’s evidence clearly supports his right to seek records as to the parts of Plaintiff’s body at issue in this action, i.e., limited to Plaintiff’s right knee, waist, back and neck. Indeed, this was precisely the compromise that Plaintiff had proposed in her May 8, 2014 letter, but which was rejected by Defendant.
Defendant’s citation to the broader discovery rule is incorrect. As explained above, records involving the right of privacy, even where medical issues are relevant to the case, can only be obtained if directly relevant.

Finally, the time range of the records sought is overbroad. Defendant offers no evidence to support seeking Plaintiff’s records beyond the past ten years, when there is no indication she had any injury in that time frame, let alone prior to the motor vehicle accident. Defendant refers to treatment Plaintiff received by an orthopedic physician at the time the accident occurred (Opp., p. 6:8-11) but there is no evidence of this treatment. Plaintiff has indicated a willingness to limit the records produced to ten years prior to the date of the accident, which is itself a lengthy period of time.

Therefore, the Court orders that the May 5, 2014 subpoena to “MBC Systems I Medical Network: Southern California Sports Rehabilitation” be limited to production of records relevant to Plaintiff’s right knee, waist, back and neck, within the past ten years.
Sanctions

Both Plaintiff and Defendant seek sanctions against the other party in this case. Code of Civil Procedure section 1987.2 (a) provides that in “in making an order pursuant to motion made under subdivision (c) of Section 1987 or under 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.”

The Court finds that Defendant’s refusal to stipulate to narrow the request for medical records, and demand for production of a broad range of employment records, requiring the bringing of this Motion to Compel, was without substantial justification, and support an award of sanctions against Defendant and his attorneys. However, the request for $4,872 in sanctions is excessive. The Court orders that sanctions be paid by Defendant and his attorneys in the amount of $1,320 (five hours of attorney time at $250.00 per hour, plus $60 filing fee plus $10 parking) to Plaintiff within 20 days of service of this Order. (See Kashani Decl. ¶14.)

Plaintiff is ordered to give notice.

Dated: September 2, 2014

_______________________
Hon. Gail Ruderman Feuer
Judge of the Superior Court