Case Number: BC679638 Hearing Date: March 01, 2019 Dept: NCD

TENTATIVE RULING

Calendar: 4

Date: 3/1/19

Case No: BC 679638 Trial Date: January 21, 2020

Case Name: Cauble, et al. v. Ridgeview Drive Ranch, Inc.

MOTION TO COMPEL COMPLIANCE WITH SUBPOENA

(CCP § 2020.240, 2025.450, et seq.)

Moving Party: Defendant Ridgeview Drive Ranch, Inc. dba Ridgeview

Ranch Treatment Center

Responding Party: Plaintiffs Christina Cauble and Christopher Cauble

RELIEF REQUESTED:

Order compelling nonparty Joyce Lauterback, MFT to comply with deposition subpoena for production of business records

FACTUAL BACKGROUND:

Plaintiffs Christina Cauble and Christopher Cauble allege that they are the mother and father of decedent Johnathan Cauble. Plaintiffs allege that in 2016 decedent Johnathan consulted and engaged for compensation the services of defendant Ridgeview Drive Ranch, Inc. dba Ridgeview Ranch Treatment Center, to provide drug addiction counseling services, and that decedent was eventually transferred to the staffed sober living program of defendants to provide additional addiction recovery support, supervision, protection and, if necessary, referral for immediate detoxification or life-saving treatment and like services.

Plaintiffs allege that defendants failed to use the level of care that other reasonably competent addiction facilities and staff members would provide in similar circumstances, and they failed to refer decedent for immediate detoxification and life-saving treatment when decedent was obviously intoxicated and a danger to himself and others on the premises of the sober living facility, as a result of which decedent suffered severe and permanent injuries from which he never recovered and which were a substantial factor in causing his death.

ANALYSIS:

Under CCP section 2017.010, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action…if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.”

CCP § 2020.220(c) provides that

“Personal service of any deposition subpoena is effective to require all of the following of any deponent who is a resident of California at the time of service

(1) Personal attendance and testimony, if the subpoena so specifies.

(2) Any specified production, inspection, testing and sampling…”

CCP section 2020.240 provides: “A deponent who disobeys a deposition subpoena in any manner described in subdivision (c) of Section 2020.220 may be punished for contempt under Chapter 7 (commencing with Section 2023.010) without the necessity of a prior order of court directing compliance by the witness.”

Under CCP section 2025.480:

“(a) If a deponent fails to answer any question or to produce any document or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.”

CCP § 1987.1 provides in pertinent part:

“When a subpoena requires the attendance of a witness or the production of books, documents or other things before a court, upon motion reasonably made by the party, the witness, or any consumer described in Section 1985.3, 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 such 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 parties, the witness, or the consumer from unreasonable or oppressive demands including unreasonable violations of a witness’ or consumer’s right of privacy”

Here, the subpoena was served on the deponent, Joyce Lauterback, MFT, and counsel for plaintiff has mailed written objection on the basis of violation of Mrs. Cauble’s privacy, and the likelihood matters unrelated to the damages alleged in this action are recorded in the psychological counseling records.

The subpoena seeks:

“ANY AND ALL PSYCHOLOGICAL RECORDS , including but not limited to, office notes,session notes, hospital records, medical records, assessments, therapy and clinical

records, tests and test results, diagnoses, prognoses, correspondence.

Any and all billing records, including but not limited to Billing Statements complete with

CPT / diagnostic codes, any type of payment records, previous or current balances, or

itemized statements; documentation that reflects the amounts(s) actually accepted as

payment in full of the charges billed; any type of documentation that reflects any kind of

reduction, insurance adjustment, and/or write-off of all or any portion of the amount

charged or normally charged; including those existing in electronic or magnetic form, in the possession, custody or control of the said witness, and every such billing record to which the witness may have access.

Under Evidence Code § 990 and 1010, a patient enjoys a privilege to refuse to disclose any “confidential communication” between himself and a treating physician. Section 996 provides an exception where the patient is a litigant, stating that there “is no privilege… as to a communications relevant to an issue concerning the condition of the patient is such issue has been tendered by…[the] patient.”

In Britt v. Superior Court (1978) 20 Cal.3d 844, the California Supreme Court reversed a trial court’s order granting a motion to compel discovery of a plaintiff homeowner’s medical histories in a nuisance and personal injury case against an airport, concluding:

“While [plaintiffs] 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 or all unrelated medical or psychotherapeutic treatment they may have undergone in the past.”

Britt, at 862.

In Britt, the Supreme Court noted that where private information is sought, the burden is on the party seeking discovery to show a particularized need for the information sought, that the information is directly relevant to the cause of action or defense. Britt, at 859-862.

The California Supreme Court in In re Lifschutz (1970) 2 Cal.3d 415, addressed the issue of psychiatric records sought of a plaintiff which had initiated an action seeking damages for emotional distress. The court cautioned that in such a case, under Evidence Code section 1016, “disclosure can be compelled only with respect to those mental conditions the patient-litigant has disclosed by bringing an action in which they are in issue.” In re Lifschutz, at 435, emphasis in the original.

The Supreme Court in Lifschutz provided the following guidance in evaluating this issue:

“Because only the patient, and not the party seeking disclosure, knows both the nature of the ailments for which recovery is sought and the general content of the psychotherapeutic communications, the burden rests upon the patient initially to submit some showing that a given confidential communication is not directly related to the issue he has tendered to the court. (Cf. Evid. Code, § 404 (person claiming privilege against incrimination bears burden of showing proffered evidence might tend to incriminate him).) A patient may have to delimit his claimed [*437] “mental or emotional distress” or explain, in general terms, the object of the psychotherapy 23 in order to illustrate that it is not reasonably probable that the psychotherapeutic communications sought are directly relevant to the mental condition that he has placed in issue. In determining whether communications sufficiently relate to the mental condition at issue to require disclosure, the court should heed the basic privacy interests involved in the privilege (cf. Wiesenberger v. W. E. Hutton & Co. (S.D.N.Y. 1964) 35 F.R.D. 556, 557-558); in general, the statutory psychotherapist-patient privilege “is to be liberally construed in favor of the patient.” (Cf. Carlton v. Superior Court, supra, 261 Cal.App.2d 282, 288; Newell v. Newell (1956) 146 Cal.App.2d 166, 177 [303 P.2d 848].)

Even when the confidential communication is directly relevant to a mental condition tendered by the patient, and is therefore not privileged, the codes provide a variety of protections that remain available to aid in safeguarding the privacy of the patient. When inquiry into the confidential relationship takes place before trial during discovery, as in the instant case, the patient or psychotherapist may apply to the trial court for a protective order to limit the scope of the inquiry or to regulate the procedure of the inquiry so as to best preserve the rights of the patient.”

In re Lifschutz, at 436-437, footnotes omitted.

Here, defendants have provided plaintiff’s responses to interrogatories, in which she identifies her injuries suffered:

“Objection. This interrogatory calls for a narrative response. However, without

waiving said objections, plaintiff responds as follows: Severe emotional impact and

sadness from the loss of love, companionship, society, comfort and support of my

son, Johnathan. Since my son, Johnny, died, my primary care doctor has increased the

antidepressant he put me on. He doubled the dose in December 2017. He warned me

of Serotonin Syndrome, but said , I am so profoundly sad . After about 3 weeks on the

new dose, I did, in fact, get Serotonin syndrome: severe ringing in my ears and a

constant low grade headache. I have been on a lower dose now, but as of January 19,

2018, continue to have ringing in my ears.

The Holidays were unbearable. I had no interest in decorating, getting a tree,

or exchanging gifts. I cried uncontrollably for 10 days and found it extremely difficult

to get out of bed.

When my Dad received the news of Johnny’s passing, it hit hint hard. He

passed away December 7, 2016, one day before Johnny’s funeral. I feel he just could

not cope with Johnny’s death.

I continue to cry on a daily basis. I am often disappointed that I woke up in

the morning. About 2 weeks after the passing of my son and father, I attempted to

commit suicide. I felt I could no longer go on without them. It has been such a

struggle for me and continues to be a struggle. I no longer go out, unless I have to, or

from incessant prodding from family members. I am no longer the happy, optimistic

person I once was. I no longer look at life the same way. The son I have left has said

he does not want children. My only hope for grandchildren was my Johnny. His best

friend and girlfriend came to see me December 22, 2017, saying they had news. They wanted to tell me before telling friends, they were having a baby. While I am genuinely happy for them, I also felt sad at the same time, since I will never be a grandmother.”

[Ex. D, Response to Interrogatory 6.2].

The opposition does not attempt to limit the issues as outlined in In re Lifschutz. The motion and opposition seek all of the records, and plaintiff suggests that none of the records be ordered produced. The opposition also suggests that plaintiff will withdraw certain details describing the depth of her injuries if it will assist in having the motion denied, including references to her suicide attempt, the doubling of her anti-depressant, and the serotonin syndrome impact of that increased dosage.

It is also suggested that the court conduct an in camera review of the documents, or order the therapist to redact all notes referencing matter unrelated to the wrongful death damages.

What must happen here is that plaintiff, as the patient, must identify areas of her damages, to which she is willing to remain limited at trial, and defendant can then challenge or add to such a listing. It should not have been left to the court or the therapist to delineate the scope of the mental health injuries without the guidance of plaintiff. A protective order will also issue to limit the use of the records to this case only.

The parties are ordered to meet and confer to reach some acceptable level of disclosure for this case given the serious emotional distress claims being pursued by plaintiff in this lawsuit. The court also requires defendant to explain why the information concerning the emotional distress cannot be obtained directly from plaintiff, and why this therapist records source is necessary to supplement plaintiff’s own discovery responses.

Overall, as it now stands, the issues which are directly implicated appear to include the following: records concerning sadness from the loss of her son, their relationship, her antidepressant prescription and use, serotonin syndrome, suicide attempt, crying, inability to get out of bed, reluctance to go out, headaches, ringing in ears, and general outlook on life.

RULING:

Motion of defendant Ridgeview Drive Ranch, Inc. dba Ridgeview Ranch Treatment Center for an Order Compelling Joyce Lauterback, MFT to Comply with Deposition Subpoena:

The parties are ordered to the hallway to meet and confer concerning the subject areas concerning which the deponent will be required to disclose records limited to the issues being pursued in this lawsuit.

Motion is GRANTED in part. The court finds that defendant and the papers have established that a portion of the information sought from the deponent is directly relevant to issues raised in this matter, warranting a limited intrusion into plaintiff’s privacy for purposes of discovery. The subpoena is limited to providing information from the records concerning, from the period of time from ________ to the present, including records concerning the patient’s sadness from the loss of her son, her relationship with her son, her antidepressant prescription and use, serotonin syndrome, suicide attempt, crying, inability to get out of bed, reluctance to go out, headaches, ringing in ears, and general outlook on life. The deponent may redact information which does not fall within these categories, but these categories would seem to cover the gamut of all mental health records, given the broadness of plaintiff’s interrogatory responses. Any emotional distress claim does not easily lend itself to compartmentalization.

The court will issue a protective order pursuant to which the records are to be used and disseminated only for purposes of this litigation, and returned to plaintiff upon the conclusion of this matter.

Plaintiff’s attorney is ordered to prepare the protective order.