E. Robinson v. P. Naruns, et al. CASE NO. 113CV249369
DATE: 15 May 2014 TIME: 9:00 LINE NUMBER: 10
This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Wednesday 14 May 2014. Please specify the issue to be contested when calling the Court and counsel.

On 15 May 2014, the motion of plaintiff Elizabeth J. Robinson, Ph.D. (“Plaintiff”) to quash and/or modify subpoenas and for a protective order was argued and submitted. Defendants Shahih Fazilat, M.D. (“Fazilat”), Peter Naruns, M.D. (“Naruns”) and Rakesh Patel, M.D. (“Patel”) each filed formal oppositions, in which they each requested monetary sanctions. Howard Rice, M.D. (“Rice”) also filed a formal opposition to the motion.

Statement of Facts

This is a medical malpractice action arising from the alleged negligent medical treatment of Plaintiff for breast cancer between 6 January 2011 and 30 September 2012. Plaintiff alleges that Fazilat, Naruns, Patel, and Rice (collectively, “Defendants”) failed to exercise the degree of skill, knowledge, and care ordinarily possessed and exercised by medical professionals under similar circumstances. She further alleges that Defendants failed to advise her of the consequences of the treatment they provided, and as a result of the breaches of the standard of care, she had to undergo multiple corrective surgeries and incur significant expense. In her complaint, Plaintiff asserts two causes of action for professional negligence and lack of informed consent.

Discovery Dispute

Between 15 January 2014 and 17 April 2014, Defendants issued a number of subpoenas to Plaintiff’s medical providers seeking medical and billing records.

On 21 April 2014, Plaintiff filed her motion to quash and/or modify Defendants’ subpoenas and for a protective order. She claims that the subpoenas are improper because they are overbroad and seek irrelevant information.

On 1 May 2014, Rice filed his opposition to the motion. On 2 May 2014, Fazilat, Naruns and Patel filed their respective oppositions to the motion.

Discussion

I. Motion to Quash or Modify Subpoenas and for a Protective Order

Plaintiff moves to quash and/or modify Defendants’ subpoenas on the grounds that some of the records sought are irrelevant and the subpoenas are overbroad. The subpoenas at issue seek documents relating to prescriptions, medical tests, and billing and insurance from a number of medical providers. Plaintiff also seeks a protective order to prevent the dissemination of the confidential medical records subpoenaed by Defendants.

A. Legal Standard

The court may, “upon motion reasonably made by a [party] … make an order quashing [a] subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.” (Code Civ. Proc., § 1987.1, subds. (a) and (b)(1).) In addition, the court may make “any other order as may be appropriate to protect the [moving party] from unreasonable demands.” (Code Civ. Proc., § 1987.1, subd. (a).)

B. Procedural Issues

As an initial matter, the parties raise a host of procedural defects related to the present motion and the service of the subpoenas.

1. Inadequate Notice

Fazilat contends that Plaintiff’s motion is procedurally defective and should be denied because she failed to serve him with the notice of motion and supporting papers within 16 court days before the hearing.

Code of Civil Procedure section 1005, subdivision (b) states that all moving and supporting papers are to be filed and served 16 court days before the hearing. (See Cal. Rules of Court, rule 3.1300(d) [all moving and supporting papers must be served and filed in accordance with Code of Civil Procedure section 1005].) This time is extended by 5 calendar days if the notice of motion is served by mail. The hearing on this motion was originally scheduled for 16 May 2014. Based on that hearing date, Plaintiff’s motion and supporting papers were to be filed and served on or before 18 April 2014. However, Plaintiff served her papers on 21 April 2014. Thus, Plaintiff did not provide Fazilat with sufficient notice of the motion.

Notwithstanding this defect, Fazilat has submitted a detailed opposition addressing the motion on its merits, and it is well settled that a party’s opposition to the merits of a motion is a waiver of any defects in the sufficiency of the notice period. (See Carlton v. Quint (2000) 77 Cal.App.4th 690, 697-699.) Therefore, the Court finds that Fazilat waived the issue of inadequate notice.

2. Separate Statement

Fazilat, Patel and Naruns argue that Plaintiff’s motion is defective because it is not accompanied by a separate statement. Pursuant to California Rules of Court, rule 3.1345(a)(5), a motion to quash the production of documents attendant to a subpoena must be accompanied by a separate statement. Here, Plaintiff did not file such a separate statement, and her motion is therefore defective.

The court has discretion, but is not required, to deny a motion to quash for failure to provide a separate statement. (See Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893.) Here, while Plaintiff failed to include a separate statement, she has provided the subpoenas for the Court’s review, the issues raised in the motion are narrow, and the parties’ arguments are fully developed in their moving papers. Accordingly, the lack of a separate statement will not prevent the Court from addressing the merits of the motion.

3. Meet and Confer

Naruns contends that Plaintiff did not engage in adequate meet-and-confer efforts prior to filing her motion. Code of Civil Procedure section 1987.1, however, does not require a party to meet and confer before filing a motion to quash and/or modify subpoenas. Therefore, Naruns’ argument is without merit.

4. Timeliness of Motion to Quash

Rice, Fazilat and Naruns argue that the present motion to quash is untimely as it was filed after the date of production for several of the subpoenas.

Pursuant to Code of Civil Procedure section 1985.3, subdivision (g), a motion to quash by a consumer must be served on the witness and the deposition officer at least five days before the date set for production of the subpoenaed records. The five-day limitation, however, is not jurisdictional. (See Slagle v. Superior Court (1989) 211 Cal.App.3d 1309, 1312.) In Slagle, supra, the Court of Appeal reasoned that the time limitation was solely “designed to guide those involved as to when the witness with the records may safely honor or not honor the subpoena when the consumer objects.” (Id.) Thus, a trial court may grant a motion to quash served after the date set for production. (Id.) Accordingly, Plaintiff’s failure to file her motion prior to the date of production of several of the subpoenas does not prevent the Court from reaching the merits of this motion.

5. Defective Subpoenas

Plaintiff contends that Patel failed to serve on her a complete copy of the subpoena issued to Western Radiation Oncology, and Fazilat did not serve on her copies of the subpoenas issued to Midpeninsual Surgical Associates and El Camino GI Associates.

With regard to Patel’s subpoena to Western Radiation Oncology, Plaintiff’s counsel, William C. Milks, III, declares that the subpoena did not include an “Attachment 3”, a detailed description of the records sought. In his opposition, Patel does not address this issue.

Pursuant to Code of Civil Procedure section 1985.3, subdivision (b), prior to the date specified for the production of records, the subpoenaing party shall serve a copy of the subpoena on a consumer whose personal records are being sought. The purpose of this procedure is to give the consumer the opportunity to protect his or her right to privacy by objecting to the disclosure of the personal records. (See Sasson v. Katash (1983) 146 Cal.App.3d 119, 124.)

Here, it is undisputed that Plaintiff is a consumer for the purposes of Code of Civil Procedure section 1985.3, and Patel does not contest that the copy of the subpoena served on Plaintiff did not include a description of the records sought. Patel, thus, did not comply with the requirements of Code of Civil Procedure section 1985.3, and his subpoena to Western Radiation Oncology is defective. As Plaintiff has been unable to review a full copy of the subpoena, she has not had the opportunity to determine whether an objection is necessary to prevent the disclosure of her personal records. Accordingly, the motion to quash Patel’s subpoena to Western Radiation Oncology is GRANTED.

In regards to Fazilat’s subpoenas to Midpeninsual Surgical Associates and El Camino GI Associates, Plaintiff contends that Pazilat failed to serve on her a copy of these subpoenas. In opposition, Fazilat indicates that copies of the subpoenas were originally served on Plaintiff on 12 November 2013.

In support of this argument, Fazilat attaches to his motion a letter from Plaintiff’s counsel dated 8 December 2013. The letter acknowledges receipt of the two subpoenas at issue and proposes that they be limited as to time and scope. Therefore, as it appears that Plaintiff was served with copies of the subpoenas at issue, Fazilat’s subpoenas to Midpeninsual Surgical Associates and El Camino GI Associates are not defective.

C. Merits of Motion to Quash and/or Modify Subpoenas

Plaintiff argues that the subpoenas seeking her medical and billing records should be quashed because several of the subpoenas request irrelevant information and all of the subpoenas are overbroad.

1. Relevance Objections

Plaintiff contends that the records sought by the subpoenas served by Naruns and Fazilat on two health care providers, Accent on Aesthetics and Paul April, M.D., are irrelevant to the present matter.

Discovery is allowed for any matters that are not privileged, relevant to the subject matter involved in the action, and reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.) The “relevance to the subject matter” and “reasonably calculated to lead to discovery of admissible evidence” standards are applied liberally with any doubt generally resolved in favor of discovery. (Colonial Life & Acc. Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790.) Moreover, for discovery purposes, information is “relevant to the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.)

a. Accent on Aesthetics Subpoenas

With regard to the subpoenas served on Accent on Aesthetics, Plaintiff claims that the only medical services provided by Accent on Aesthetics related to facial cosmetic surgery and did not involve the prescription of any antibiotics. (See Milks Decl., ¶ 8.) She asserts that her present action is one for medical malpractice against Defendants for providing negligent treatment of her breast cancer and breast infection. She reasons that medical records related to facial cosmetic surgery therefore are not relevant.

In opposition, Naruns and Fazilat contend that her medical records are not limited to facial cosmetic surgery. According to the medical records already turned over to Naruns and Fazilat, Plaintiff listed Dr. Rosenberg, a doctor at Accent on Aesthetics, as the doctor who referred her to Naruns for breast cancer treatment. The records further disclose that Plaintiff consulted Dr. Rosenberg in connection with her breast infection and the condition of her breast implants. Therefore, Naruns and Fazilat reason that Dr. Rosenberg’s records will provide them with a better understanding of the early stages of the cancer and allow them to determine whether other medical professionals share responsibility for Plaintiff’s alleged injuries. Naruns and Fazilat’s arguments are persuasive.

The records sought will allow Naruns and Fazilat to uncover information concerning Plaintiff’s previous treatment for her breast infection and any difficulties stemming from her previously installed breast implants. This information, in turn, might assist Naruns and Fazilat in demonstrating that Plaintiff’s injuries do not wholly stem from their purportedly negligent conduct. Therefore, the objections to the subpoenas to Accent on Aesthetics on the ground of relevance are overruled.

b. Paul April, M.D. Subpoenas

In regards to the subpoenas served on Paul April, M.D., Plaintiff contends that she did not seek medical services from Dr. April relating to breast radiation therapy. Thus, she asserts that these records are not relevant to her action, which is premised on negligence in connection with breast cancer treatment.

In opposition, Naruns and Fazilat argue that the records sought are relevant. They contend that Dr. April served as Plaintiff’s primary care physician in 2011, and on at least two occasions, Plaintiff’s previous surgeon, James Lockhart, provided his reports concerning the diagnosis of breast cancer to Dr. April. Naruns and Fazilat reason that Dr. April therefore would be in possession of highly relevant records concerning the initial diagnosis of Plaintiff’s breast cancer and any subsequent referral to a cancer specialist.

In addition, Naruns and Fazilat assert that Dr. April’s records could shed further light on whether Plaintiff’s extensive and complicated medical history played a significant role in her alleged injuries. Based on the information already in their possession, Naruns and Fazilat are aware of a number of Plaintiff’s preexisting conditions, including allergies to certain antibiotics and a gastrointestinal condition. In addition, after her breast cancer diagnosis in 2010, Plaintiff contracted myasthenia gravis. To treat the condition, Plaintiff was prescribed steroids. Naruns and Fazilat contend that her preexisting conditions and the prescription for steroids would have diminished Plaintiff’s ability to heal and fight off infection. This information, in turn, would allow them to uncover evidence indicating that these conditions, rather than their own purportedly negligent conduct, were the primary cause of Plaintiff’s current injuries. They reason that Dr. April’s records therefore are likely to assist them in evaluating the case and preparing for trial. Naruns and Fazilat’s argument is meritorious.

As Plaintiff’s general practitioner, Dr. April is likely to be in possession of records substantiating any preexisting conditions that may have contributed to Plaintiff’s claimed injuries, as well as records concerning the diagnosis of Plaintiff’s breast cancer. Therefore, the records sought are relevant, and the objections to the subpoenas to Paul April, M.D. on the ground of relevance are overruled.

2. Overbreadth Objections

Plaintiff next contends that all of the subpoenas are overbroad because they are not limited to the treatment of her breasts and/or the prescription of antibiotics subsequent to 1 January 2010, the date of the initial biopsy. Plaintiff’s argument is without merit.

As discussed above, Plaintiff has an extensive and complicated medical history, including allergies to common antibiotics, susceptibility to infection, a preexisting gastrointestinal issue, and a medical condition that requires her to take steroids. Many of these conditions predate the initial biopsy of Plaintiff’s breasts and concern other parts of Plaintiff’s body. Defendants persuasively argue that they need to explore these conditions in order to discover whether they may have contributed to Plaintiff’s claimed injuries. Therefore, the subpoenas are not overbroad, and the objections on this ground are overruled.

D. Merits of Motion for Protective Order

Finally, Plaintiff seeks a protective order to prevent the dissemination of the medical records subpoenaed by Defendants. However, Plaintiff fails to provide any specific justification for the issuance of a protective order. As previously noted in this Court’s 18 April 2014 order, Defendants are prohibited by state and federal law from disseminating Plaintiff’s medical records for any unlawful purpose. (See Civ. Code, § 56.10, subd. (b)(8)(A) [provider of health care may not disclose medical information to the public without authorization or pursuant to a court order], 45 C.F.R. § 164.512(e)(1) [healthcare provider may not disclose medical information without formal discovery request or pursuant to court order].) Therefore, a protective order above and beyond these protections is unwarranted.

E. Conclusion

Based on the foregoing, the motion to quash and/or modify subpoenas and for a protective order is GRANTED as to the subpoena issued by Patel to Western Radiation Oncology. The motion is otherwise DENIED.

II. Requests for Monetary Sanctions

A. Fazilat’s Request for Monetary Sanctions

Fazilat makes a request for an award of monetary sanctions against Plaintiff and her counsel pursuant to Code of Civil Procedure section 1987.2. In making an order pursuant to 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 it finds that 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).) Here, Plaintiff was not substantially justified in making her motion. Therefore, Fazilat is entitled to an award of monetary sanctions against Plaintiff and/or her counsel.

Fazilat’s counsel, Nafija Weston, avers that she spent 3.5 hours drafting the opposition to this motion at a billing rate of $180 per hour (for a total of $630). The hourly rate and hours spent are reasonable. Fazilat also seeks to recoup a purported $60 filing fee. The Court does not charge a fee for filing an opposition. Therefore, this cost does not constitute a reasonable expense. Accordingly, Fazilat’s request for monetary sanctions against Plaintiff and her counsel is GRANTED IN PART in the amount of $630.

B. Patel’s Request for Monetary Sanctions

Patel makes a request for monetary sanctions against Plaintiff. Patel, however, does not provide a statutory basis for his request. Therefore, Patel’s request for monetary sanctions is DENIED.

C. Naruns’ Request for Monetary Sanctions

Naruns requests monetary sanctions against Plaintiff pursuant to Code of Civil Procedure sections 2023.010 and 2023.030. These two code sections do not provide a statutory basis for the award of monetary sanctions. First, Code of Civil Procedure section 2023.010 defines acts that constitute misuses of the discovery process, and does not itself set forth any provisions regarding the issuance of a monetary sanction.

Therefore, it does not provide a basis for an award of monetary sanctions. Second, Code of Civil Procedure section 2023.030 provides that sanctions may be imposed for misuses of the discovery process “[t]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title.” As such, Code of Civil Procedure section 2023.030 does not provide an independent basis for an award of sanctions.

Accordingly, Naruns’ request for monetary sanctions is DENIED.

Conclusion and Order

Plaintiff’s motion to quash and/or modify subpoenas and for a protective order is GRANTED IN PART and DENIED IN PART as follows:

(1) The motion to quash and/or modify the subpoenas issued by Fazilat and Naruns to Accent on Aesthetics, Valley Medical Oncology Consultants, Endocrinology Internal Medicine Group, Palo Alto Medical Foundation, Howard Rice, M.D., El Camino Hospital, Paul April, M.D., Surgical Associates, St. Francis Hospital, Assurant Health, and Express Scripts is DENIED. The subpoenaed entities shall produce all documents responsive to the subpoenas within 20 calendar days of the entry of this Order.
(2)
(3) The motion to quash and/or modify Fazilat’s subpoenas issued to Midpeninsula Surgical Associates, Kaiser/Trover Solutions, Elite Billing and Advanced Billing and Coding Services is DENIED. The subpoenaed entities shall produce all documents responsive to the subpoenas within 20 calendar days of the entry of this Order.
(4)
(5) The motion to quash and/or modify Naruns’ subpoenas issued to El Camino GI Medical Associates, Shahin Fazilat, M.D., and Western Radiation Oncology is DENIED. The subpoenaed entities shall produce all documents responsive to the subpoenas within 20 calendar days of the entry of this Order.
(6)
(7) The motion to quash and/or modify subpoenas issued by Rice and Patel to Shahin Fazilat, M.D. is DENIED. Shahin Fazilat, M.D. shall produce all documents responsive to the subpoenas within 20 calendar days of the entry of this Order.
(8)
(9) The motion to quash Patel’s subpoena issued to Western Radiation Oncology is GRANTED.
(10)
(11) The motion for a protective order is DENIED.

Fazilat’s request for monetary sanctions against Plaintiff and her counsel is GRANTED IN PART in the amount of $630. Accordingly, Plaintiff and/or her counsel shall pay $630 to Fazilat’s counsel within 20 calendar days of the filing of this Order.

Patel’s request for monetary sanctions is DENIED.

Naruns’ request for monetary sanctions is DENIED.