Case Number: BC663829 Hearing Date: April 20, 2018 Dept: 34

SUBJECT: Motion to compel further deposition responses

Moving Party: Defendant County of Los Angeles

Resp. Party: Plaintiff Jane Doe

Defendant’s motion to compel the further depositions of Matthew Lawrence and Billy Hubbard is DENIED.

Defendant’s request to compel plaintiff’s deposition is MOOT.

The Court GRANTS defendant’s motion to compel plaintiff to sign the authorization form. However, the authorization shall explicitly provide that any records which contain communications subject to the marital communication privilege in Evidence Code section 980 must be redacted.

BACKGROUND:

Plaintiff commenced this action of 06/05/17. On 09/14/17, plaintiff filed a First Amended Complaint against defendants for: (1) violations of constitutional right of privacy; (2) intrusion into private affairs; (3) public disclosure of private facts; and (4) false light. Plaintiff alleges that she suffered a medical emergency in her home. Her husband, a Los Angeles County Sheriff, contacted the Sheriff’s department to request assistance. Plaintiff alleges that certain members of the Sheriff’s department thereafter disclosed the details of her emergency to other members of the Department and to the media.

ANALYSIS:

Defendant County of Los Angeles moves the Court for an order: (1) “compelling paramedics Matthew Lawrence and Billy Hubbard to provide further responses to Defendant’s deposition questions concerning their treatment of plaintiff”; (2) compelling plaintiff to attend her continued deposition within ten days; and (3) “compelling plaintiff to execute a partial waiver of her privacy rights in her medical and psychiatric records and information relevant to this case.” (See Notice of Motion, p. 2:7-13.)

The paramedics’ depositions

On 02/05/18, defendant took the depositions of Matthew Lawrence and Billy Hubbard. (See Motion, p. 2:1-2.) Both deponents are paramedics “who arrived at Plaintiff’s home during the medical emergency and transported her to the hospital.” (Id. at p. 1:24-25.) As a result, “they are critical percipient witnesses who witnessed Plaintiff’s conduct and condition, conversed with Plaintiff and provided medical treatment.” (Id. at p. 1:25-27.) At the depositions, plaintiff’s counsel raised “several objections based upon the privacy protections under HIPAA, the California Health and Welfare Code, and the Welfare and Institutions Code stating that answering any questions relating to the treatment of or conversations with Plaintiff would violate these three statutes.” (Id. at p. 2:7-10.) Plaintiff’s counsel also advised the deponents that answering questions about their interactions with plaintiff could expose them to criminal liability. (See Id. at p. 2:11-13.)

Defendant contends that, as a result of plaintiff’s counsel’s warnings, the deponents “were unwilling to even answer questions regarding interactions with Plaintiff outside of the treatment they provided to her, likely as a result of the fear induced by Plaintiff’s objections.” (Id. at p. 2:17-19.) Defendant further argues that plaintiff has put her own mental and physical health at issue in this case and that defendant is entitled to the paramedics’ testimony. (See Id. at p. 6:19-8:8.)

While defendant presents a strong argument that it is entitled to the paramedics’ deposition testimony, the issue is not properly before the Court.

“If a deponent fails to answer a deposition question . . . the examiner may either complete the examination on other matters or adjourn the deposition. In either event, if the examiner wants an answer to the question . . . the examiner must file a motion to compel within the time limit . . .” (Edmon & Karnow, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2017) ¶ 8:787; Code Civ. Proc. § 2025.480(b)-(k).) However, “Court rules require that the notice of motion to compel answers and all supporting papers be personally served on non-party deponents. Service by mail alone is not sufficient, ‘unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.’” (Edmon & Karnow, supra, at p. 8:797; Cal. Rules of Court, rule 3.1346.)

Mr. Lawrence and Mr. Hubbard are not parties to this action. There is no evidence that they have been served in any manner. The Proof of Service accompanying this motion indicates that only plaintiff’s counsel was served. Although plaintiff counsel’s actions are alleged to be the reason that defendant needs to compel the deponents’ answers, this fact does not relieve defendant of the duty to properly notice this motion.

Accordingly, the Court DENIES defendant’s request to compel Mr. Lawrence’s and Mr. Hubbard’s deposition testimony.

Jane Doe’s deposition

The parties represent that they have agreed on a deposition date and that this issue is now moot. (See Opposition, p. 2:2-4; Reply, p. 2:3-7.)

Privacy Waiver

Finally, defendant seeks an order compelling plaintiff to sign an authorization form that would allow her therapist, Dr. Hernandez-Maldonado, to disclose relevant records related to plaintiff’s treatment.

In response to Form Interrogatory 6.4, plaintiff identified Dr. Hernandez-Maldonado as her psychotherapist. (See Motion, p. 3:9-12; McNulty Decl., ¶ 18, Exh. E.) On 11/02/17, plaintiffs subpoenaed plaintiff’s records held by Dr. Hernandez-Maldonado. (Id. at p. 3:12-13.) On 12/13/17, Dr. Hernandez-Maldonado’s counsel sent the parties a letter indicating that “Dr. Hernandez-Maldonado would be unable to produce the subpoenaed records without a signed authorization from Plaintiff due to the psychotherapist-patient privilege and Plaintiff’s privacy rights. (Id. at p. 3:17-21; McNulty Decl., ¶ 22, Exh. G.)

Later that day, in response to the letter from Dr. Hernandez-Maldonado’s counsel, defendant “sent an email to Plaintiff with an attached authorization for the release of her psychiatric records and requesting her signature of the same.” (Motion, p. 3:22-24; McNulty Decl. ¶ 23, Exh. H.) The parties met-and-conferred regarding the authorization for nearly two months without resolving the issue. (See Motion, p. 3:22-4:11.) Then, “out of the blue, Plaintiff asserted that she could not sign any such authorization until the spousal/marital privilege issue is resolved.” (Motion, p. 4:11-12; McNulty Decl., ¶ 24, Exh. I.)

Defendant argues that plaintiff should be compelled to sign the authorization form because, “by bringing this present lawsuit arising from a medical emergency and seeking damages for mental and emotional injuries, Plaintiff has waived her privacy protections covering medical information related thereto.” (Motion, p. 8:20-22 [citing Vinson v. Superior Court (1987) 43 Cal.3d 833, 839-844.)

In her opposition, plaintiff fails to address the merits of defendant’s argument and mischaracterizes the instant motion as a motion to compel Dr. Hernandez-Maldonado’s compliance with the deposition subpoena. (See Opposition, p. 3:7-5:11.) While it is true that defendants served Dr. Hernandez-Maldonado with a deposition subpoena and that Dr. Hernandez-Maldonado objected on the grounds of psychotherapist-patient privilege, defendant is not asking the Court to override her objection. Implicit in Dr. Hernandez-Maldonado’s objection is that she would produce the subpoenaed records as soon as plaintiff executed the appropriate authorization form. Plaintiff cannot simply refuse to sign the authorization and then argue that defendant’s request is time-barred.

However, plaintiff further explains that “[a] key point of contention [has been] whether communications covered under Evidence Code section 980 should be redacted from the psychological records.” (Opposition, p. 5:14-15.) Plaintiff argues that section 980 “does not have any statute discussing waivers” and that both she and her husband, “as co-holders of the privilege, do exercise their rights under section 980.” (Id. at p. 5:25-6:2.)

Evidence Code section 980 provides:

“Subject to Section 912 and except as otherwise provided in this article, a spouse has a privilege during the marital or domestic partnership relationship and afterwards to refuse to disclose, and to prevent another from disclosing, a communication if he or she claims the privilege and the communication was made in confidence between him or her and the other spouse while they were spouses.”

(Evid. Code § 980.) In contrast to the spousal testimonial privilege, the confidential communications privilege “belongs to each spouse; hence, even if a spouse is willing to be called as a witness, the other spouse may assert the § 980 privilege to bar the witness spouse from testifying to confidential marital communications.” (Wegner et al., supra, at ¶ 8:2323; People v. Dorsey (1975) 46 Cal.App.3d 706, 717.)

Evidence Code section 912 provides that “[a] privilege predicated on confidential communications in a protected relationship . . . may be waived by voluntarily abandoning the secrecy that the privilege protects. (Id. at ¶ 8:1885; Evid. Code ¶ 912(a).) Additionally, there are some exceptions to the marital communication privilege:

The “crime-fraud” exception removes the privilege for confidential communications between spouses if the communication was made “to enable or aid anyone to commit or plan to commit” a crime or fraud.” (Wegner, et al., supra, at ¶ 8:2366.)

There is no privilege for confidential marital communications in a proceeding to “commit” either spouse “under the control of another because of the spouse’s alleged mental or physical condition.” (Id. at ¶ 8:2369.)

The privilege does not apply in proceedings between the spouses, in juvenile court proceedings, in certain criminal proceedings, and in law enforcement administrative investigations. (Id. at ¶¶ 8:2370, 8:2371, 8:2372, 8:2378.)

Defendant has not presented any argument or authority that these specific waivers or exceptions to the confidential marital communication privilege apply in this case. While defendant reasonably concludes that plaintiff has waived her own privacy interest by putting her mental health at issue in this case, defendant presents no argument — other than to complain that defendant’s ability to obtain the records has been “severely hampered” — to suggest that the marital communication privilege has been waived. (See Motion, p. 4:11-15.)

Accordingly, the Court GRANTS defendant’s request and orders plaintiff to sign the authorization form. However, the authorization shall explicitly provide that any records which contain communications subject to the marital communication privilege in Evidence Code section 980 must be redacted.

The Court orders counsel to meet-and-confer to determine how to ensure that any production of documents from Dr. Hernandez-Maldonado is correctly redacted.