Case Number: BC674806 Hearing Date: March 08, 2018 Dept: 92

JOHN SOLANO, an Individual,

Plaintiff,

vs.

YONG OK KIM, et al.

Defendants.

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Case No.: BC674806

[TENTATIVE] ORDER GRANTING IN PART PLAINTIFF’S MOTION TO QUASH DEPO SUBPENAS

Dept. 92

1:30 p.m.

March 8, 2018

Plaintiff John Solano’s Motion to Quash is GRANTED in part. The depo subpenas are modified as provided herein.

Plaintiff John Solano brought suit on September 5, 2017, alleging she tripped and fell on a staircase inside property owned and managed by Defendants Yong Ok Kim, Bee Investment, Inc., Kenny Chung, Calusaa Park, NextGo Investment, Inc., John Lee, and Joshua Choung.

Defendants initially sought to subpoena medical records from Plaintiff’s medical providers on November 3, 2017. (Kim Decl., Exh. B.) Plaintiff objected, and sent a meet and confer letter on November 10, 2017, seeking to narrow the scope of the subpoenas. (Quiroga Decl. ¶ 5.) The letter asserted that the subpenas were overbroad and impermissibly sought to invade Plaintiff’s privacy by seeking records of “all” treatment instead of limiting the scope to treatment for the areas of his body which he alleged in form interrogatory responses were injured in the subject accident. On November 15, Defendants proposed narrowing the scope of the request to the ten years prior to the incident, and agreed to withdraw subpoenas as to an out of state witness. (Kim Decl. ¶¶ 6-7.) Defendants also agreed to withdraw the subpoenas until after the Thanksgiving holiday, so that the parties could further meet and confer. (Kim Decl. ¶ 7.)

Throughout December, Defendants sought to further meet and confer via both telephone and letters, without receiving any responses from Plaintiff. (Kim Decl. ¶¶ 8-9; Quiroga Decl. ¶¶ 6-7.) Defendants did not agree that the subpenas had to be narrowly drafted to seek only records of the specific body areas Plaintiff claims were injured. On January 8, 2018, Defendants again issued the subpoenas. (Kim Decl. 10; Quiroga Decl. ¶ 8.)

On January 17, 2018, Plaintiff again objected and again served a meet and confer letter regarding those objections. (Quiroga Decl. ¶ 9.) Defendants responded on January 24, 2018. (Kim Decl. ¶ 12; Quiroga Decl. ¶10.) These letters were similar to those exchanged in Nov. 2017.

In Plaintiff’s discovery responses, he delineated his injuries from the incident as follows:

Headaches, neck, back, both shoulders, right shoulder scarring and deformities, right rotator cuff tear, both arms, coccyx, tailbone, right hip, sciatica, anxiety (secondary to orthopedic injuries), depression (secondary to orthopedic injuries), and emotional injuries (pain and suffering) secondary to orthopedic injuries.

(Quiroga Decl., Exh. 1.)

Defendants’ subpoenas, however, seek:

All documents, records and writing, including but not limited to, paramedic and ambulance records; itemized statements of the billing charges, insurance records and claims; medical records and x-rays, MRI’s, CT scans, a complete list of film and/or digital diagnostic imaging inventory, pathology records, pathology reports, and pathology lab results pertaining to the care, treatment, and examination of Juan Solano, ADA John Solano . . . from 09/10/2005 to the present.

(Kim Decl., Exh. G.)

Plaintiff argues this request invades his right to privacy due to it being overbroad.

Here, there is no dispute Plaintiff has a constitutional right to privacy regarding his medical records. Where a party brings a personal injury action, however, the Court must determine the extent to which that right to privacy has been waived.

[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.

. . .

It should be understood, of course, that insofar as a number of injuries or illnesses . . . have contributed to a medical condition placed in issue by a plaintiff, defendant is entitled to obtain information as to all such injuries or illnesses. Thus, for example, if a plaintiff claims that the airport operations have damaged his respiratory system, plaintiff would be obliged to disclose all medical information relating to his respiratory condition and could not limit discovery simply to those airport-related incidents which have allegedly impaired his condition.

(Britt v. Superior Court (1978) 20 Cal.3d 844, 864, fn. 9.)

In determining whether one has waived the right of privacy by bringing suit, although there may be an implicit partial waiver, the scope of such waiver must be narrowly construed so that plaintiffs will not be unduly deterred from instituting lawsuits by fear of exposure of private activities. (Vinson v. Superior Court (1987) 43 Cal.3d 833, 842.) An implicit waiver of a party’s constitutional rights encompasses only discovery directly relevant to the plaintiff’s claim and essential to the fair resolution of the lawsuit. (Id.)

Plaintiff provides no proposal in the motion as to how the instant subpoenas could more appropriately be narrowed to insure only directly relevant information is released. However, in meet and confer letters, Plaintiff proposed narrowing the request to only include those areas of the body identified by Plaintiff as being at issue.

Accordingly, Plaintiff’s motion to quash is GRANTED, in part. The subpenas at issue shall be deemed modified to seek only the following:

All documents, records and writings, including but not limited to, paramedic and ambulance records; itemized statements of the billing charges, insurance records and claims; medical records and x-rays, MRI’s, CT scans, a complete list of film and/or digital diagnostic imaging inventory, pathology records, pathology reports, and pathology lab results pertaining to the care, treatment, and examination of Juan Solano, ADA John Solano for injuries relating to the head, neck, back, shoulders, rotator cuffs, arms, coccyx, tailbone, hips, or sciatica, from 09/05/2005 to the present.

(The Court notes that Plaintiff also identifies anxiety, depression, and emotional injuries as injuries arising from the incident. In its opposition, Defendants do not argue that such injuries should be included on the instant subpoenas, and the Court therefore does not include them.)

Defendants express concern that the subpoenaed parties will be able to appropriately sift through the documents to satisfy these requests. While this may be a practical issue, it is nevertheless required of the witnesses under the foregoing authorities.

Plaintiff seeks sanctions pursuant to CCP § 1987.2, which states, “(a) Except as specified in subdivision (c), 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 the motion was opposed without substantial justification. The Court allows 8 hours of attorney time at $300/hour for a total award of $2400 against Defendants and their attorneys of record, payable to Plaintiff, by and through his attorneys of record, payable within 20 days.

Moving party to provide notice.

Dated this 8th day of March, 2018

Hon. Marc Gross

Judge of the Superior Court