Case Number: BC657424 Hearing Date: October 23, 2019 Dept: 5

ORDER #1 of 3

Joseph Dean Terry, et al.,

Plaintiffs,

v.

meadowbrook meat company, inc., et al.,

Defendants.

Case No.: BC657424

Hearing Date: October 23, 2019

[TENTATIVE] order RE:

Motion TO ENFORCE SUBPOENAS

BACKGROUND

Plaintiffs Joseph Dean Terry and Jennifer Terry (collectively, “Plaintiffs”) filed this action against Defendant Meadowbrook Meat Company, Inc. and its driver, Ernesto Mejia, (collectively, “Defendants”) following a motor vehicle collision on or about February 21, 2016. Plaintiffs allege that Defendant’s driver made an unsafe turn and hit Joseph Dean Terry while he was riding his motorcycle. Joseph Terry’s wife, Jennifer Terry, filed a loss of consortium claim. Jennifer Terry alleges as follows:

Since February 24, 2016 to present, Plaintiff Jennifer Terry has suffered extreme emotional injuries on a daily basis. Prior to this incident, Plaintiff was taking medication for bi-polar disorder. She was emotionally stable and was able to take care of her family. This incident spiraled her mentally and emotionally out of control. After this incident, her symptoms became severe and unmanageable due to her increased stress, anxiety and worry for her husband’s life altering injuries. She felt extremely alone and abandoned. On approximately October 14, 2017, Plaintiff attempted to take her own life. Jennifer Terry was hospitalized and remained in a coma for eight days.

(Declaration of Peter J. Burfening Jr., Exh. A (Plaintiff Jennifer Terry’s Responses to the Special Interrogatories), at p. 4.) Defendants sought to obtain Jennifer Terry’s mental health records. Now, Defendant moves to compel third parties Santa Clarita Valley Therapy Services, Santa Clarita Mental Health Center, Valley Prevention Center, and Sean Coe, L.C.S.W. to comply with deposition subpoenas for the production of records about Plaintiff’s mental health care. Plaintiff opposes the motion, which is granted.

LEGAL STANDARD

Code of Civil Procedure section 1987.1 provides, “If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by [a party or a witness] . . . may make an order . . . directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.” (Code Civ. Proc., § 1987.1.)

DISCUSSION

Defendant subpoenaed Plaintiff’s records from Santa Clarita Valley Therapy Services, Santa Clarita Mental Health Center, Valley Prevention Center, and Sean Coe, L.C.S.W. Per Code of Civil Procedure section 1985.3, any records or data about an individual in the possession of a clinic or psychotherapist are personal records. (See Code Civ. Proc., § 1985.3, subd. (a)(1).) Prior to serving a subpoena on a third party for the production of personal records, the party seeking the discovery must serve a copy of the subpoena on the individual to whom the records pertain. (Code Civ. Proc., § 1985.3, subd. (e.) In this case, Plaintiff objected after Defendant served Plaintiff with copies of the subpoenas at issue. However, as a party to the action, if Plaintiff sought to stop production of the responsive documents, she was required to file a motion to quash the subpoenas. (Code Civ. Proc., §§ 1987.1, subd. (c), 1985.3, subd. (g).) As the subpoenas set the date for production as July 3, 2019, Plaintiff should have filed a motion to quash the subpoenas before June 28, 2019. (Code Civ. Proc., § 1985.3, subd. (g).) As Plaintiff did not timely move to quash the subpoenas, she waived right to prevent production of the documents.

In the alternative, the Court overrules Plaintiff’s opposition on the merits. Plaintiffs have put Jennifer Terry’s mental state at issue by alleging that the loss of consortium has caused mental health injuries, leading to a suicide attempt. There is no dispute that Jennifer Terry previously suffered from mental health issues. Defendants are entitled to explore whether Jennifer Terry’s alleged mental health injuries result from the loss of consortium or something that pre-dated the accident, and whether her suicide attempt was caused by the loss of consortium or her bi-polar disorder. Simply, Plaintiffs cannot use privilege as both a sword and a shield, alleging severe mental health injuries as a result of her husband’s accident but then asserting a privacy interest over those records. Plaintiffs define the scope of their case, and Plaintiffs have chosen to put Jennifer Terry’s mental state at issue, so Plaintiffs have waived any privacy interest over those records. Plaintiffs “may not withhold information which relates to any physical or mental condition which they have put in issue by bringing this lawsuit.” (Britt v. Superior Court (1978) 20 Cal.3d 844, 864; City & County of San Francisco v. Superior Court (1951) 37 Cal.2d 227, 232.)

Defendant seeks sanctions against Plaintiff. Per Code of Civil Procedure section 1987.2, “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.” (Code Civ. Proc., § 1987.2, subd. (a).) The Court concludes that Plaintiff and her counsel of record, Gary A. Dordick and Christopher V. Bulone, opposed this motion without substantial justification, and imposes sanctions. The Court orders Plaintiff Jennifer Terry and her counsel of record to pay sanctions in the amount of $820, which represents four hours of attorney time at $190 per hour, plus the filing fee of $60.

CONCLUSION AND ORDER

Per Code of Civil Procedure section 1987.1, Defendant’s motion to compel is granted. The Court finds that Jennifer Terry has waived privilege with respect to the records at issue. The Court orders Santa Clarita Valley Therapy Services, Santa Clarita Mental Health Center, Valley Prevention Center, and Sean Coe, L.C.S.W. to produce the subpoenaed records within thirty (30) days. This order is without prejudice to the parties seeking a protective order over these records.

Plaintiff Jennifer Terry and her counsel of record, Gary A. Dordick and Christopher V. Bulone, jointly and severally, are ordered to pay sanctions in the amount of $820 to Defendant, by and through counsel, within thirty (30) days of notice of this order.

Defendant shall provide notice and file proof of such with the Court.

ORDER #2 of 3

Joseph Dean Terry, et al.,

Plaintiffs,

v.

meadowbrook meat company, inc., et al.,

Defendants.

Case No.: BC657424

Hearing Date: October 23, 2019

[TENTATIVE] order RE:

Motion TO COMPEL FURTHER RESPONSES

NOTICE

This motion is set for hearing on October 23, 2019, at 10:00 a.m. The Court shall hear the matter on October 23, 2019, at 1:30 p.m., since the parties will be appearing on another motion.

TENTATIVE ORDER

The Court’s tentative order is as follows:

Plaintiff Jennifer Terry must respond to special interrogatories inquiring about her mental health issues from ten years prior to the accident (i.e., from February 21, 2006 to the present). This evidence would be relevant because Plaintiffs have put Jennifer Terry’s mental state at issue by alleging that the loss of consortium has caused mental health injuries, leading to a suicide attempt. There is no dispute that Jennifer Terry previously suffered from mental health issues. Defendants are entitled to explore whether Jennifer Terry’s alleged mental health injuries result from the loss of consortium or something that pre-dated the accident, and whether her suicide attempt was caused by the loss of consortium or her bi-polar disorder. Simply, Plaintiffs cannot use privilege as both a sword and a shield, alleging severe mental health injuries as a result of her husband’s accident but then asserting a privacy interest over those records. Plaintiffs define the scope of their case, and Plaintiffs have chosen to put Jennifer Terry’s mental state at issue, so Plaintiffs have waived any privacy interest over those records. Plaintiffs “may not withhold information which relates to any physical or mental condition which they have put in issue by bringing this lawsuit.” (Britt v. Superior Court (1978) 20 Cal.3d 844, 864; City & County of San Francisco v. Superior Court (1951) 37 Cal.2d 227, 232.)

2. Plaintiff Jennifer Terry must respond to special interrogatories inquiring about any domestic violence in her marriage. This evidence would be relevant because Plaintiff Jennifer Terry has raised a loss of consortium claim. Any evidence of domestic violence between Plaintiff Joseph Dean Terry and Plaintiff Jennifer Terry may account for the loss of consortium and demonstrate that the loss of consortium was not caused by the accident. However, Plaintiff Jennifer Terry need not respond to special interrogatories inquiring about domestic violence involving anyone other than Plaintiff Joseph Dean Terry.

3. Plaintiff Jennifer Terry must respond to special interrogatories inquiring about any infidelity in her marriage to Plaintiff Joseph Dean Terry. This evidence would be relevant because Plaintiff Jennifer Terry has raised a loss of consortium claim. Any evidence of infidelity between Plaintiff Joseph Dean Terry and Plaintiff Jennifer Terry may account for the loss of consortium and demonstrate that the loss of consortium was not caused by the accident. However, Plaintiff Jennifer Terry need not respond to special interrogatories inquiring about any romantic relationships prior to her marriage to Plaintiff Joseph Dean Terry, since they would not be relevant.

ORDER #3 of 3

Joseph Dean Terry, et al.,

Plaintiffs,

v.

meadowbrook meat company, inc., et al.,

Defendants.

Case No.: BC657424

Hearing Date: October 23, 2019

[TENTATIVE] order RE:

Motion TO quash and for protective order

NOTICE

This motion is set for hearing on October 24, 2019, at 1:30 p.m. The Court advances the hearing on this motion and shall hear the matter on October 23, 2019, at 1:30 p.m., since the parties will be appearing on another motion.

TENTATIVE ORDER

Plaintiffs Joseph Dean Terry and Jennifer Terry (collectively, “Plaintiffs”) filed this action against Defendant Meadowbrook Meat Company, Inc. and its driver, Ernesto Mejia, (collectively, “Defendants”) following a motor vehicle collision. Defendants move to quash and seek a protective order regarding subpoenas Plaintiffs propounded on Ryder Truck Rental, Inc., and Superior Super Warehouse to inspect the truck involved in the underlying collision. Plaintiffs have filed a notice of non-opposition to the motion. Accordingly, the motion is granted as stipulated. Defendant shall provide notice and file proof of such with the Court.