K. Dinh v. C. Lejano, et al. CASE NO. 113CV252800
DATE: 23 May 2014 TIME: 9:00 LINE NUMBER: 14
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 Thursday 22 May 2014. Please specify the issue to be contested when calling the Court and counsel.

On 23 May 2014, the motion of plaintiff Kim Thu Dinh (“Plaintiff”) to quash the subpoena for the production of medical records, or in the alternative for a protective order, and for monetary sanctions was argued and submitted. Defendant Chris Lejano (“Defendant”) filed a formal opposition to the motion, in which he requested monetary sanctions.

All parties are reminded that all papers must comply with California Rules of Court, rule 3.1110(f).

Statement of Facts

This is a personal injury action arising from a two-car collision between Plaintiff and Defendant. Plaintiff alleges that as she proceeded into an intersection to make a left turn, Defendant negligently drove through a red light and hit the side of her vehicle. Plaintiff claims that she suffered extensive injury as a result of the collision. In her complaint, Plaintiff asserts three causes of action against Defendant and defendant Esther M. Lam, an owner of the vehicle, for motor vehicle negligence, general negligence, and negligence per se.

Discovery Dispute

On 2 April 2014, Defendant served a deposition subpoena on Dr. Tuan A. Tran, seeking medical and billing records pertaining to Plaintiff.

On 16 April 2014, Plaintiff’s counsel sent Defendant’s counsel a meet and confer letter, indicating that the subpoena is overbroad, seeks irrelevant information, and intrudes upon Plaintiff’s right to privacy. Counsel warned that if Defendant would not withdraw the subpoena, Plaintiff would file a motion to quash.

On 22 April 2014, Defendant’s counsel sent a detailed letter in response, indicating that Plaintiff’s objections to the subpoena lack merit.

Despite a number of attempts to meet and confer on the subject, the parties were unable to resolve the dispute. Consequently, on 25 April 2014, Plaintiff filed this motion to quash the subpoena for the production of medical records or, in the alternative, for a protective order. Defendant filed his opposition on 12 May 2014. On 16 May 2014, Plaintiff filed her reply brief.

Discussion

I. Motion to Quash Subpoena for Medical Records or, in the Alternative, for Protective Order

Plaintiff moves to quash the subpoena served on Dr. Tuan A. Tran, or in the alternative, for a protective order preventing the disclosure of any records unrelated to the medical conditions at issue.

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, Plaintiff requests that the Court strike Defendant’s opposition to her motion on the ground that the opposition was untimely served.

Code of Civil Procedure section 1005, subdivision (b) requires that all opposing papers be filed with the court no later than 9 court days before the date of the hearing. Subdivision (c) provides that opposing papers shall be served by a means reasonably calculated to ensure delivery by the close of the following business day.

The date of the hearing for this matter is 23 May 2014, and 9 court days before that date was 12 May 2014. Defendant filed his opposing papers on 12 May 2014, and therefore, was obligated to serve the papers by a means reasonably calculated to ensure delivery to Plaintiff by the close of business on 13 May 2014. Defendant served the opposition papers by first-class mail on 12 May 2014. The proof of service indicates that the opposing papers were deposited in a U.S. mailbox in San Jose, and sent to Plaintiff’s counsel’s office, which is also located in San Jose. Given the short distance the papers were to travel, the Court finds that they were reasonably calculated to be delivered to Plaintiff’s counsel by the close of business on 13 May 2014. Thus, the opposition was timely served. Even if the contrary were true, Plaintiff submitted a detailed reply brief, fully addressing the merits of Defendant’s opposition. Accordingly, Plaintiff suffered no prejudice as a result of the service of the opposition by first-class mail, and the request to strike Defendant’s opposition is DENIED.

C. Motion to Quash Subpoena

Plaintiff contends that the subpoena should be quashed because the records sought by the subpoena are irrelevant, the subpoena is overbroad, disclosure of the records would violate the physician-patient privilege, and the subpoena intrudes upon her right to privacy.

The subpoena at issue requests all of Plaintiff’s medical records, medical reports, films, and billing and insurance records in Dr. Tran’s possession. (See Nguyen Decl., Ex. A.)

1. Relevance Objection

First, Plaintiff contends that the records sought are irrelevant because they do not relate to the collision.

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.) 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.)

Here, Plaintiff argues that she first sought treatment from Dr. Tran approximately seven months after the collision, and never sought treatment for injuries sustained as a result of the collision. She therefore reasons that the records sought from Dr. Tran are unrelated to the collision, and thus, irrelevant to the action.

In opposition, Defendant argues that Plaintiff admitted at deposition that she saw Dr. Tran for pain relief related to injuries sustained in the collision. Thus, he reasons that the records will disclose the extent of Plaintiff’s injuries. Defendant’s argument is persuasive.

Here, Plaintiff did in fact testify that she saw Dr. Tran for headaches and pain related to the parts of her body injured in the collision, including her head, leg, neck, chest and back. (See Plaintiff Dep. Tr., 52:15-53:8.) Thus, any records in Dr. Tran’s possession concerning Plaintiff’s level of pain months after the accident will allow Defendant to determine the severity of her injuries and the amount of potential damages to which Plaintiff may be entitled. Accordingly, the objection to the subpoena on the ground of relevance is overruled.

2. Overbreadth Objection

Second, Plaintiff contends that the subpoena is overbroad because it is not limited to medical conditions caused by the collision and is not limited as to time.

In opposition, Defendant argues that the subpoena is not overbroad as to either scope or time. First, Plaintiff claims she suffered injuries to almost all areas of her body, including, but not limited to, her head, neck, chest, back, shoulders, arms, and legs. As almost her entire body was affected by the collision, Defendant reasons that all medical records from Dr. Tran will assist him in determining the severity of Plaintiff’s injuries and the reasonable expenses associated with the injuries. Second, Plaintiff testified at deposition that the first time she was treated by Dr. Tran was approximately seven months after the collision. Defendant infers therefrom that Dr. Tran would only have in her possession Plaintiff’s medical records dated after the collision. Finally, Plaintiff stated in responses to form interrogatories that she continues to suffer from injuries affecting almost all parts of her body. Defendant concludes that medical records from the date of Plaintiff’s first visit to the present relate to injuries suffered by her as a result of the collision.

In her reply brief, Plaintiff explains that Dr. Tran has been her primary care physician for the last two years. She concludes that the subpoena as currently drafted will likely elicit irrelevant information regarding medical conditions unrelated to the instant case.

As to time, Defendant has convincingly established that the records in Dr. Tran’s possession are likely to be limited to records generated after the collision, and that the medical records from the date of Plaintiff’s first visit to the present may relate to her injuries suffered as a result of the collision. Accordingly, the subpoena is not overbroad as to time.

In regards to subject matter, as currently drafted, the subpoena is not narrowly tailored and would likely elicit irrelevant information regarding Plaintiff’s medical conditions that are unrelated to the instant case. Therefore, Plaintiff’s objection as to overbreadth is sustained insofar as the subpoena seeks medical and billing records that pertain to Plaintiff’s treatment, care, and examination for medical conditions other than her head, neck, chest, back, shoulders, arms, and legs.

3. Physician-Patient Privilege

Third, Plaintiff argues that the subpoena seeks medical records in violation of the physician-patient privilege.

Communications between a physician and a patient are privileged if the communications were made in confidence during the course of the relationship. (Evid. Code, § 992.) The purpose of the physician-patient privilege is to “preclude the humiliation of the patient that might follow disclosure of his ailments” and encourage a patient to fully disclose information to his or her physician. (Board of Medical Quality Assurance v. Gherardini (1979) 93 Cal.App.3d 669, 678-79.) Although confidential communications between a patient and a physician are protected by a statutory privilege, the physician-patient privilege can be waived by a patient if he or she puts his or her medical condition at issue. (Evid. Code, § 996.)

Here, Plaintiff alleges that she suffered extensive injuries as a result of the collision. In response to form interrogatories, she further specified that she has suffered injuries to her head, neck, chest, back, shoulders, arms and legs. Thus, Plaintiff has put these medical conditions at issue, and has waived the privilege as to these conditions. Accordingly, the objection to the subpoena on the ground of the physician-patient privilege is overruled.

4. Right to Privacy

Finally, Plaintiff argues that the subpoena must be quashed because it intrudes upon her right to privacy in her medical history and records.

Separate and apart from the physician-patient privilege, an individual enjoys a more general right to privacy. (See Cal. Const., art. I, § 1.) The right to privacy protects an individual’s “reasonable expectation of privacy against a serious invasion.” (Pioneer Electronics, Inc. v. Superior Court (2007) 40 Cal.4th 360, 370.) It is well-established that the right to privacy extends to an individual’s medical history and records. (See Board of Medical Quality Assurance v. Gherardini, supra, 93 Cal.App.3d 669 at p. 679.)

Where a serious invasion of the right to privacy is shown, the proponent of the discovery must demonstrate that the information sought is “directly relevant” to a claim or defense, and “essential to the fair resolution of the lawsuit.” (Britt v. Superior Court (1978) 20 Cal.3d 844, 859.) Once direct relevance has been demonstrated, the proponent of discovery must show that the information sought is not available through less intrusive means. (Allen v. Superior Court (1984) 151 Cal.App.3d 447, 449.) The Court must then carefully balance the right to privacy on the one hand, and the right of civil litigants to discover facts, on the other. (Pioneer Electronics, Inc. v. Superior Court, supra, 40 Cal.4th at p. 371.)

As discussed previously, the subpoena as currently drafted is overbroad and would likely elicit irrelevant information regarding Plaintiff’s medical conditions that are unrelated to the instant case. However, the medical and billing records from Dr. Tran pertaining to her head, neck, chest, back, shoulders, arms, and legs are directly relevant because Plaintiff has testified that Dr. Tran treated her for pain relief for injuries sustained as a result of the accident. Thus, Plaintiff’s medical and billing records from Dr. Tran are essential to the fair resolution of the lawsuit. Plaintiff’s privacy concerns are adequately addressed by limiting the subpoena to medical and billing records pertaining to her head, neck, chest, back, shoulders, arms, and legs. Accordingly, the objection on the ground of privacy is overruled.

5. Conclusion

Accordingly, the motion to quash the subpoenas issued to Dr. Tran is DENIED, but the Court modifies the subpoena to cover only medical and billing records concerning Plaintiff’s head, neck, chest, back, shoulders, arms, and legs.

D. Request for Protective Order

In the alternative, Plaintiff requests a protective order limiting the subpoena to records related to the medical conditions at issue in this action. As previously discussed, the Court modifies the subpoena to cover only the medical and billing records concerning Plaintiff’s head, neck, chest, back, shoulders, arms and legs. Accordingly, no additional protective order is necessary, and Plaintiff’s request is DENIED as moot.

II. Requests for Monetary Sanctions

A. Plaintiff’s Request for Monetary Sanctions

Plaintiff makes a request for monetary sanctions against Defendant and his attorney pursuant to Code of Civil Procedure section 1987.2 for opposing her motion to quash the subpoena.

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, Defendant prevailed on a significant number of the objections at issue, and therefore, acted with substantial justification. Accordingly, Plaintiff’s request for monetary sanctions against Defendant and his counsel is DENIED.

B. Defendant’s Request for Monetary Sanctions

Defendant makes a request for monetary sanctions against Plaintiff and her counsel for filing her motion to quash. He bases his request on Code of Civil Procedure section 2025.480, subdivision (j).

Pursuant to section 2025.480, the court shall impose a monetary sanction against any party who unsuccessfully makes or opposes a motion to compel deposition answers or production of documents attendant to a notice of deposition, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2025.480, subd. (j).)

As Plaintiff did not make a motion to compel deposition answers or production of documents attendant to a notice of deposition, section 2025.480, subdivision (j) does not provide a statutory basis for an award of monetary sanctions in this matter. Consequently, Defendant’s request for monetary sanctions against Plaintiff and her counsel is DENIED.

Conclusion and Order

Plaintiff’s motion to quash the subpoena issued to Dr. Tuan Tran or, in the alternative, for a protective order is DENIED, but the Court modifies the subpoena to cover only medical and billing records concerning Plaintiff’s head, neck, chest, back, shoulders, arms and legs. Accordingly, within 30 calendar days of the filing of this Order, Dr. Tran shall produce documents responsive to the subpoena as modified herein.

Plaintiff’s request for monetary sanctions is DENIED.

Defendant’s request for monetary sanctions is DENIED.