Kristen Gray v. Michael Solari, et al. CASE NO. 113CV253314
DATE: 13 June 2014 TIME: 9:00 LINE NUMBER: 12
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 12 June 2014. Please specify the issue to be contested when calling the Court and counsel.

On 13 June 2014, the motion of defendant Michael Solari (“Mr. Solari”) to quash the subpoena issued to Kaiser Santa Teresa (“Kaiser”) by plaintiff Kristen Gray (“Plaintiff”), was argued and submitted. Plaintiff filed a formal opposition to the motion, in which she requests an award of monetary sanctions.

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

Statement of Facts

This action arises out of a five-car motor vehicle accident that occurred on 8 November 2011, on Los Gatos Boulevard in Los Gatos, California.

Plaintiff alleges that on the evening of 8 November 2011, Mr. Solari was out drinking with Darrel Lee Frye (“Mr. Frye”), who is now deceased. Mr. Solari decided that he was too intoxicated to drive and asked Mr. Frye to drive him home in his car, even though he knew that Mr. Frye had consumed and was under the influence of alcohol.

Mr. Frye then proceeded to drive Mr. Solari’s car and crashed it into the rear end of a stopped motor vehicle, resulting in a five-car chain collision. At the time of the accident, Mr. Solari was seated next to Mr. Frye in the front passenger seat of his vehicle. Following the accident, Mr. Solari was treated for his injuries at Kaiser.

On 19 September 2013, Plaintiff filed the operative complaint against Mr. Solari and the estate of Mr. Frye, in which she alleges causes of action for general negligence (against Mr. Solari and the estate of Mr. Frye) and negligent entrustment (against Mr. Solari).

Discovery Dispute

On 2 April 2014, Plaintiff issued a deposition subpoena for production of business records to Kaiser for “[a]ny and all records for all services regarding [Mr. Solari] [. . .] for dates of service November 8, 2011 and November 9, 2011.” (Pinelli Dec., p. 1:20-22, Ex. A.) The date for production of documents was set for 2 May 2014. (Id.)

Mr. Solari’s counsel sent a letter to Plaintiff’s counsel on 14 April 2014, objecting to the subpoena as irrelevant and an invasion of Mr. Solari’s right to privacy. (Pinelli Dec., p. 1:22-25, Ex. B.) Mr. Solari’s counsel requested that Plaintiff withdraw the subpoena and advised that absent the same, Mr. Solari would file a motion to quash. (Id.)

Plaintiff’s counsel replied to Mr. Solari’s counsel’s letter on 15 April 2014. (Seabaugh Dec., p. 1:26-28, Ex. 5.) Plaintiff’s counsel indicated that Plaintiff would not withdraw the subpoena and requested that Mr. Solari reconsider his objections to the same. (Id.) Plaintiff’s counsel asserted that the medical records sought are limited in scope to the date of the accident and relevant because they would likely contain “a history from [Mr. Solari] about how the accident happened, [and] a diagnosis regarding his injuries and blood alcohol test results.” (Id.) Plaintiff’s counsel argued that Plaintiff needs the medical records from Kaiser to obtain this information because Mr. Solari had refused to state, in response to requests for admission and form interrogatories, how much alcohol he consumed prior to the accident or how the accident occurred. (Id.) Plaintiff’s counsel asserted that Mr. Solari’s blood alcohol level would affect his ability to perceive the incident in question. (Id.)

On 1 May 2014, Mr. Solari filed the instant motion to quash the subpoena issued to Kaiser. On 15 May 2014, Plaintiff filed papers in opposition to the motion, in which she requests an award of monetary sanctions. Mr. Solari filed a reply on 5 June 2014.

Discussion

I. Motion to Quash the Subpoena Issued to Kaiser

Mr. Solari moves to quash the subpoena issued to Kaiser in its entirety, arguing that the subpoena seeks irrelevant information, violates his right to privacy, and is “premature.” (Mem. Ps & As., p. 2-3.) Plaintiff opposes the motion and argues that Mr. Solari’s objections are without merit as the information and documents sought are directly relevant to the instant case.

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, subd. (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. Relevance Objection

In his motion, Mr. Solari argues that the documents sought by the subpoena are irrelevant to the instant case.

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. Super. Ct. (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. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546.)

Mr. Solari argues in a conclusory manner that the documents sought by the subpoena are irrelevant because “[he] was not driving the motor vehicle accident [sic] at the time of the accident.” (Mem. Ps & As., p. 3:1-4.)

Conversely, Plaintiff persuasively argues that the documents sought are relevant to the instant case because Mr. Solari’s medical records from the date of the accident may contain statements made by him about how the accident occurred, how much alcohol he had consumed, whether he was a driver or a passenger of the vehicle he was in, who was the driver of his car, and whether the driver of his vehicle was under the influence of alcohol. Such statements are relevant not only to establish liability, but for impeachment purposes. In addition, Plaintiff persuasively argues that the medical records may indicate Mr. Solari’s blood alcohol level, which would bear on his ability to accurately perceive the events surrounding the accident and, therefore, his credibility as a witness.

Accordingly, this objection is overruled.

C. Privacy Objection

Mr. Solari argues that the subpoena must be quashed because it intrudes upon his right to privacy in his medical history and records.

The right to privacy protects an individual’s “reasonable expectation of privacy against a serious invasion.” (Pioneer Electronics, Inc. v. Super. Ct. (2007) 40 Cal.4th 360, 370.) It is well-established that the right to privacy extends to an individual’s medical history and records. (Board of Medical Quality Assurance v. Gherardini (1979) 93 Cal.App.3d 669, 679.)

However, the right to privacy is not absolute. (Vinson v. Super. Ct. (1987) 43 Cal.3d 833, 842.) 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. Super. Ct. (1978) 20 Cal.3d 844, 859; see also Binder v. Super. Ct (1987) 196 Cal.App.3d 893, 901 [holding “direct relevance” requires something more than an assertion that the requested discovery might lead to admissible evidence].) 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. Super. Ct. (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. Super. Ct., supra, 40 Cal.4th at p. 371.)”

The subpoena issued to Kaiser seeks medical records regarding Mr. Solari’s medical condition, in which he has a reasonable expectation of privacy. (See Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 36-37.) Inquiry into Mr. Solari’s medical condition is a serious invasion of privacy and has the potential to elicit information of a highly personal nature. Thus, Plaintiff must show that the information sought is directly relevant.

Plaintiff argues that the medical records sought are directly relevant to the instant case because they may contain statements made by Mr. Solari about how the accident occurred, how much alcohol he had consumed, whether he was a driver or a passenger of the vehicle he was in, who was the driver of his car, and whether the driver of his vehicle was under the influence of alcohol. The Court agrees that such information is directly relevant to the instant case as it would assist Plaintiff in establishing liability and may be useful for impeachment purposes.

In addition, Plaintiff convincingly argues that the medical records may indicate Mr. Solari’s blood alcohol level, which would directly bear upon his ability to accurately perceive the events surrounding the accident and, therefore, his credibility as a percipient witness. Thus, Plaintiff has established that the discovery sought is directly relevant to the instant case.

Plaintiff also argues that Mr. Solari’s medical records would reflect the severities of his injuries and be relevant to refute his claims that the forces involved in the accident were not severe enough to cause the nature and extent of her injuries. As Mr. Solari persuasively contends in his reply papers, this argument is without merit as the nature and extent of his alleged injuries have no bearing on whether Plaintiff’s injuries could have been caused by the accident.

In his motion, Mr. Solari argues that Plaintiff should first obtain the information sought by way of a demand for production of documents, which he presumably believes is a less intrusive means of obtaining the discovery sought.

In her opposition, Plaintiff states that since the filing of this motion she has requested that Mr. Solari produce the records from Kaiser by way of a request for production of documents. However, she indicates that “[g]iven [Mr. Solari’s] refusal to cooperate in discovery thus far and given [his] objections to this motion, it is difficult to believe that [he] would cooperate and voluntarily provide the records in question” in response to the request. (Opp’n., p. 4:8-13.) Plaintiff asserts that Mr. Solari has previously refused to state how the accident occurred or admit that he knew that Mr. Frye was drinking before the accident in response to requests for admission and form interrogatories. As such, Plaintiff asserts that the medical records, which are limited in scope to the date of the accident, are sought through the least intrusive means and are essential to her case.

On balance, the Court finds that Plaintiff’s interest in discovering highly relevant facts regarding statements made by Mr. Solari regarding the events surrounding the accident and information about his alcohol consumption, which would bear on his credibility as a witness, outweighs Mr. Solari’s right of privacy in his medical records, particularly in light of the fact that the subpoena is narrowly tailored to obtain medical records from the date of the accident. The Court also finds that the subpoena for Mr. Solari’s medical records is no more intrusive than a request for production of documents because both discovery procedures seek production of the medical records.

Accordingly, this objection is overruled.

D. Premature Objection

In his motion, Mr. Solari argues that “[i]t is [. . .] premature for the Plaintiff to seek [his] medical records via subpoena” because “Plaintiff has failed to seek production of the documents by way of demand for production of documents.” (Mem. Ps & As., p. 2:22-25.)

Mr. Solari cites no authority for his argument that a subpoena for medical records is premature absent a prior demand for production of the same. Moreover, as noted above, Mr. Solari’s argument regarding the use of a request for production of documents to obtain the information sought is more appropriately addressed under his privacy objection and whether there are less intrusive means available to Plaintiff.

Accordingly, this objection is overruled.

E. Physician-Patient Privilege

In his replypapers, Mr. Solari states for the first time that he “does not waive the physician-patient privilege that is found in Evidence Code 996.” (Reply, p. 3:25-26.)

To the extent Mr. Solari meant to assert the physician-patient privilege as a separate basis for the Court to quash the subpoena, the single conclusory sentence provided is insufficient to meet his burden of establishing that the privilege applies. (See Bridgestone/Firestone, Inc. v. Super. Ct. (1992) 7 Cal.App.4th 1384, 1393 [party claiming the privilege has the burden of establishing its existence].)

Moreover, Mr. Solari did not raise the issue of the physician-patient privilege in his moving papers. Mr. Solari should have addressed the physician-patient privilege in his moving papers so that Plaintiff could formulate appropriate arguments in opposition. Since Mr. Solari raised this issue for the first time in his reply, Plaintiff was deprived of the opportunity to address the issue in her opposition. Mr. Solari has not shown good reason for his failure to raise the physician-patient privilege in his moving papers.

As a result of the due process concerns, this Court will not consider Mr. Solari’s new argument regarding the physician-patient privilege provided for the first time in his reply. (See Proctor v. Vishay Intertechnology, Inc. (2013) 213 Cal. App. 4th 1258, 1273-1274 [“[o]bvious considerations of fairness in argument demand that the [moving party] present all of his points in the opening brief [. . .] [t]o withhold a point until the closing brief would deprive the respondent of his opportunity to answer it or require the effort and delay of an additional brief by permission [. . .] [h]ence the rule is that points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before]; REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 500 [“This court will not consider points raised for the first time in a reply brief for the obvious reason that opposing counsel has not been given the opportunity to address those points”].)

“It is a mistake to leave key arguments and citations for the reply brief on the theory that this will give you ‘the last word’ with the court. The court may refuse to consider arguments first raised in reply papers or grant the other side time for further briefing.” (California Practice Guide, Civil Procedure Before Trial (Weil & Brown), § 9:106.1.)

F. Conclusion

As such, Mr. Solari’s motion to quash the subpoena issued to Kaiser is DENIED.

II. Plaintiff’s Request for Sanctions

Plaintiff requests monetary sanctions against Mr. Solari and his counsel in the amount of $900.00 under Code of Civil Procedure section 1987.2.

Code of Civil Procedure section 1987.2, subdivision (a) states that, in making an order pursuant to a motion made under 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 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.

Here, Plaintiff was successful in her opposition to the instant motion. However, the Court finds that Mr. Solari did not make the motion in bad faith and had substantial justification for bringing the motion, as the subpoena sought medical records which were protected by his right to privacy.

Accordingly, Plaintiff’s request for monetary sanctions is DENIED.

Conclusion and Order

Mr. Solari’s motion to quash is DENIED. Accordingly, Kaiser shall produce Mr. Solari’s medical records for the dates of service 8 November 2011 and 9 November 2011, within 20 days of the date of the filing of this Order.

As an accommodation to Mr. Solar’s belatedly-asserted claim of the attorney-client privilege, this Court will review the records in camera to determine evidence pertaining to statements made by Mr. Solari regarding the events surrounding the accident and information about his alcohol consumption, which would bear on his credibility as a witness, whether he was a driver or a passenger of the vehicle he was in, who was the driver of his car, and whether the driver of his vehicle was under the influence of alcohol.

Plaintiff’s request for monetary sanctions is DENIED.