Lawzilla Additional Information: The court’s final order apparently modified the tentative and sanctions were issued against Trachtman and Trachtman.

Case Number: 19STCV00459 Hearing Date: August 19, 2019 Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

LETICIA NARVAEZ,

Plaintiff,

vs.

BODEGA LATINA CORPORATION, A DELAWARE CORPORATION, et al.

Defendants.

CASE NO: 19STCV00459

[TENTATIVE] ORDER GRANTING PLAINTIFF’S MOTION TO QUASH SUBPOENAS

Dept. 3

1:30 p.m.

August 19, 2019

Plaintiff’s motion to quash Defendant’s subpoenas to (1) CHC Providence Holy Cross Medical Center, (2) CHC Providence Holy Cross Medical Center (Billing), (3) CHC Providence Holy Cross Medical Center (Radiology), and (4) Providence Health & Services for Plaintiff’s medical, billing, and radiology records is GRANTED, in part. The Court orders the subpoenas to be modified and limited to medical, billing, and radiology records regarding Plaintiff’s head, right shoulder, right arm, left shoulder, left arm, neck, back, right leg, left leg, right knee, and left knee. Records are to be limited from 5 years prior to the January 17, 2017 incident to the date of issuance of the subpoenas.

Plaintiff’s request for monetary sanctions is GRANTED in the amount of $1,500.00 against Defendant and Defendant’s counsel, Trachtman & Trachtman, LLP, jointly and severally.

I. Background

On January 8, 2019, Plaintiff Leticia Narvaez initiated this lawsuit against Defendant Bodega Latina Corporation, a Delaware Corporation, d/b/a El Super (“Defendant”). Plaintiff alleges that on January 17, 2017, she slipped and fell on a puddle of water while walking through the frozen food aisle of Defendant’s supermarket store. Plaintiff alleges to having injured her left shoulder and back as a result.

On July 24, 2019, Plaintiff filed the subject Motion to Quash Defendant’s subpoenas for Plaintiff’s medical, billing, and radiology records on grounds that they impermissibly violate Plaintiff’s constitutional right to privacy. The filing of this motion follows Defendant serving four business record subpoenas to CHC Providence Holy Cross Medical Center and Providence Health & Services on June 28, 2019.

II. Legal Standard

A court “may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” (Code Civ. Proc. § 1987.1.) The court, upon motion reasonably made by the party, may rule upon motions for quashing, modifying or compelling compliance with, subpoenas. (See, e.g., Lee v. Swansboro County Property Owners Ass’n (2007) 151 Cal.App.4th 575, 582-583.) The parties’ discussion of their meet and confer efforts, or lack thereof, is irrelevant as there is no meet and confer requirement in bringing a motion to quash. (See Code Civ. Proc. § 1987.1.)

III. Analysis

Plaintiff moves to quash four business record subpoenas issued to CHC Providence Holy Cross Medical Center and Providence Health & Services on June 28, 2019. (Brito Decl., ¶ 3, Exhs. A-D.) Each of the three subpoenas to CHC Providence Holy Cross Medical Center and the one subpoena to Providence Health & Services request for “[a]ny and all documents, medical, physical therapy, chiropractic, pharmacy, emergency medical service, billing, radiology/diagnostic, films and film reports, pertaining to the care, treatment, diagnosis, prognosis and examination of Leticia Narvaez. . . .” (Brito Decl., Exhs. A-D.) Plaintiff argues that the subpoenas should be quashed because they violate Plaintiff’s constitutional right to privacy.

It is well established that medical records are afforded constitutional protection under a person’s right to privacy. Nevertheless, when a plaintiff puts his or her health and physical condition at issue, the privacy and privileges that normally attach to such sensitive information are “substantially lowered by the very nature of the action.” (Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal.4th 30, 43.) The Court must “balance the public need against the weight of the privacy right” and only serious invasions of privacy will bar discovery. (Crab Addison, Inc. v. Superior Court (2008) 169 Cal.App.4th 958, 966.) There is not an egregious invasion of privacy every time there is a request for private information and courts must “place the burden on the party asserting a privacy interest to establish its extent and seriousness of the prospective invasion.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 557.)

Plaintiff argues that the subpoenas are overbroad because they seek the entirety of Plaintiff’s medical, billing, and radiology records history without limitation as to scope or time period. In opposition, Defendant argues that Plaintiff has placed her medical conditions in dispute and that it has no other means to obtain information about Plaintiff’s medical history other than by way of the subpoenas, thus creating a “compelling interest” in said records.

The Court agrees that Plaintiff has put her medical conditions into dispute, such that discovery into her medical history as to those injuries at issue in this case is appropriate. Here, Defendant has shown that Plaintiff provided sworn and verified discovery responses in which she claims injuries to her “lower back, left shoulder, and left knee” attributed to the incident. (Eliot Decl., ¶ 4, Exh. 1.) A review of Plaintiff’s medical records obtained by Defendant during discovery also reveals that Plaintiff complained of pain in her arm, head, right shoulder, neck, both legs and knees. (Eliot Decl., ¶¶ 6-7, Exhs. 2-4.) The general public interest in the ascertainment of truth in legal proceedings and in obtaining just results in litigation outweighs the privacy interests of Plaintiff who has put her alleged injuries, health, and medical treatment at issue in this litigation. However, the Court agrees with Plaintiff that, as currently phrased, the subpoenas are overbroad on their face. “[A]lthough in seeking recovery for physical and mental injuries plaintiff have unquestionably waived their physician-patient and psychotherapist-patient privileges as to all information concerning the medical conditions which they have put in issue, past cases make clear that such waiver extends only to information [related] to the medical conditions in question, and does not automatically open all of a plaintiff’s past medical conditions in question, and does not automatically open all of a plaintiff’s past medical history to scrutiny. (Britt v. Superior Court (1978) 20 Cal.3d 844, 849.) Mere speculation as to the possibility that some portions of the records might be relevant to some substantive issue does not suffice. (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1017.)

In exercising its discretion to allow or limit discovery, Courts are to keep in mind that the Legislature has suggested that, where possible, Courts should impose partial limitations rather than outright denial of discovery. (See Williams 3 Cal.5th at 559, quoting Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 383.) Accordingly, balancing the competing considerations, the Court will GRANT Plaintiff’s motion, in part. The subpoenas for Plaintiff’s medical, billing, and radiology records shall be limited in scope and in time, relevant to the action. The subpoenas for Plaintiff’s medical, billing, and radiology records shall be limited to those records pertaining to the specific body parts placed at issue by Plaintiff: head, right shoulder, right arm, left shoulder, left arm, neck, back, right leg, left leg, right knee, and left knee. The request for said records shall also be limited to a time period of five years prior to January 17, 2017, the date of the incident, to the date of issuance of the subpoenas.

Monetary Sanctions

Plaintiff requests sanctions against Defendant and its counsel of record, Trachtman & Trachtman, LLP, jointly and severally in the amount of $3,007.00. Code of Civil Procedure Section 1987.2 provides that 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 that sanctions are justified in this case, as the subpoenas were oppressive and the opposition was without merit. Nevertheless, given the straightforward nature of the issues presented in the motion and that greater meet and confer efforts may have resolved the issues without expending judicial recourses, Plaintiff’s requested fees and costs are excessive. Rather, the Court finds as reasonable a sanctions award of $1,500.00 against Defendant and its counsel of record, Brandon Corday, Esq. and Law Offices of Kirk & Myers to pay sanctions, jointly and severally.

Moving party to give notice.