Case Number: SC116661 Hearing Date: June 16, 2014 Dept: P

TENTATIVE RULING – DEPT. P

JUNE 16, 2014 CALENDAR No: 1

SC116661 — TOULET v. NICHOLS, et al.

PLAINTIFF’S MOTION TO QUASH THIRD PARTY RECORDS SUBPOENAS

Evidentiary matters

Plaintiff’s objection to the Ong declaration is sustained.

The Court’s ruling below would be the same even if it overruled the objection and admitted para. 4 of the Ong declaration into evidence.

Merits

This is a “sick building” case by a former tenant against her residential landlords and others. The thrust of the complaint is that the landlords knew of the water intrusion and the resulting serious mold problems in the house, but failed to properly remediate the mold growth, leading to the premises being uninhabitable and causing various types of harm to Plaintiff. The recently-filed Second Amended Complaint alleges claims for, inter alia, nuisance, negligence, and tortious breach of the warranty of habitability.

Defendant Kelton served business records subpoena on two of Plaintiff’s healthcare providers, UCLA and Dr. Christine Darwin, seeking medical records for the past fifteen (15) years. Plaintiff moves to quash the subpoenas, or in the alternative, for a protective order limiting the scope thereof. Defendant asserts that medical records indicate that about 14 years ago, Plaintiff sought medical attention relating to mold exposure. The Court will grant the motion in part.

As the Court stated in granting a similar motion to quash previously brought by Plaintiff in this action, the right to privacy of medical records is not waived by the filing of a personal injury action; the need for discovery of relevant medical records must be balanced against the right of privacy and a defendant is not entitled to discovery of conditions unrelated to the claim sued upon. E.g., Palay v. Superior Court (1993) 18 Cal.App.4th 919; Britt v. Superior Court (1978) 20 Cal.3d 844; Davis v. Superior Court(1992) 7 Cal.App. 4th 1008, 1014-1018.

The applicable law is summed up quite well in Weil & Brown (2014) at 8:320:

The party seeking discovery [protected by California’s constitutional right to privacy] must show a particularized need for the confidential information sought. The broad ‘relevancy to the subject matter’ standard is not enough here. The court must be convinced that the information is directly relevant to a cause of action or defense … i.e., that it is essential to determining the truth of the matters in dispute. [Britt v. Sup.Ct. (San Diego Unified Port Dist.) (1978) 20 C3d 844, 859-862, 143 CR 695, 704-706; Harris v. Sup.Ct. (Smets) (1992) 3 CA4th 661, 665, 4 CR2d 564, 567 (citing text)]
Id. (emphasis in original).

In other words, here, the burden is on Kelton to justify the validity of the subject subpoenas in light of the nature of Plaintiff’s allegations. The Court concludes that Kelton – who precipitated this discovery dispute by serving patently overbroadsubpoenas – has not done so as to medical records other than those pertaining to respiratory ailments and mold exposure and which fall within a reasonable time period. In this regard, even assuming that it is true that Plaintiff sought medical attention relating to mold exposure approximately 14 years ago, Defendant has not shown that any such exposure or treatment is directly relevant to Plaintiff’s claims in this action.

Plaintiff’s counsel’s request for sanctions in the reply brief is rejected for failure to comply with CCP 2023.040. In addition to failing to comply with this section, if the motion itself requests sanctions, that request is buried in the motion and is not supported by the required declaration.

Motion to quash is granted with prejudice to service of any subpoena seeking Plaintiff’s psychological records, from any time period, without prejudice to service of new, narrowly- tailored subpoenas concerning, for a period not exceeding five years prior to the date of the filing of the complaint (April 11, 2012). Request for protective order is denied as moot. Plaintiff’s request for (unspecified) monetary sanctions is denied with prejudice.

It appears that the legitimately requested information can be obtained if counsel work together to fashion an appropriate description of the documents sought. They should do so for the benefit of their clients. In general: The Court expects counsel to do their utmost to resolve discovery disputes in good faith. Counsel are reminded that the Court previously ordered them to comply with Local Rule 3.26 and Appendix 3A [formerly Rule 7.12].

CASE MANAGEMENT CONFERENCE

Set for July 31, 2014 at 8:30 a.m.

NOTICE

______ shall give notice of today’s rulings and orders and timely file proof of service thereof, pursuant to CCP 1019.5 and CRC 3.1312.