2016-00201894-CU-PO

Susan Oliver vs. Sy Arden Way, LLC

Nature of Proceeding: Motion to Enforce Subpoena (Pegah Pajouhi)

Filed By: Reusch, Mark S.

APPEARANCE REQUIRED

At the time of hearing, counsel shall address whether a second amended complaint should be filed in which allegations of emotional distress beyond that allowable in wrongful death cases are removed from the first, second and third causes of action. (See Bouley v. Long Beach Memorial Med. Ctr. (2005) 127 Cal.App.4th 601, 610 [“The pecuniary value of the decedent’s society, comfort and protection is recoverable, but mental and emotional distress, including grief and sorrow, are not”].)

The motion of Defendants Sy Arden Way, LLC; Syufy Enterprises; SyWest Development LLC; SyWest Holdings, LLC; and Arden Way Hospitality LLC dba Motel 6 Expo Sacramento (sued as Arden Way Hospitality SPE, LLC and Motel 6-CAL EXPO #4430) (collectively “Defendants”) to enforce subpoena for mental health records is DENIED.

This is a wrongful death case involving allegations of premises liability. The plaintiffs are Susan Oliver (Susan), individually and as guardian ad litem for Jennah Oliver; Melissa Oliver; and Scott Brown (Brown) (collectively “Plaintiffs”). The case follows the shooting death of Sacramento County Sheriff’s Deputy Danny Oliver (Decedent). Plaintiffs allege a third party shot Decedent at a Motel 6 that Defendants owned or managed. According to Plaintiffs, Defendants were aware of rampant criminal activity on the premises yet failed to take preventative action, among other things. The first amended complaint (FAC) contains causes of action against Defendants for negligence, premises liability and wrongful death. Brown, who is a Sheriff’s Deputy and was Decedent’s partner, is also advancing a cause of action denominated “personal injury,” which contains allegation of negligently inflicted emotional distress. The plaintiffs other than Brown are Decedent’s surviving family members.

Plaintiffs allege “great emotional, mental and nervous pain and suffering” as the result of Decedent’s death. (See FAC, ¶¶ 20, 29.) They further allege that “said injuries will result in some permanent damages to each of them[.]” (Id., ¶¶ 20, 29.) And they allege that they have “suffered the loss of the love, comfort and society” of Decedent. (Id., ¶¶ 21, 30; see also id., ¶ 42 [alleging non-economic damages consisting of loss of the decedent’s love, companionship, comfort, care, assistance, protection, affection, society and moral support”].) In response to these and other allegations of mental suffering, as well as Plaintiffs’ discovery responses identifying mental health care professionals who treated them, Defendants issued several subpoenas for records. Among these subpoenas is the one served on Dr. Pegah Pajouhi, whom Susan identified as a treating and prescribing health care provider. (See Reusch Decl., Exhs. B, C.) The subpoena issued to Dr. Pajouhi broadly calls for all records of Susan’s treatment, health history and billings since Decedent’s death.

Susan’s counsel objected to the subpoena by letter dated 6/05/18. (Id., Exh. D.) The letter provides that “we have withdrawn our claim for any treatment to Susan Oliver following the death of her husband. We will send amended interrogatory responses shortly[.]” (Id.) Defense counsel responded by letter dated 6/07/17, in which he noted that, despite the withdrawal of a “claim for treatment,” Susan had not withdrawn her claim of emotional distress damages. (Id., Exh. E.) By email dated 6/11/18, Susan’s counsel wrote:

Ms. Oliver is not making a claim for any care and treatment associated with the loss of her husband. As you know from CACI 3921, she is entitled to the loss of love, companionship, comfort, care, assistance, protection, affection, society, moral support as well as training and guidance. We will not be making a claim for any care and treatment nor will we be calling any of the providers listed in her Responses to Form Interrogatories. As a result, we will not be withdrawing our objections to production of those records.

(Id., Exh. F.) Counsel reached an impasse, and this motion to compel Dr. Pajouhi’s compliance with the subpoena followed.

In the moving papers, Defendants argue that Susan’s allegations of mental distress have placed her mental health at issue. They note that, even if she elects not to pursue any economic damages associated with treatment or care, she has not withdrawn her claim for noneconomic damages associated with the mental suffering itself. Hence, they argue records Dr. Pajouhi generated while treating Susan since

Decedent’s death are discoverable.

In opposition, Susan appears to concede that her allegations of emotional distress beyond the loss of love, companionship, affection and consortium compensable in a wrongful death case are a nullity. (See Opp. at 2:20-28.) Faced with this concession, Defendants argue in reply that evidence Susan’s marriage to Decedent was troubled, or that she suffered from mental health problems that could have affected the marriage, are still discoverable. Defendants cite evidence that Susan and Decedent sought counseling before Decedent’s death, and that Susan may suffer from alcoholism and depression. Defendants argue Dr. Pajouhi must comply with the subpoena even if Susan does not pursue emotional distress damages in this case. (See Omnibus Reply. Part III-A.)

Given that Susan may not obtain damages for grief or sorrow in this case, Defendants’ subpoena is overly broad and intrudes on Susan’s privacy rights. Perhaps Defendants are entitled to Susan’s mental health records reflecting marriage counseling or mental health problems likely to affect the quality of Susan’s marriage. (See Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1014 [private information will not be ordered disclosed unless it is “directly relevant”].) The subpoena in question, however, calls for all billings, records of “physicals,” and other documents that Defendants have not shown to be directly relevant to the limited noneconomic losses recoverable in wrongful death cases. Consequently, the motion is denied. Nothing bars Defendants from issuing a revised subpoena.

Disposition

The motion is denied.

The minute order is effective immediately. No formal order pursuant to CRC 3.1312 or further notice is required.