Case Number: BC661645 Hearing Date: April 08, 2019 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

TATIANA CALDERONE,

Plaintiff,

v.

JOYCE CARLSON, et al.

Defendants.

Case No.: BC661645

Hearing Date: March 27, 2019

[TENTATIVE] order RE:

Motion TO quash

BACKGROUND

Plaintiff Tatiana Calderone (“Plaintiff”) alleges that a dog owned by Defendant Joyce Carlson (“Defendant”) attacked Plaintiff’s dog, causing her to fall to the ground, on April 17, 2017. Defendant served interrogatories in this case, requesting “All medical records for treatment YOU received for anything relating to YOUR head, neck, or face within two years before or after the incident in dispute.” (Lange Decl., ¶ 3, Exh. #1, pp. 7-8.) The request was not limited to treatment concerning the alleged injuries. In her response, Plaintiff stated that responsive records were in the possession of her primary care physician, but did not identify any records in the possession of Dr. Michael Arnstein, M.D. (“Dr. Arnstein”). (Ibid.) Defendant’s counsel then conducted an independent investigation and learned that Plaintiff had elective surgery to her face within one month after the incident. (Lange Decl., ¶ 3.) Defendant’s counsel raised the issue at a final status conference, following which Plaintiff’s counsel asked, “How did you find out?” (Lange Decl., ¶ 9.)

Defendant served a subpoena on Dr. Arnstein for Plaintiff’s medical records. Plaintiff previously moved to quash the subpoena. On February 4, 2019, the Court granted the motion to quash on procedural grounds, because Defendant had not served a notice of privacy rights on Plaintiff. The Court declined to grant the motion on substantive grounds, as requested by Plaintiff, finding that the records were relevant.

Defendant re-served the subpoena, which seeks “[a]ll documents, including but not limited to medical records and billing statements pertaining to any treatment (including physical examination and any medical procedure) to Tatiana Calderone during the period of April 17, 2016 through the present.” (See Motion for an Order Quashing Subpoenas Duces Tecum, p. 4.) Plaintiff again moves to quash the subpoena and seeks sanctions in the amount of $7,500. Defendant opposes the motion and seeks sanctions in the amount of $7,800. The motion is denied, and the Court orders sanctions against Defendant and her counsel-of-record, Vincent Calderone.

LEGAL STANDARD

If a subpoena requires the production of documents, the court may quash the subpoena entirely or modify it. (Code Civ. Proc., § 1987.1, subd. (a).) In ruling on a motion for protective order, “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.” (Code Civ. Proc., § 1987.2, subd. (a).)

EVIDENCE

The Code of Civil Procedure does not provide for the submission of written evidentiary objections in connection with a motion to quash. To the extent the Court is required to rule on these objections, the Court overrules Plaintiff’s evidentiary objections.

DISCUSSION

A plaintiff who seeks to recover for personal injuries waives the physician-patient privilege to some extent, but does not waive the privilege with respect to the plaintiff’s lifetime medical history. (Britt v. Superior Court (1978) 20 Cal.3d 844, 863-864.) Plaintiff has submitted her declaration, in which she states, “I object to the release of my medical records from Dr. Arnstein as an invasion of my right to medical privacy. I neither consulted nor was I examined or treated with Dr. Arnstein for any personal injuries that I suffered in connection with the April 17, 2017 dog attack incident. I have not incurred any medical expenses from Dr. Arnstein in connection with my injuries from the incident. I also do not rely on any medical records from Dr. Arnstein for my injuries in connection with the incident. I have never told Dr. Arnstein about the dog attack incident or about any of my injuries.” (Declaration of Tatiana Calderone, ¶ 5.) Plaintiff further states, “I do not claim any permanent scarring or need of any reconstructive surgery to my face as a result of the dog attack incident.” (Declaration of Tatiana Calderone, ¶ 7.)

Plaintiff has also proffered a declaration from Dr. Anstein. Dr. Arnstein states, “Based on my review of the medical records and my personal recollection of Mrs. Calderone, I have never consulted, examined or treated Mrs. Calderone for any personal injuries in connection with a dog attack incident or any other incident. [¶] I have no knowledge or information concerning any dog attack incident. [¶] I have no medical records in connection with any medical service I provided to Mrs. Calderone in connection with any personal injuries including a facial laceration injury.” (Declaration of Michael Arnstein, M.D., ¶¶ 5-7.)

Plaintiff’s evidence is sufficient to establish that Dr. Arnstein did not treat her for the facial laceration she sustained as a result of the dog attack. However, that is not the only relevance of Arnstein’s records. As the Court noted in its order of February 4, 2019, “Plaintiff claims she suffered a facial laceration as a result of the incident, and Dr. Arnstein purportedly examined her face after the incident in connection with elective surgery. Not only might those records be relevant to the issue whether the injury was severe, Plaintiff denied having such surgery, so they may be relevant for impeachment. Therefore, the Court finds that the records are relevant and denies the motion to quash on this ground.” (See Court’s Order of February 4, 2019.)

Plaintiff has raised nothing that changes the Court’s view of this case. Plaintiff alleges that she suffered a facial laceration in this case. The mere fact that Dr. Arnstein did not treat her for this alleged injury does not render the records irrelevant. To the contrary, Dr. Arnstein’s records may be relevant because his examination of Plaintiff’s face before the incident may detail any pre-existing conditions or injuries that would account for the facial laceration that Plaintiff attributes to the incident. Dr. Arnstein’s records may be relevant because they may detail his knowledge of Plaintiff’s condition shortly after the incident. Dr. Arnstein’s records may be relevant because they may demonstrate that any pain and disfigurement of Plaintiff is related to the procedure rather than the incident. Dr. Arnstein’s records may be relevant because they may establish that Plaintiff’s ability to undergo the procedure closely after the incident demonstrates that her injuries were not severe. Dr. Arnstein’s records may be relevant for impeachment purposes. Plaintiff’s credibility will be at issue, and she submitted responses to the discovery requests omitting references to Dr. Arnstein, notwithstanding that his records relate to treatment Plaintiff received for her face and that the records are in Plaintiff’s control. In sum, Dr. Arnstein’s records may be relevant to the trial.

The Court orders sanctions in this case. Code of Civil Procedure section 1987.2 authorizes the Court to order sanctions in the amount of the “reasonable expenses” in opposing a discovery motion if the Court finds that the motion was made in bad faith or without substantial justification. (Code Civ. Proc. § 1987.2(a).) The Court finds that there was no substantial justification for the motion to quash. As an initial matter, the Court (Lu, J.) suggested at the final status conference on November 1, 2018 that the records were relevant. To the extent the Court’s view was tentative or unclear, the Court (Goorvitch, J.) subsequently ruled that Dr. Arnstein’s records are, in fact, relevant. Putting that aside, the relevance of these records is apparent on their face, such that there is no justification for the instant motion. To the extent Plaintiff argues that records one year before the incident are not relevant, again, the relevance of those records is apparent for the reasons discussed in this order. Based on the foregoing, the Court finds that there was no substantial justification for this motion. Because Plaintiff has not sought sanctions for failing to disclose Dr. Arnstein’s records, the Court limits its sanction award to the reasonable costs to oppose the motion, per section 1987.2(a).

Defendant’s counsel represents that he spent seven hours of attorney time on this motion, and he anticipates spending three hours preparing for and appearing at the hearing, at a billing rate of $780 per hour. The Court accepts Defendant’s counsel’s declaration that he will spend ten hours in connection with this case, as that appears to be reasonable, given the amount of litigation in connection with this motion. However, the Court believes that a reasonable billing rate in a case of this nature is $200 per hour. Therefore, the Court orders Plaintiff and Plaintiff’s counsel, jointly and severally, to pay sanctions in the amount of $2,000, within thirty (30) days.

CONCLUSION AND ORDER

Plaintiff’s motion to quash is denied. Plaintiff and Plaintiff’s counsel are ordered to pay $2,000 in sanctions, jointly and severally, within thirty (30) days. Plaintiff shall give notice and file proof of such with the Court.

DATED: March 27, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court