Case Number: BC647258 Hearing Date: January 16, 2018 Dept: 98

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

GERMAN DE LEON,

Plaintiff,

vs.

DELPHINE WONG and DOES 1 through 50, inclusive,

Defendants.

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CASE NO: BC647258

[TENTATIVE] ORDER RE:

PLAINTIFF’S MOTION TO QUASH RECORD SUBPOENAS

Dept. 98

1:30 p.m.

January 16, 2018

On January 18, 2017, Plaintiff German De Leon (“Plaintiff”) filed this action against Defendant Delphine Wong (“Defendant”) for negligence relating to a November 22, 2016 automobile accident. On October 16, 2017, Defendant served subpoenas on: (1) Bristol West Insurance Group seeking records from 2003; (2) Mercury Insurance Company for records from 2005; and (3) Safeco Insurance Company seeking records from 2006. (Declaration of Ramin Soofer, ¶ 4.) The parties met and conferred and Defendant agreed to withdraw the subpoena on Bristol West only. (Soofer Decl., ¶ 8.) Plaintiff now seeks to quash or limit the subpoenas on Mercury and Safeco.

Any party may obtain discovery that is relevant to the subject matter involved in a pending action if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. (Code of Civ. Proc., § 2017.010.) A deposition subpoena may request (1) only the attendance and testimony of a deponent, (2) only the production of business records for copying, or (3) the attendance and testimony, as well as the production of business records. (Code of Civ. Proc., § 2020.020.) A deposition subpoena requesting only the production of business records for copying need not be accompanied by an affidavit or declaration showing good cause for the production. (Code of Civ. Proc., § 2020.410, subd. (c).)

The 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 of Civ. Proc., § 1987.1, subd. (a).) A motion to quash production of documents at a deposition must be accompanied by a separate statement setting forth the particular documents or demands at issue and the factual and legal reasons why production should not be compelled. (Cal. Rules of Court, Rule 3.1345(a)(5).)

Plaintiff argues the subpoenas should be quashed because they invade his right to privacy and are impermissibly remote as to time, as they seek records from 11 and 12 years ago. Plaintiff contends that Defendant has the burden of showing good cause for the discovery sought, and that Defendant is not entitled to his entire medical history. Plaintiff argues the subpoenas should be limited to the five years prior to the subject accident.

Defendant argues Plaintiff is claiming injury to his back and lower extremities as a result of this automobile accident. However, during discovery, Defendant learned that Plaintiff was involved in vehicle accidents in 2003, 2005, and 2006 and that he claimed bodily injuries as a result of those accidents. (Declaration of Leslie Morales, ¶ 2; Exh. 1.) Defendant argues the subpoenas are properly limited to documents relating to head, neck, and/or back injuries. (Morales Decl., ¶ Exh. 4.) Defendant contends Plaintiff has put these medical records at issue by claiming personal injuries and that subpoenas should be limited by relevancy, rather than time, as these subpoenas are.

When a plaintiff puts 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.)

The Court finds Plaintiff has put his health, and in particular, his back and lower extremities, at issue by alleging injuries caused by this accident. Defendant is entitled to discovery medical records related to Plaintiff’s past injuries to these areas to determine whether Plaintiff’s claimed injuries existed prior to the subject accident. Further, the Court finds the subpoenas are sufficiently narrow so as to avoid an egregious invasion of privacy. Both subpoenas limit the requested records to claims of head, neck, and/or back injures with regard to the 09/14/2005 and 09/11/2006 motor vehicle accidents. Thus, Defendant is not seeking to dissect Plaintiff’s entire medical history based on supposition, as Plaintiff asserts.

Therefore, the Motion to Quash the subpoenas on Mercury and Safeco are DENIED.

Both parties seek sanctions. The court may award reasonable expenses incurred in making or opposing a motion to quash or modify a subpoena, “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 of Civ. Proc., § 1987.2, subd. (a).) The Court finds this Motion was made and opposed with substantial justification. Both requests for sanctions are DENIED.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT98@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 16th day of January 2018

Hon. Holly J. Fujie

Judge of the Superior Court