16-CIV-02044 MALAETELE V. IAULUALO, et al. vs. STATE OF CALIFORNIA, et al.

MALAETELE V. IAULUALO THOMAS J. BRANDI

State of California john p. devine

1. DEFENDANT COUNTY OF SAN MATEO’S MOTION TO COMPEL PLAINTIFFS TO PROVIDE FURTHER RESPONSES TO DEFENDANT COUNTY OF SAN MATEO’S FORM

INTERROGATORIES, SET TWO

TENTATIVE RULING:

The Motion to Compel Further Responses re Form Interrogatories (Set Two) was withdrawn by the moving party on March 13, 2018. Accordingly, the matter is dropped from calendar.

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.

2. DEFENDANT COUNTY OF SAN MATEO’S MOTION TO COMPEL PLAINTIFFS TO PROVIDE FURTHER RESPONSES TO DEFENDANT COUNTY OF SAN MATEO’S SPECIAL

INTERROGATORIES, SET ONE

TENTATIVE RULING:

The Motion to Compel Further Responses re Special Interrogatories (Set One), brought by Defendant County of San Mateo (the County), is denied. The Court finds that sanctions would be unjust in these circumstances. C.C.P. §2030.300(d).

The Court commends both parties on resolving numerous discovery items that were in the scope of the original motion and notes that all issues have been resolved except as to Special Interrogatory Nos. 4, 7 and 9 directed to Plaintiff Malaetele V. Iaulualo (the “father/husband”).

Special Interrogatory Nos. 4 and 9. These requests seek to have the father/husband identify physical or mental disabilities, as well as consultations with physicians, for a period of over ten years.

• [8:305.1] Although a plaintiff suing for personal injuries waives the physician-patient privilege (Ev.C. §996), plaintiff still has a right of privacy in his or her medical records. Disclosure thereof depends upon balancing the need for discovery against the need for confidentiality. Ordinarily, discovery of relevant medical history is allowed because defendants have no other means by which to obtain this information. [Palay v. Sup.Ct. (County of Los Angeles) (1993) 18 CA4th 919, 933-934, 22 CR2d 839, 848.]

• [8:305.2] But this does not make discoverable plaintiff’s “lifetime” medical history. Plaintiff’s right of privacy is protected as to physical and mental conditions unrelated to the claim or injury sued upon. [See Britt v. Sup.Ct. (San Diego Unified Port Dist.) (1978) 20 C3d 844, 864, 143 CR 695, 708.]

• [8:305.3] Where plaintiff makes no claim of mental or emotional distress, a “garden variety” personal injury action seeking damages for “pain and suffering” does not place plaintiff’s mental condition in issue. Plaintiff’s right to privacy in his or her postinjury psychotherapeutic records outweighs any need for discovery thereof. [Davis v. Sup.Ct. (Williams) (1992) 7 CA4th 1008, 1016, 9 CR2d 331, 336.]

Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2017) ¶¶8:305.1-8:305.3 (emphasis in original). Even if there is a basis for overriding the constitutional interest, any invasion of those interests must be “narrowly drawn” (John B. v. Sup. Ct. (Bridget B.) (2006) 38 Cal.4th 1177, 1198) and often a “less intrusive method of discovery” should be used where available (Allen v. Superior Court (1984) 151 Cal.App.3d 447, 449). Here, there is a declaration affirming that in form interrogatories, the father/husband “stated that he had no prior injuries similar to his accident-injuries” and that, at his deposition, the father/husband “answered all questions about pre-accident injuries or conditions that might have affected his ability to play football, such as a knee injury, and… testified that there were none.” Decl. of Armstrong (f: 03/07/18), ¶6. As such, it appears that less invasive methods have been tried and have not led to any basis upon which further discovery would be warranted. Further discovery into private medical history is therefore unwarranted.

Special Interrogatory No. 7. This request seeks to have the father/husband provide information regarding disability claims submitted to “the Social Security Administration” or “other governmental agency.” The husband/father argues that this information need not be produced because of: (1) the collateral source rule, and (2) the rule prohibiting disclosure of information provided to public employees “in confidence.”

With regard to the collateral source rule, while it is true that the “rule precludes the introduction of the plaintiff’s having been additionally compensated for the purpose of reducing damages,” “this evidence may be introduced for other purposes, such as to impeach the plaintiff’s claimed inability to work.” 6 Witkin, Summary of California Law (11th ed. 2017) §1808 (citation omitted). Here, the County appears to be seeking this information to dig into the issue of whether certain medical conditions were caused by the accident or preexisted the accident, so it does not appear to be motivated by proving that Plaintiffs were already compensated by a collateral source. As such, the collateral source rule does not apply.

As to whether the disability information is covered by the rule prohibiting disclosure of information provided to public employees “in confidence,” Plaintiffs cite Richards v. Superior Court (1968) 258 Cal.App.2d 635 as authority for prohibiting discovery of disability information. In “Richard[]s [the court] conclu[ded] that former Unemployment Insurance Code sections 2111 and 2714 created an absolute privilege under Evidence Code section 1040, subdivision (b)(1)…,” and the court in Department of Motor Vehicles v. Superior Court, which concerned a different statute, noted that “the language contained in section 1808.5 is entirely different from that of former Unemployment Insurance Code sections 2111 and 2714, at issue in Richards.” See Department of Motor Vehicles v. Superior Court (2002) 100 Cal.App.4th 363, 376. The disability records at issue here are those involving the “Social Security Administration” or “other governmental agency.” Evidence Code §1040(b)(1) specifically provides that “[d]isclosure is forbidden by an act of the Congress of the United States or a statute of this state.” Unemployment Insurance Code §2111 provides as follows:

Except as otherwise provided in Section 1094, and except with respect to information furnished by the department in connection with its participation as a party or as a lien claimant in a judicial or administrative proceeding, information obtained in the course of administration of this division is confidential and shall not be published or open to public inspection in any manner…

The parties do not brief, in detail, what is encompassed by an “administrative proceeding.” Thus, without more, submissions to the “Social Security Administration” or “other governmental agency” appear to be within the scope of the prohibition. As such, this discovery request is unwarranted.

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.

3. DEFENDANT COUNTY OF SAN MATEO’S MOTION TO COMPEL PLAINTIFFS TO PROVIDE FURTHER RESPONSES TO DEFENDANT COUNTY OF SAN MATEO’S REQUEST FOR PRODUCTION OF DOCUMENTS, SET TWo

TENTATIVE RULING:

The Motion to Compel Further Responses re Requests for Production of Documents (Set Two), brought by Defendant County of San Mateo (the County), is denied. The Court finds that sanctions would be unjust in these circumstances. C.C.P. §2031.310(h).

The Court commends both parties on resolving numerous discovery items that were in the scope of the original motion and notes that all issues have been resolved except as to Request for Production No. 21 directed to Plaintiff Malaetele V. Iaulualo (the “father/husband”).

Request for Production No. 21. This request seeks to have the father/husband provide information regarding disability claims submitted to “the Social Security Administration” or “other governmental agency.” The husband/father argues that this information need not be produced because of: (1) the collateral source rule, and (2) the rule prohibiting disclosure of information provided to public employees “in confidence.”

With regard to the collateral source rule, while it is true that the “rule precludes the introduction of the plaintiff’s having been additionally compensated for the purpose of reducing damages,” “this evidence may be introduced for other purposes, such as to impeach the plaintiff’s claimed inability to work.” 6 Witkin, Summary of California Law (11th ed. 2017) §1808 (citation omitted). Here, the County appears to be seeking this information to dig into the issue of whether certain medical conditions were caused by the accident or preexisted the accident, so it does not appear to be motivated by proving that Plaintiffs were already compensated by a collateral source. As such, the collateral source rule does not apply.

As to whether the disability information is covered by the rule prohibiting disclosure of information provided to public employees “in confidence,” Plaintiffs cite Richards v. Superior Court (1968) 258 Cal.App.2d 635 as authority for prohibiting discovery of disability information. In “Richard[]s [the court] conclu[ded] that former Unemployment Insurance Code sections 2111 and 2714 created an absolute privilege under Evidence Code section 1040, subdivision (b)(1)…,” and the court in Department of Motor Vehicles v. Superior Court, which concerned a different statute, noted that “the language contained in section 1808.5 is entirely different from that of former Unemployment Insurance Code sections 2111 and 2714, at issue in Richards.” See Department of Motor Vehicles v. Superior Court (2002) 100 Cal.App.4th 363, 376. The disability records at issue here are those involving the “Social Security Administration” or “other governmental agency.” Evidence Code §1040(b)(1) specifically provides that “[d]isclosure is forbidden by an act of the Congress of the United States or a statute of this state.” Unemployment Insurance Code §2111 provides as follows:

Except as otherwise provided in Section 1094, and except with respect to information furnished by the department in connection with its participation as a party or as a lien claimant in a judicial or administrative proceeding, information obtained in the course of administration of this division is confidential and shall not be published or open to public inspection in any manner…

The parties do not brief, in detail, what is encompassed by an “administrative proceeding.” Thus, without more, submissions to the “Social Security Administration” or “other governmental agency” appear to be within the scope of the prohibition. As such, this discovery request is unwarranted.