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Tentative Ruling
Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107


Kim Levine et al vs Janet Berschneider et al

Case No: 17CV03278
Hearing Date: Fri Feb 09, 2018 9:30

Nature of Proceedings: Motion to Compel

Tentative Ruling: The court denies plaintiff Kim Levine’s motion to compel production of medical records. The court denies the requests for monetary sanctions.


Background: Plaintiff Kim Levine, individually and as guardian ad litem for Santo Massine (collectively “Levine”), brings this action against defendants Janet Berschneider, aka Jenna Berg, in her capacity as trustee of the Berg Family Trust (“Berg”); and Bungalow LLC (Bungalow). Plaintiffs began residing on the lower floor of property at 322 East Arrellaga Street in Santa Barbara on February 14, 2017. Plaintiffs allege that they suffered adverse health symptoms as a result of mold in the premises. The causes of action in the complaint are: 1) negligence (general, failure to disclose latent defect, per se, failure to perform covenant to repair); 2) negligent infliction of emotional distress; 3) breach of implied warranty of habitability (common law); 4) breach of implied warranty of habitability (statutory); 5) private nuisance; 6) breach of contract.

Berg and Bungalow filed a cross-complaint against Kim Levine for breach of contract, negligence, and fraud/intentional deceit.

Motion for Monetary Sanction: Levine seeks an order compelling production of medical records of defendant’s son, Emerson Steady, subject to a protective order if necessary. Levine also seeks a monetary sanction of $2,000 against Berg and her counsel. Berg opposes the motion and seeks a monetary sanction of $1,650 against Levine and her counsel.

Levine and her son, Santo, became sick during the time they occupied the first floor of the subject property, causing Santo to have to withdraw from school. Berg and her two sons lived directly above Levine. Levine is informed and believes that Emerson also became extremely sick during that period, such that Emerson was forced to miss long periods of time from school. On November 13, 2017, Levine issued a deposition subpoena for production of business records to the custodian of records for Vincent C. Tubiolo, M.D. On November 14, Levine served the subpoena and notice to consumer on Berg’s counsel. The subpoena seeks:

All Writings as defined by Evidence Code Sec. 250 which refer, relate or pertain in any way to EMERSON STEADY any/all medical records records (sic) from January 1, 2016 to the present, including but not limited to any records/ documents that may be stored digitally and/or electronically: documents, medical reports, doctor’s entries, nurse’s notes, progress reports, cardiology reports, radiology reports, x-ray reports, MRI reports, lab reports, pathology reports, monitor strips, physical therapy records, case history, emergency reports, diagnosis, prognosis, condition, admit and discharge records. All emails between physicians and the patient regarding complaints, symptoms, and treatment.

On November 20, 2017, Berg, on behalf of her son, served an objection to the subpoena on the basis of doctor-patient privilege. Berg contends that Emerson’s medical records are protected by the physician-client privilege and Emerson’s constitutional right to privacy and that Levine has not shown a compelling need for the information.

Analysis: “The party requesting a consumer’s personal records may bring a motion under Section 1987.1 to enforce the subpoena within 20 days of service of the written objection.” CCP § 1985.3(g). (Levine also refers to CCP § 1985.6(f)(4), but that only applies to employment records.)

1. Efforts to Reach an Informal Resolution: CCP § 1985.3(g) requires “a declaration showing a reasonable and good faith attempt at informal resolution of the dispute” between the parties.

In the court’s experience, counsel for these parties have demonstrated a lack of cooperative efforts when it comes to discovery. In this instance, Levine’s counsel mailed a letter 16 days after service of the objection. Nine days later he filed this motion. Berg’s counsel received the letter on Friday, December 8. On December 12, she mailed a response. Levine’s counsel says he did not receive that letter until 3:30 p.m. on December 15 at 3:30 p.m., three minutes after the court received the motion. Counsel who intends to insist on tight deadlines for discovery motions should use more modern and efficient means of communication, such as email. (December 15 was the 20th day, plus five days for mailing, after service of the objection. Berg’s counsel says that Levine’s counsel has rejected documents served electronically. But that is different from correspondence.) Alternatively, they can do something old-fashioned—pick up the phone and have a conversation. The court finds that both parties failed to engage in a reasonable and good faith attempt at informal resolution.

Berg offered a compromise—the release of any medical records indicating a diagnosis for mold exposure. Berg’s counsel states that Emerson has never been diagnosed with any illness related to mold exposure. Rather he was diagnosed with mononucleosis. The offer of records indicating a diagnoses for mold exposure is apparently an offer of no records. Levine contends that limiting the records to a diagnosis of mold exposure is not useful because Berg did not know there was mold at the residence until May 30, 2017, and would not have alerted doctors that mold may have been a factor.

In evaluating efforts to resolve a discovery dispute, the court must consider whether, from the perspective of a reasonable person in the position of the discovering party, additional effort appeared likely to bear fruit. The level of effort that is reasonable is different in different circumstances, and may vary with the prospects for success. These considerations are entrusted to the trial court’s discretion and judgment. Obregon v. Superior Court, 67 Cal.App.4th 424, 432-433 (1998).

Based on the positions of the parties, the court finds it apparent that reasonable and good faith efforts would have broken the impasse here. Therefore, the court will consider the merits of the motion.

2. Medical Records: “It is settled that a person’s medical history … falls within the zone of informational privacy protected under [Cal. Const. art. I, § 1].” People v. Martinez, 88 Cal.App.4th 465, 474-475 (2001). “A person’s medical profile is an area of privacy infinitely more intimate, more personal in quality and nature than many areas already judicially recognized and protected.” Board of Medical Quality Assurance v. Gherardini, 93 Cal.App.3d 669, 678 (1979). “[I]nquiry into one’s private affairs will not be constitutionally justified simply because inadmissible, and irrelevant, matter sought to be discovered might lead to other, and relevant, evidence. Board of Trustees v. Superior Court, 119 Cal.App.3d 516, 525 (1981) [italics in original].

The party seeking the constitutionally protected information has the burden of establishing that the information sought is directly relevant to the claims.” Tylo v. Superior Court, 55 Cal.App.4th 1379, 1387 (1997). “[E]ven when a plaintiff files an action that places his or her medical records at issue, waivers of constitutional rights are narrowly construed and not lightly found.” Bearman v. Superior Court, 117 Cal.App.4th 463, 473 (2004). Here, Levine seeks the medical records of a non-party who has not placed his medical condition at issue.

An individual’s medical records may be relevant and material in the furtherance of the State’s interest in discovering the truth in legal proceedings. “An intrusion upon constitutionally protected areas of privacy requires a balancing of the juxtaposed rights, and the finding of a compelling state interest.” Manela v. Superior Court, 177 Cal.App.4th 1139, 1150 (2009). [internal quotations and citations omitted]. “It is the essence of California decisions on the privacy of medical information that only a compelling state interest can justify disclosure.” Johnetta J. v. Mun. Court, 218 Cal.App.3d 1255, 1278 (1990).

Levine maintains that if Emerson had been suffering from mold related symptoms prior to Levine’s residency at the subject property, that fact would be directly relevant to the source and cause of Levine’s and her son’s symptoms, as well as to the reasonableness of Berg’s actions. Levine states that the mono-type symptoms that Emerson was suffering from (i.e., fever, sore throat, coughing, headaches, fatigue, loss of appetite, etc.) are virtually identical to the symptoms suffered by Santo. This is a fact Levine attempts to support with her declaration, submitted with the reply, about what she found on the Internet regarding symptoms for mono. Since it is submitted with the reply (see below), there has been no opportunity to object to this declaration. Internet information or a “web posting” is clearly objectionable hearsay. Knapp v. Doherty, 123 Cal.App.4th 76, 101-102 (2004); United States v. Jackson, 208 F.3d 633 (7th Cir. 2000). The court will not consider the attempt to equate mononucleosis symptoms with mold exposure symptoms.

In reply, Levine refers to Berg’s November 6, 2017 deposition, in which she testified regarding Emerson’s symptoms and that his doctors were not told of potential mold exposure. It is not clear why Levine did not provide this information with the motion. “The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers.” Jay v. Mahaffey, 218 Cal.App.4th 1522, 1537 (2013). The inclusion of additional evidentiary matter with the reply “should only be allowed in the exceptional case.” Plenger v. Alza Corp., 11 Cal.App.4th 349, 362 n8 (1992). A trial court has discretion whether to accept new evidence with reply papers, provided it permits the other party an opportunity to respond. Alliant Ins. Services, Inc. v. Gaddy, 159 Cal.App.4th 1292, 1308 (2008).

Whatever Emerson’s symptoms and causes thereof, Levine has not demonstrated a compelling need for his medical records. The issue here is whether there was mold on the premises and whether it caused Levine and her son to become sick. This can be proven with mold testing and expert medical testimony about their illnesses and causes. Speculation about the cause of Emerson’s symptoms by experts who have not examined him will not further that proof.

Nor are Emerson’s medical records necessary to prove Berg’s reasonableness in dealing with mold. Levine already has evidence of Berg’s prior exposure to and presumed knowledge of mold. That her son became sick prior to her knowledge of mold on the premises is not directly relevant.

Balancing the juxtaposed rights of the parties, the court does not find a compelling interest in the discovery of Emerson’s medical records. The court will deny the motion.

3. Monetary Sanction: Neither party cites any relevant mandatory provision for a monetary sanction. Instead, they both sought fees for an abuse of the discovery process, citing 2023.030(a). That statute provides for a discretionary sanction. The court does not find a monetary sanction is warranted.

4. Order: The court denies plaintiff Kim Levine’s motion to compel production of medical records. The court denies the requests for monetary sanctions.

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