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This case was last updated from Los Angeles County Superior Courts on 06/19/2019 at 00:06:16 (UTC).

JHOANA ALMACHE VS LAC USC MEDICAL CENTER ET AL

Case Summary

On 09/29/2017 JHOANA ALMACHE filed a Labor - Other Labor lawsuit against LAC USC MEDICAL CENTER. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is ELAINE LU. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7643

  • Filing Date:

    09/29/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Other Labor

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

ELAINE LU

 

Party Details

Plaintiff and Petitioner

ALMACHE JHOANA

Defendants and Respondents

BROWN RICHARD

LAC USC MEDICAL CENTER

DOES 1 - 5

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

GLEASON PAUL M. ESQ.

BECERRA JOSEPH R. ESQ.

BECERRA JOSEPH RAY ESQ.

GLEASON PAUL MICHAEL ESQ.

Defendant and Respondent Attorneys

PETERSON GEORGE E.

BURKWITZ AVI A

KARAYAN ARSEN

PETERSON GEORGE ERNEST

 

Court Documents

DEFENDANT, RICHARD BROWN'S ANSWER TO PLAINTIFF'S COMPLAINT

12/11/2017: DEFENDANT, RICHARD BROWN'S ANSWER TO PLAINTIFF'S COMPLAINT

NOTICE OF CASE MANAGEMENT CONFERENCE

12/12/2017: NOTICE OF CASE MANAGEMENT CONFERENCE

DEFENDANT, COUNTY OF LOS ANGELES' ANSWER TO PLAINTIFF'S COMPLAINT

11/27/2017: DEFENDANT, COUNTY OF LOS ANGELES' ANSWER TO PLAINTIFF'S COMPLAINT

PROOF OF SERVICE SUMMONS

10/25/2017: PROOF OF SERVICE SUMMONS

PROOF OF SERVICE SUMMONS

10/25/2017: PROOF OF SERVICE SUMMONS

NOTICE OF CASE MANAGEMENT CONFERENCE & OSC RE PROOF OF SERVICE

10/11/2017: NOTICE OF CASE MANAGEMENT CONFERENCE & OSC RE PROOF OF SERVICE

NOTICE OF CASE MANAGEMENT CONFERENCE & OSC RE PROOF OF SERVICE

10/11/2017: NOTICE OF CASE MANAGEMENT CONFERENCE & OSC RE PROOF OF SERVICE

SUMMONS

9/29/2017: SUMMONS

PLAINTIFF'S COMPLAINT FOR DAMAGES: 1) ACTUAL AND/OR PRECEIVED DISABILITY DISCRIMINATION: GOV. CODE, 12940, SUBD. (A); ETC

9/29/2017: PLAINTIFF'S COMPLAINT FOR DAMAGES: 1) ACTUAL AND/OR PRECEIVED DISABILITY DISCRIMINATION: GOV. CODE, 12940, SUBD. (A); ETC

 

Docket Entries

  • 06/12/2019
  • at 08:30 AM in Department 26, Elaine Lu, Presiding; Hearing on Motion for Summary Judgment - Not Held - Continued - Court Congestion

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  • 06/04/2019
  • Notice of Ruling; Filed by Jhoana Almache (Plaintiff)

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  • 06/03/2019
  • at 08:30 AM in Department 26, Elaine Lu, Presiding; Hearing on Motion to Quash (Notice of Motion and Motion for Order Quashing Subpoenas; Memorandum of Points and Authorities; Declaration of Paul Gleason)

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  • 05/28/2019
  • at 08:30 AM in Department 26, Elaine Lu, Presiding; Hearing on Motion to Quash (Notice of Motion and Motion for Order Quashing Subpoenas; Memorandum of Points and Authorities; Declaration of Paul Gleason) - Held - Continued

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  • 05/28/2019
  • Minute Order ( (Hearing on Motion to Quash Notice of Motion and Motion for Or...)); Filed by Clerk

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  • 05/20/2019
  • Reply (Memorandum of Points and Authorities in Support of Plaintiff's Motion to Quash Subpoena); Filed by Jhoana Almache (Plaintiff)

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  • 05/20/2019
  • Reply (Memorandum of Points and Authorities in Support of Plaintiff's Motion to Quash Subpoena); Filed by Jhoana Almache (Plaintiff)

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  • 05/14/2019
  • Opposition (DEFENDANTS COUNTY OF LOS ANGELES AND RICHARD BROWN'S OPPOSITION TO PLAINTIFF'S MOTION TO QUASH SUBPOENA); Filed by LAC USC Medical Center (Defendant)

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  • 02/19/2019
  • Notice (of Continued Final Status Conference); Filed by Jhoana Almache (Plaintiff)

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  • 02/01/2019
  • Notice Re: Continuance of Hearing and Order; Filed by Clerk

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51 More Docket Entries
  • 10/25/2017
  • Proof-Service/Summons; Filed by Jhoana Almache (Plaintiff)

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  • 10/25/2017
  • PROOF OF SERVICE SUMMONS

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  • 10/25/2017
  • Proof-Service/Summons; Filed by Jhoana Almache (Plaintiff)

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  • 10/25/2017
  • PROOF OF SERVICE SUMMONS

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  • 10/11/2017
  • NOTICE OF CASE MANAGEMENT CONFERENCE & OSC RE PROOF OF SERVICE

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  • 10/11/2017
  • Notice of Case Management Conference; Filed by Clerk

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  • 10/11/2017
  • NOTICE OF CASE MANAGEMENT CONFERENCE & OSC RE PROOF OF SERVICE

    Read MoreRead Less
  • 09/29/2017
  • PLAINTIFF'S COMPLAINT FOR DAMAGES: 1) ACTUAL AND/OR PRECEIVED DISABILITY DISCRIMINATION: GOV. CODE, 12940, SUBD. (A); ETC

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  • 09/29/2017
  • Complaint; Filed by Jhoana Almache (Plaintiff)

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  • 09/29/2017
  • SUMMONS

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Tentative Rulings

Case Number: BC677643    Hearing Date: January 05, 2021    Dept: 26

IN ORDER TO IMPLEMENT PHYSICAL DISTANCING AND UNTIL FURTHER NOTICE, THE COURT STRONGLY ENCOURAGES ALL COUNSEL AND ALL PARTIES TO APPEAR REMOTELY FOR NON-TRIAL AND NON-EVIDENTIARY MATTERS, INCLUDING THIS MOTION.

Superior Court of California

County of Los Angeles

Department 26

jhoana almache,

Plaintiff,

v.

LAC USC Medical Center; RICHARD BROWN; et al.

Defendants.

Case No.: BC677643

Hearing Date: January 5, 2021

[TENTATIVE] order RE:

defendant’s MOTION to compel the deposition of richard cummings

Background

On September 29, 2017, Plaintiff Jhoana Almache (“Plaintiff”), a Registered Nurse, initiated this employment discrimination action against her employer, County of Los Angeles[1] as well as her Nurse Manager, Richard Brown (jointly “Defendants”). The complaint asserts claims for: (1) Disability Discrimination; (2) Failure Accommodate; (3) Failure to Engage in an Interactive Process; (4) Unlawful Retaliation; (5) Harassment; (6) Failure to Prevent Harassment, Discrimination and/or Retaliation; (7) Violation of Health & Safety Code § 1278.5; (8) Violation of Labor Code § 1102.5; (9) Wrongful Adverse Employment Actions in Violation of Public Policy; and (10) Intentional Infliction of Emotional Distress.[2]

On September 9, 2020, Defendants filed the instant motion to compel the deposition of Richard Cummings (“Cummings”), the husband of Plaintiff. On December 21, 2020, Plaintiff filed an opposition. On December 22, 2020, Defendants filed a notice of non-opposition. On December 23, 2020, Plaintiff filed a declaration in response to the notice of non-opposition. On December 28, 2020, the parties filed a joint statement pursuant to the September 29, 2020 minute order. On December 28, 2020, Defendants filed a reply.

Timely Opposition

“All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days, and all reply papers at least five court days before the hearing.” (Code Civ. Proc. § 1005(b).) The court may refuse to consider a late-filed paper. (Cal. Rules of Court, Rule 3.1300(d).)

Defendants contend that the opposition filed on December 21, 2020 is untimely. However, nine court days before January 5, 2021 is December 21, 2020. Therefore, the opposition is timely.

Legal Standard

“Any party may obtain discovery . . . by taking in California the oral deposition of any person, including any party to the action. The person deposed may be a natural person, an organization such as a public or private corporation, a partnership, an association, or a governmental agency.” (Code Civ. Proc. § 2025.010.)

As to non-party witnesses two separate sections provide a basis to compel the deposition pursuant to a subpoena. First, an order compelling the deposition may be sought under Code of Civil Procedure section 1987.1 provides that “[i]f a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by [a party or a witness] . . . 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.” Second, an order compelling the deposition may be sought pursuant to Code of Civil Procedure section 2025.480 which provides that “[i]F a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.”

Timeliness of the Motion

A motion to compel the deposition of a non-party must be brought within 60 days of the record of the deposition, which includes a response to a subpoena. (See Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 127; see also Code Civ. Proc. §2025.480(b).)

Here, an objection was provided on July 21, 2020. (Halloran Decl. ¶ 19, Ex. N.) The instant motion was filed September 9, 2020 -- fifty days after service of the objection. Accordingly, the instant motion is timely.

Meet and Confer

Code of Civil Procedure § 2025.480 requires that a motion to compel deposition be accompanied by a meet and confer declaration under Code of Civil Procedure § 2016.040. (Code Civ. Proc. § 2025.480(b).) Code of Civil Procedure § 2016.040 provides that “[a] meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc. § 2016.040.)

Plaintiff contends that Defendants’ meet and confer efforts were not in good faith. Plaintiff points out that Defendants fail to cite to any testimony or evidence as to why the deposition of Cummings was relevant to any event, claim or defense. (Opposition pp.4-5 § III(A).) The court is not persuaded. Plaintiff overlooks the extensive conferring between Counsel on this issue and Defendants’ multiple attempts to meet and confer.

Defendants have been attempting to obtain the deposition of Cummings since at least October 9, 2019. (Halloran Decl. ¶ 2.) Plaintiff’s counsel did not represent Cummings and therefore would not provide dates for the deposition of Cummings. (Id. ¶¶ 3, Exs. B, D, E.) Accordingly, Defendants attempted to personally serve Cummings five times from October 12, 2019 to June 29, 2020. (Id. ¶¶ 5, 8-17, Exs. C, F-L.) On June 29, 2020, after hiring a private investigator to confirm that Cummings did reside at the address where service was attempted, Cummings was personally served. On July 15, 2020, Defendants were informed that Cummings would be represented by Plaintiff’s counsel and that Cummings wished to attend the deposition by video. (Id. ¶ 18, Ex. M.) After business hours, Defendants were then served with an objection to the deposition. (Id. ¶ 19, Ex. N.) In response, Defendants sent a meet and confer letter on July 27, 2020. (Id. ¶ 20, Ex. O.) Defendants also attempted to contact Plaintiff’s counsel regarding this issue leaving a voicemail and a follow up email on July 31, 2020. (Id. ¶ 21, Ex. P.) On July 31, 2020, Plaintiff responded stating that the objections raised were proper and that Plaintiff would oppose any motion to compel. (Id. Ex. Q.) There is no indication from the response that any further meet and confer would be fruitful. Accordingly, the court finds that Defendants have adequately met and conferred on the issue.

Discussion

On June 29, 2020, Cummings was personally served with a deposition subpoena for a deposition scheduled on July 24, 2020. (Halloran Decl. ¶¶ 16-17, Exs. J-L.) On July 21, 2020, Cummings filed an objection to the deposition, which states:

Pursuant to Evidence Code§§ 970, 971 et seq. Cummings objects to the Deposition Subpoena in its entirety and invokes, on his own behalf, all rights and privileges provided for in Evidence Code §§ 970 and 971 et seq.

Cummings indicated that he would not appear for the deposition based on this objection.

(Id. Ex. N.)

Defendants contend that (1) the objection was untimely, (2) the objection is procedurally improper for challenging a deposition subpoena, and (3) the objection is waived pursuant to Evidence Code § 973(b). In opposition, Plaintiff contends that the (1) objection is timely and procedurally proper and (2) that the objection is not waived pursuant to Evidence Code § 973(b).

Relevance

Though not raised as an objection, Plaintiff repeatedly states in her opposition that the deposition sought is irrelevant to the instant action. (See e.g. Opposition p.1:12-13, [“Although completely irrelevant as to any claim or defense asserted in this case …”]; Id. p.5:17-19, [“Defendants have not identified one line of testimony, document, or discovery response that would implicate that Mr. Cummings is a ‘percipient witness’ to any relevant event in this case.”].)

“[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc. § 2017.010.) “‘[F]or discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement’ and ‘[a]dmissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence.’ These rules are applied liberally in favor of discovery . . . and (contrary to popular belief) fishing expeditions are permissible in some cases.” (Cruz v. Superior Court (2004) 121 Cal.App.4th 646, 653, [internal citations omitted].)

Here, the complaint expressly alleges emotional distress damages. (Complaint ¶ 122.) As Plaintiff’s husband, Cummings would likely be a percipient witness of the emotional distress that Plaintiff suffered. Thus, Cummings’s deposition is plainly relevant. Moreover, Defendants directly note the relevance of Cummings’s testimony in their reply. (Reply p.2:23-27, [“Plaintiff claims that because Mr. Cummings’ name has not come up during discovery in this lawsuit, that he is not a ‘percipient witness.’ See Plaintiff’s Opposition, 1:22-26. This argument fails to explain how Mr. Cummings has not witnessed, for example, his wife taking medical leave, his wife experiencing medical issues at home, his wife experiencing emotional distress that she claims she suffers from, his wife talking about her issues at work, etc.”].)

To the extent that Plaintiff has preserved her objection on the grounds of relevance, the objection is overruled.

Marital Privilege

Evidence Code section 970 provides that “a married person has a privilege not to testify against his spouse in any proceeding.” Evidence Code section 971 provides that “a married person whose spouse is a party to a proceeding has a privilege not to be called as a witness by an adverse party to that proceeding without the prior express consent of the spouse having the privilege under this section unless the party calling the spouse does so in good faith without knowledge of the marital relationship.”

However, as “privileges ‘prevent the admission of relevant and otherwise admissible evidence’ they ‘should be narrowly construed.’ [Citation.] Applying this maxim in the marital privileges context, our courts have broadly construed the exceptions to these privileges. (People v. Sinohui (2002) 28 Cal.4th 205, 212.)

Moreover, marital privileges can be waived. “There is no privilege under this article in a civil proceeding brought or defended by a married person for the immediate benefit of his spouse or of himself and his spouse.” (Evid. Code, § 973, [italics added].) As noted by both parties, very few courts have analyzed what constitutes an immediate benefit.

Plaintiff contends that pursuant to Duggan v. Superior Court In Duggan, the plaintiff spouse sued for compensatory and punitive damages for fraud and to establish a part ownership interest in parcels of real property acquired by a partnership of which plaintiff spouse was a part. (Id. at p. 269.) On a preemptory writ, the Court of Appeal in Duggan reversed the trial court’s order compelling the deposition of the non-party spouse. The Court of Appeal allowed the non-party spouse to claim the spousal testimonial privilege. (Id. at pp.269-270.) Critically, the Court specified that this was because under Corporations Code section 15025(2)(e), a partner's right in partnership property is not community property. (Id. at p.272.) The Court of Appeal concluded that due to Corporations Code section 15025(2)(e), “petitioner’s spouse has no present, immediate, or direct interest in the property constituting the partnership assets. Any claim to a community property interest in the partnership would be against petitioner rather than real parties, and under the showing made here, the action is not being prosecuted for the immediate benefit of the person whose deposition is sought.” (Ibid.) Accordingly, the Court of Appeal in Duggan decided that the spouse was therefore not a person “for whose immediate benefit the action was brought, solely by virtue of a potential community property interest in any recovery which petitioner might obtain.” (Id. at p.270, [italics added].)

In contrast, in the instant action, the recovery sought in the lawsuit is not merely a potential community property interest but a direct community property interest. (See Fam. Code, § 780, [“[M]oney and other property received or to be received by a married person in satisfaction of a judgment for damages for personal injuries, or pursuant to an agreement for the settlement or compromise of a claim for such damages, is community property if the cause of action for the damages arose during the marriage.”]; see also Fam. Code, § 760, [“Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.”].) Thus, as the damages sought in the instant action would be directly community property, Duggan’s core reasoning is inapplicable.

Though not directly on point, the Court finds the reasoning in Hand v. Superior Court Though based on former Code of Procedure section 2019(a)(4)[3], the Court of Appeal discussed the meaning of the term “immediate benefit” as to a non-party spouse and followed much of the same reasoning and legal authority as the court in Duggan. In Hand, the Court of Appeal found that “the determination whether community property personal injury damages are for the ‘immediate benefit’ of the non-injured spouse turns upon the status of the marriage. If, as here, at the time that spousal testimony is sought, the marriage is intact, unliquidated claims for community property personal injury damages are community property in which the non-injured spouse has a present interest and entitlement to a share of the proceeds when recovered. They are for his or her ‘immediate benefit.’ [Citation.]” (Id. at p.442.)

Moreover, as noted above, evidentiary privileges are to be narrowly construed. The court finds that the instant civil action is brought by Plaintiff for the immediate benefit of her spouse, Cummings, and thus, pursuant to Evidence Code § 973, the marital privilege does not apply. In line with the reasoning of Hand v. Superior Court, and given that the instant deposition is relevant, Defendants’ motion to compel the deposition of Cummings is GRANTED.

Sanctions

“The court shall impose a monetary sanction … against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2025.480(j).)

In light of the sparse authority on the applicability of the marital privilege here, the court finds that Plaintiff acted with substantial justification. Accordingly, Defendants’ request for sanctions is DENIED.

CONCLUSION AND ORDER

Based on the foregoing, Defendants’ motion to compel the deposition of Richard Cummings is GRANTED. Richard Cummings is ordered to appear for deposition, remotely or with any other necessary precautions due to the COVID-19 pandemic, within fifteen (15) days of notice of this order at a date and time noticed by Defendants.

Defendants’ request for sanctions is DENIED.

The Moving Parties are ordered to provide notice of this order and file proof of service of such.

DATED: January 5, 2021 ___________________________

Elaine Lu

Judge of the Superior Court


[1] Erroneously sued as LAC USC Medical Center

[2] On June 22, 2018, the court granted Defendant Brown’s motion for judgment on the pleadings as to the tenth cause of action. (Minute Order 6/22/18.)

[3] “[T]his is a case arising under Code of Civil Procedure section 2019, subdivision (a)(4), which permits service of a notice of deposition of ‘a person for whose immediate benefit [an] action or proceeding is prosecuted” upon the attorney for the plaintiff.” (Hand v. Superior Court (1982) 134 Cal.App.3d 436, 439, [italics in original].)

Case Number: BC677643    Hearing Date: September 29, 2020    Dept: 26

IN ORDER TO IMPLEMENT PHYSICAL DISTANCING AND UNTIL FURTHER NOTICE, THE COURT STRONGLY ENCOURAGES ALL COUNSEL AND ALL PARTIES TO APPEAR REMOTELY FOR NON-TRIAL AND NON-EVIDENTIARY MATTERS, INCLUDING THIS MOTION.

Superior Court of California

County of Los Angeles

Department 26

jhoana almache,

Plaintiff,

v.

LAC USC Medical Center; RICHARD BROWN; et al.

Defendants.

Case No.: BC677643

Hearing Date: September 29, 2020

[TENTATIVE] order RE:

Plaintiff’s MOTION to quash subpoenas

Background

This is an employment discrimination action brought by Jhoana Almache (“Plaintiff”), a Registered Nurse, against her employer, County of Los Angeles[1] (“Defendant”) as well as her Nurse Manager, Richard Brown and Does 1 through 5. On September 29, 2017, Plaintiff filed the instant action against defendants alleging: (1) Disability Discrimination; (2) Failure to Accommodate; (3) Failure to Engage in an Interactive Process; (4) Unlawful Retaliation; (5) Harassment; (6) Failure to Prevent Harassment, Discrimination and/or Retaliation; (7) Violation of Health & Safety Code § 1278.5; (8) Violation of Labor Code § 1102.5; (9) Wrongful Adverse Employment Actions in Violation of Public Policy; and (10) Intentional Infliction of Emotional Distress.[2]

On July 8, 2020, Plaintiff filed the instant motion to quash subpoenas from that Defendant served on Kaiser Foundation Hospital/SCPMG ROI Unit (“Hospital”); So. California Permanente Medical Group – Billing (“Billing”); Kaiser Foundation Hospital/SCPMG - Radiology ROI Unit (“Radiology”); and Kaiser Foundation Health Plan Inc. c/o California Service Center ROI Team (“Service Center”) (collectively “Kaiser Subpoenas”). On September 15, 2020, Defendant filed an opposition. On September 22, 2020, Plaintiff filed a reply.

Legal Standard

Where the witness whose deposition is sought is not a party, a subpoena must be served to compel his or her attendance, testimony, or production of documents. (CCP § 2020.010(b).) 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. (CCP § 2020.020.) The court, upon motion or the court’s own motion, “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.” (CCP § 1987.1(a).)

In addition, the court may make any other orders as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” (CCP § 1987.1(a).) “A deposition subpoena that commands only the production of business records for copying shall designate the business records to be produced either by specifically describing each individual item or by reasonably particularizing each category of item . . .” (CCP § 2020.410(a).)

Pursuant to Code of Civil Procedure § 2017.010:

Unless otherwise limited by order of the court…any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.

(Id.)

Discussion

Kaiser Subpoenas

The subpoenas at issue request production of the following documents:

Hospital Subpoena:

THE RECORDS REQUESTED ARE from 12/08/2017 to present FOR THE FOLLOWING TYPES OF RECORDS ONLY PERTAINING TO TREATMENT BY YING YANG, M. D.: ANY AND ALL MEDICAL RECORDS, DOCUMENTS, MEDICAL REPORTS, INCLUDING DOCTORS' ENTRIES, NURSES' CHARTS, PROGRESS REPORTS, PHYSICAL THERAPY RECORDS, PATHOLOGY REPORTS, X-RAY REPORTS, LAB REPORTS, CASE HISTORY, EMERGENCY ROOM RECORDS, ADMITTING SHEETS, SPECIAL TESTS, INPATIENT AND OUTPATIENT RECORDS, AND ANY SIGN-IN SHEETS, ANY AND ALL PHARMACY/PRESCRIPTION RECORDS, ACTIVITY RX NOTES, INCLUDING PRESCRIPTIONS FILLED AND REFILLED, INCLUDING BUT NOT LIMITED TO ANY RECORDS/DOCUMENTS THAT MAY BE STORED DIGITALLY AND/OR ELECTRONICALLY INCLUDING ALL PATIENT ORDERS AND PATIENT RESULTS AND SPECIFICALLY FO.R ANY DISCHARGE ORDERS, ALL DETAILED SCREEN SHOTS WITHIN ANY COMPUTER SYSTEM PERTAINING TO THE CARE AND TREATMENT, DIAGNOSIS, PROGNOSIS, CONDITION, DISCHARGE, AFFECTING OR RELATING TO JHOANA ALMACHE …

(Gleason Decl. Ex. A.)

Billing Subpoena:

THE RECORDS REQUESTED ARE from 12/08/2017 to present FOR THE FOLLOWING TYPES OF RECORDS ONLY PERTAINING TO TREATMENT BY YING YANG, M.D.: ANY AND ALL BILLINGS, STATEMENTS OF ACCOUNTS, WRITINGS, AND DOCUMENTS REFLECTING THE FOLLOWING: ANY AND ALL PAYMENTS MADE OR RECEIVED, ANY AND ALL CREDITS, ADJUSTMENTS, WRITE-OFFS, RECONCILIATIONS, CONTRACT PRICE PAYMENTS OR REDUCTION, PAYMENTS BY ANY HEALTH INSURANCE ENTITY, PERSONAL PAYMENTS BY OR TO SAID PATIENT FROM ANY SOURCE, HMO, PPO, MEDI-CAL, MEDICARE OR CONTRACT PAYMENTS BY ANY ENTITY CONCERNING SAID PATIENT, BILLING LEDGERS, REPORTS AND/OR STATEMENTS OF CHARGES RENDERED AND ANY INSURANCE RECORDS, INCLUDING BUT NOT LIMITED TO ANY RECORDS/DOCUMENTS THAT MAY BE STORED DIGITALLY AND/OR ELECTRONICALLY THIS REQUEST FOR RECORDS INCLUDES ANY AND ALL EVIDENCE OF ANY PAYMENTS FROM ANY SOURCE REGARDING THE ACCOUNT OF THIS PATIENT TO OR FROM ANY PERSON AND/OR ENTITY, IN REFERENCE TO JHOANA ALMACHE

(Gleason Decl. Ex. B.)

Radiology Subpoena:

THE RECORDS REQUESTED ARE from 12/08/2017 to present FOR THE FOLLOWING TYPES OF RECORDS ONLY PERTAINING TO TREATMENT BY YING YANG, M. D.: ANY AND ALL FILMS, ORIGINAL X-RAY FILMS, CT SCANS AND MRI FILMS, INCLUDING ANY FILMS/IMAGES THAT MAY BE STORED DIGITALLY AND/OR ELECTRONICALLY, RELATING TO JHOANA ALMACHE …

(Gleason Decl. Ex. C.)

Service Center Subpoena:

THE RECORDS REQUESTED ARE from 12/08/2017 to present FOR THE FOLLOWING TYPES OF RECORDS: ANY AND ALL INSURANCE RECORDS, DOCUMENTS, REPORTS, CLAIMS, APPLICATIONS, ENROLLMENT RECORDS, MEMBERSHIP RECORDS, POLICIES, MEDICAL RECORDS, BENEFITS, EXPLANATION OF BENEFITS, BILLINGS, DENIALS, PAYMENTS, PAYMENT HISTORY AND ANY OTHER RECORDS, INCLUDING BUT NOT LIMITED TO ANY RECORDS/DOCUMENTS THAT MAY BE STORED DIGITALLY AND/OR ELECTRONICALLY RELATING TO JHOANA ALMACHE, … TO INCLUDE MEDICAL RECORDS, X-RAYS AND RECORDS ONLY PERTAINING TO TREATMENT BY YING YANG, M.D.

(Gleason Decl. Ex. D.)

Plaintiff contends that the requested documents of Plaintiff’s medical records are protected under the right of privacy.

Right of Privacy

The right of privacy in the California Constitution (art. I, § 1), “protects the individual's reasonable expectation of privacy against a serious invasion.” (Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1250 [italics in original]; See Williams v. Superior Court (2017) 3 Cal.5th 531, 552 [“In Hill, we established a framework for evaluating potential invasions of privacy. The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations.”].)

As the Supreme Court has “previously observed, the right of privacy extends to sexual relations (Vinson v. Superior Court, supra, 43 Cal.3d at p. 841, 239) and medical records (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 41.).” (John B. v. Superior Court “[T]he burden [is] on the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion, and against that showing must weigh the countervailing interests the opposing party identifies, as Hill requires.” (Williams, supra, 3 Cal.5th 531, 557.) “Only obvious invasions of interests fundamental to personal autonomy must be supported by a compelling interest.” (Ibid.)

Here, the medical records sought in the Kaiser Subpoenas are protected under the right of privacy. In applying the Hill factors, there is a legally recognized right of privacy in Plaintiff’s medical records, there is an objectively reasonable expectation that medical records will not be disclosed, and there is an expected privacy interest in avoiding disclosure. Accordingly, the court turns to whether Defendant shows that “the information is ‘directly relevant’ and ‘essential to the fair resolution’ of the lawsuit.” (Alch v. Superior Court Britt v. Superior Court

The medical records pertaining to Dr. Yang’s treatment of Plaintiff are directly relevant to the case at hand. The complaint alleges disability discrimination and a back related injury resulting in Plaintiff’s need for accommodations. (Complaint ¶¶ 9, 22-24, 97.) Moreover, in response to interrogatories, Plaintiff stated that Dr. Yang was the physician who treated her with regard to any injury that she attributed to this lawsuit. (Halloran Decl. Ex. A.)

Plaintiff does not dispute any of this but contends that the Kaiser Subpoenas are overbroad as they could include medical records made by other physicians regarding Plaintiff’s personal health matters that are unrelated to this action. (Reply, p.1:10-13.) Plaintiff’s overbreadth concerns are unfounded. By their express terms, the Kaiser Subpoenas seek only records that are related to this action.

Each of the subpoenas at issue is narrowly tailored to require production of records “only pertaining to treatment by Dr. Ying Yang, M.D.” (Gleason Decl. Ex. A-D.) Plaintiff has conceded that all of the records created by Dr. Yang in connection with his treatment of Plaintiff are directly relevant to the case at hand.[3] The court finds that all records relied upon by Dr. Yang in the treatment of Plaintiff and in finding work restrictions to be necessary are also directly relevant to Plaintiff’s claims. Accordingly, the court overrules Plaintiff’s overbreadth objections.[4]

CONCLUSION AND ORDER

Based on the foregoing, Plaintiff’s motion to quash the subpoenas to Kaiser Foundation Hospital/SCPMG ROI Unit; So. California Permanente Medical Group – Billing; Kaiser Foundation Hospital/SCPMG - Radiology ROI Unit; and Kaiser Foundation Health Plan Inc. c/o California Service Center ROI Team is DENIED in its entirety.

Defendant’s request for sanctions is DENIED. However, the court admonishes that in order to avoid the imposition of sanctions for motions that have not yet been resolved, Plaintiff’s counsel should engage in a more genuine and robust meet and confer effort prior to the hearing on any pending discovery motions.

Moving Party is ordered to provide notice of this order and file proof of service of such.

DATED: September 29, 2020 ___________________________

Elaine Lu

Judge of the Superior Court


[1] Erroneously sued as LAC USC Medical Center

[2] On June 22, 2018, the court granted Defendant Brown’s motion for judgment on the pleadings as to the tenth cause of action. (Minute Order 6/22/18.)

[3] “Plaintiff agrees she was treated by Dr. Yang in connection with injuries she attributes to this lawsuit, and she does not object to Defendants' discovery of all records created by Dr. Yang in connection with his treatment of her.” (Reply p.1:7-10.)

[4] To the extent that Plaintiff has any remaining concerns about the privacy of her medical information, Plaintiff may seek a protective order covering the medical records to be produced, either by way of stipulation or noticed motion.

Case Number: BC677643    Hearing Date: June 26, 2020    Dept: 26

IN ORDER TO IMPLEMENT PHYSICAL DISTANCING AND UNTIL FURTHER NOTICE, THE COURT STRONGLY ENCOURAGES ALL COUNSEL AND ALL PARTIES TO APPEAR REMOTELY FOR NON-TRIAL AND NON-EVIDENTIARY MATTERS, INCLUDING THIS MOTION.

Superior Court of California

County of Los Angeles

Department 26

jhoana almache,

Plaintiff,

v.

LAC USC Medical Center; RICHARD BROWN; and DOES 1-5

Defendants.

Case No.: BC677643

Hearing Date: June 26, 2020

[TENTATIVE] order RE:

Plaintiff’s MOTION FOR Protective order

Background

This is an employment discrimination action brought by Jhoana Almache (“Plaintiff”), a Registered Nurse, against her employer, County of Los Angeles[1] (“Defendant”) as well as her Nurse Manager, Richard Brown and Does 1 through 5. On September 29, 2017, Plaintiff filed the instant action against defendants alleging: (1) Disability Discrimination; (2) Failure Accommodate; (3) Failure to Engage in an Interactive Process; (4) Unlawful Retaliation; (5) Harassment; (6) Failure to Prevent Harassment, Discrimination and/or Retaliation; (7) Violation of Health & Safety Code § 1278.5; (8) Violation of Labor Code § 1102.5; (9) Wrongful Adverse Employment Actions in Violation of Public Policy; and (10) Intentional Infliction of Emotional Distress.[2]

On November 26, 2019, Plaintiff filed the instant motion for a protective order. On April 9, 2020, Defendant filed its opposition. On April 15, 2020, Plaintiff filed her reply. Due to the COVID-19 pandemic, the hearing for this motion was continued from April 22, 2020 to June 26, 2020. On April 24, 2020, Plaintiff gave notice of the continued (June 26, 2020) hearing date.

Legal Standard

Under Code of Civil Procedure section 2030.090, “[w]hen interrogatories have been propounded, the responding party, and any other party or affected natural person or organization may promptly move for a protective order.” (CCP § 2030.090(a).) A motion for a protective order must be brought within the time to respond to the propounded interrogatories. (CCP § 2030.260(a).) Otherwise any objection to propounded interrogatories are waived. (CCP§ 2030.290(a).)

Upon the showing of “good cause” the Court may make “any order that justice requires to protect any party or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (CCP § 2030.090(b).) “The concept of good cause calls for a factual exposition of a reasonable ground for the sought order.” (Goodman v. Citizens Life & Cas. Ins. Co. (1967) 253 Cal.App.2d 807, 819.)

Generally, “the burden is on the party seeking the protective order to show good cause for whatever order is sought.” (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) However, when “the responding party seeks a protective order on the ground that the number of specially prepared interrogatories is unwarranted, the propounding party shall have the burden of justifying the number of these interrogatories.” (CCP § 2030.040(b).)

Discussion

Timeliness

Here, Defendant County of Los Angeles propounded the interrogatories at issue, Defendant’s Special Interrogatories Set Three to Plaintiff Jhoana Almache, on October 7, 2019 by mail. (Gleason Decl. ¶ 3, Ex. J.) Plaintiff received an extension until November 26, 2019 to respond to the interrogatories at issue. (Gleason Decl. ¶ 6.) Accordingly, this motion brought on November 26, 2019, is timely.

Meet and Confer

Under Code of Civil Procedure section 2030.090, a motion for a protective order “shall be accompanied by a meet and confer declaration under Section 2016.040. (CCP § 2030.090(a).) “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (CCP § 2016.040.)

Plaintiff has fulfilled this requirement. (Gleason Decl. ¶¶ 2-3, Ex. A-B.)

Protective Order

Plaintiff seeks a protective order allowing Plaintiff to not respond to Defendant Los Angeles County's Special Interrogatories, Set three and preventing Defendant from propounding any further interrogatories in this matter. Plaintiff seeks this protective order on the grounds that the number of special interrogatories is unwarranted.

Plaintiff argues that the declaration pursuant to Code of Civil Procedure section 2030.040 for the Third Set of Special Interrogatories is inadequate as it fails to explain why the facts are so complex that 137 special interrogatories are necessary. Additionally, Plaintiff asserts that the request interrogatories are needlessly cumulative.

Code of Civil Procedure section 2030.030(a)(1) provides that “[a] party may propound to another party . . . [t]hirty-five specially prepared interrogatories that are relevant to the subject matter of the pending action.” Under Code of Civil Procedure section 2030.040, “any party who attaches a supporting declaration . . . may propound a greater number of specially prepared interrogatories to another party if this greater number is warranted because of . . . [t]he complexity or the quantity of the existing and potential issues in the particular case[,] [t]he financial burden on a party entailed in conducting the discovery by oral deposition[,] [or] [t]he expedience of using this method of discovery to provide to the responding party the opportunity to conduct an inquiry, investigation, or search of files or records to supply the information sought.” (CCP § 2030.040(a)(1-3).)

Here, Defendant has propounded, including the interrogatories at issue, a total of 137 special interrogatories. (Gleason Decl. ¶ 9.) Accordingly, as noted above, the burden is on Defendant to justify this number of special interrogatories.

In a declaration submitted pursuant to Code of Civil Procedure section 2030.040 for the Third Set of Special Interrogatories, Defendant states that the number of special interrogatories is warranted “because of the complexity of the case and the potential issues in this case stemming from the complicated discrimination, retaliation, and harassment allegations presented by plaintiff in her Complaint. Defendant is entitled to know Plaintiff's allegations against Defendant and the facts, witnesses, and documents that support those allegations. These interrogatories were specially prepared to address the numerous contentions contained in Plaintiff's First Amended Complaint.” (Gleason Decl. Ex. J at p.8:16-20.) Additionally, in its opposition[3], Defendant contends that these interrogatories seek “information regarding all claims and damages, including current damages and their calculations, that Plaintiff presently expects to assert at trial.” (Gregorio Decl. ¶ 4.)

Here, Defendant’s declaration adequately states the reason why further interrogatories are necessary, specifically the number of potential issues and the complexity of the case. The Complaint alleges ten causes of action based on alleged conduct that occurred over a period approximately one year. (See Complaint ¶¶ 12-56.) Even Plaintiff has had to conduct extensive discovery for this case, including fifteen depositions. (Gregorio Decl. ¶ 5.) Based on these facts, the case appears to reasonably warrant discovery of additional information. Moreover, Plaintiff has not shown or claimed any undue burden in responding to the interrogatories at issue. Further, the interrogatories at issue are not, as Plaintiff suggests, identical to previously propounded interrogatories. Nor do the interrogatories at issue request identical information as prior interrogatories. Accordingly, Defendant has met its burden in showing the need for the special interrogatories at issue.

CONCLUSION AND ORDER

Based on the foregoing, Plaintiff’s motion for a protective order is DENIED. Plaintiff Jhoana Almache is to respond to Defendant’s Special Interrogatories Set Three within 15 days.

The court hereby orders the parties to contact the Mandatory Settlement Conference Coordinator at the Spring Street Courthouse to confirm that the currently scheduled MSC will be going forward on July 7, 2020 at 8:45 am.  All parties are further ordered to comply with all procedures set by the MSC court. If the parties learn that the July 7 MSC has been taken off calendar by the MSC Coordinator for any reason, the parties are ordered to contact this court (Department 26) within 3 days so that this court can arrange for an MSC through alternative channels.

Moving Party is ordered to provide notice of this order and file proof of service of such.

DATED: June 26, 2020 ___________________________

Elaine Lu

Judge of the Superior Court

[1] Erroneously sued as LAC USC Medical Center

[2] On June 22, 2018, the court granted Defendant Brown’s motion for judgment on the pleadings as to the tenth cause of action. (Minute Order 6/22/18.)

[3] Defendant also contends that these additional interrogatories are necessary because Plaintiff failed to adequately answer the first set of special interrogatories. However, if this were the case, Defendant should have filed a proper motion to compel further responses. The insufficiency of Plaintiff’s prior responses does not justify propounding additional discovery.

____________________________________________________________________

IN ORDER TO IMPLEMENT PHYSICAL DISTANCING AND UNTIL FURTHER NOTICE, THE COURT STRONGLY ENCOURAGES ALL COUNSEL AND ALL PARTIES TO APPEAR REMOTELY FOR NON-TRIAL AND NON-EVIDENTIARY MATTERS, INCLUDING THIS MOTION.

Superior Court of California

County of Los Angeles

Department 26

jhoana almache,

Plaintiff,

v.

LAC USC Medical Center; RICHARD BROWN; and DOES 1-5

Defendants.

Case No.: BC677643

Hearing Date: June 26, 2020

[TENTATIVE] order RE:

Defendant’s MOTION TO COMPEL COMPLIANCE WITH DEPOSITION SUBPOENA

Background

Plaintiff Jhoana Almache (“Plaintiff”), a Registered Nurse, initiated this employment discrimination, harassment, and retaliation action against her employer, County of Los Angeles[1] (‘County’) as well as her Nurse Manager, Richard Brown (collectively “Defendants”). On September 29, 2017, Plaintiff filed the instant action against Defendants alleging: (1) Disability Discrimination; (2) Failure to Accommodate; (3) Failure to Engage in an Interactive Process; (4) Unlawful Retaliation; (5) Harassment; (6) Failure to Prevent Harassment, Discrimination and/or Retaliation; (7) Violation of Health & Safety Code § 1278.5; (8) Violation of Labor Code § 1102.5; (9) Wrongful Adverse Employment Actions in Violation of Public Policy; and (10) Intentional Infliction of Emotional Distress.[2]

On November 14, 2019, Defendant County filed the instant motion to compel non-party witness, Amir Friedman, M.D. (‘Dr. Friedman’), to comply with Defendant County's deposition subpoena for personal appearance. No opposition has been filed. On April 24, 2020, Plaintiff gave notice of the continued (June 26, 2020) hearing date.

Legal Standard

Code of Civil Procedure section 1987.1 provides that “[i]f a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by [a party or a witness] . . . 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.”

Discussion

Here, it is clear that Dr. Friedman was served with the deposition subpoena and failed to appear. (Halloran Decl. ¶¶ 5-6, Ex. A-B.) However, Defendant’s motion to compel non-party Dr. Friedman’s compliance with the deposition subpoena must be denied for failure to comply with California Rules of Court, Rule 3.1346. Rule 3.1346 requires that “[a] written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.” Based upon Defendant’s proof of service, non-party Dr. Friedman has not been served with this motion, let alone served by personal service. Therefore, the motion must be denied on this ground.

Conclusion and Order

Based on the foregoing, Defendant’s motion to enforce the subpoenas issued on Dr. Friedman is denied without prejudice. Defendant may bring another motion to enforce subpoenas but must first correct the service defects noted above in doing so.

The court hereby orders the parties to contact the Mandatory Settlement Conference Coordinator at the Spring Street Courthouse to confirm that the currently scheduled MSC will be going forward on July 7, 2020 at 8:45 am.  All parties are further ordered to comply with all procedures set by the MSC court. If the parties learn that the July 7 MSC has been taken off calendar by the MSC Coordinator for any reason, the parties are ordered to contact this court (Department 26) within 3 days so that this court can arrange for an MSC through alternative channels.

Moving Party is ordered to provide notice of this order and file proof of service of such.

DATED: June 26, 2020 ___________________________

Elaine Lu

Judge of the Superior Court

[1] Erroneously sued as LAC USC Medical Center

[2] On June 22, 2018, the court granted Defendant Brown’s motion for judgment on the pleadings as to the tenth cause of action. (Minute Order 6/22/18.)

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