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TENTATIVE RULINGS – FAMILY LAW Dept. 22 LAW & MOTION CALENDAR
HON. RAIMA BALLINGER
IN COURTROOM 22
FRIDAY, December 12, 2014 @ 9:30 A.M.
(Civil & Family Courthouse, 3055 Cleveland Avenue)
The following Tentative Rulings will become the ruling of the Court unless a party desires to be heard. If you desire to appear and present oral argument as to any motion, it will be necessary for you to contact the Judicial Assistant by telephone at (707) 521-6723 by 4:00 p.m. Thursday, December 11, 2014. Any party requesting an appearance must notify all other opposing parties of their intent to appear.
1. SFL 58777, Garcia Dissolution
This is on calendar for Petitioner’s motion to quash three subpoenas issued by the Respondent. The three subpoenas seek discovery from: (1) Kaiser for the Petitioner’s medical records dating back to 2010; (2) Facebook for the Petitioner’s online postings; and (3) Premier Kitchen & Bath for the Petitioner’s employment records from that business. The Petitioner contends that none of the requested records are relevant to the instant custody dispute, and are simply an impermissible fishing expedition into the Petitioner’s private affairs. Further, the Petitioner contends that her medical records are subject to her right to privacy and need not be disclosed.
The Respondent opposes, arguing that the Petitioner has raised the issue of her mental health, opening the door to discovery. Further the Respondent argues that the Petitioner’s given reasons for her sudden abandonment of the minor child warrant discovery, i.e. her employment records. In particular the Respondent contends that he needs discovery into why her employment ended (voluntary/involuntary)-as the Petitioner claims that she left California because the cost of living was too high. Respondent would like to explore, through discovery, that assertion.
Information is discoverable if it is relevant and not privileged. CCP §2017.010. The right to privacy is one of the “inalienable rights” protected by Article, 1, section 1 of the California Constitution. Personal financial information “comes within the zone of privacy” protected by that provision. (Harris v. Superior Court (1992) 3 Cal. App. 4th 661, 664 (citation omitted).)
A “consumer” whose “personal records” have been subpoenaed may file a motion to quash a subpoena. (CCP §§ 1985.3(g), 1985.6(f), 1987.1.) The court, “upon motion reasonably made… or upon the court’s own motion after giving counsel notice and opportunity to be heard, 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).) Note however, that: “Where it is possible to do so, ‘… the courts should impose partial limitations rather than outright denial of discovery.” (Greyhound Corp. v. Superior Court (1961) 56 Cal.2nd 355, 382 at 383.)
Both the physician-patient and the psychotherapist-patient privileges are waived by laws as to “communications” about a patioent’s medical conditions tendered in issue by the lawsuit. (Ev.C. §§ 996, 1016; see also Hallendorf v. super.Ct (Pflibsen) (1978) 85 Cal.App.3d 553, 557; Inabnit v. Berkson 1988) 199 Cal.App.3d 1320, 1236.) The exception is limited, however, to condition’s placed in controversy by the lawsuit. ( Britt vs. Super. Ct. (San Diego Unified Port Dist.) (1978) 20 Cal.3d 844; Palay v. Super. Ct. (County of Los Angeles) 1993) 18 Cal.App.4th 191, 928.)
The court must balance the interests, weighing the privacy right at issue against the public interest in obtaining just results. ( Valley Bank of Nevada v. Supt. Ct. (1975) 15 Cal.3d 652, 657.) The court should consider: (1) the purpose of the information sought; (2) the effect that disclosure will have on the parties and the trial; (3) the nature of the objections to disclosure; (4) whether the court may make an alternative order granting partial disclosure, disclosure in another form, or disclosure only if the party seeking the information undertakes certain appropriate burdens. ( Valley of Nevada, supra, 15 Cal.3d 658.)
The subpoena to Kaiser for the medical records of the Petitioner would seem discoverable. The Petitioner has put her medical condition at issue, and has averred that she suffered anxiety and depression−which she claims has subsided. Additionally, the declarations of the Petitioner’s parents certainly put the Petitioner’s mental health into question with respect to what is in the best interest of the minor child. The Petitioner cannot have it both ways−she cannot raise the issue of her mental health, and then claim her medical records are not discoverable.
The information sought in the subpoena to Premier Bath & Kitchen is not privileged, and is certainly relevant to the issue of why the Petitioner left California−she claims she could not afford to live here. This information bears directly on that assertion.
Lastly, the subpoena to Facebook does not intrude on the privacy concerns of the Petitioner as it seeks information that she posted to a website that was available for the public to access (or at the very least her friends and family). The Respondent has the right to explore the Petitioner’s lifestyle, and whether it is conducive to the best interest of the minor child. The snippet provided by the Respondent indicates that the Petitioner may have an unhealthy relationship to alcohol that would bear on whether the minor child should be allowed to travel to Texas to visit unaccompanied.
Accordingly, the motions to quash are denied, with the proviso that the discovery is for the parties’, court’s, and attorney’s eyes only, and that if the information is to be admitted into evidence that is be done under seal and in a closed hearing.
2. SFL 60293, Diffenderfer Dissolution
This is on calendar for the Petitioner’s motion to set aside the judgment she obtained via default. On July 17, 2014, the court issued a judgment by default which dissolved the subject marriage and waived both parties’ rights to spousal support. After this judgment was entered and served on the Respondent, the Petitioner realized that she had a previous support order from Orange County that entitled her to $500 per month until the death of either party (issued in 2011). Respondent has refused to pay support, contending that the July, 2014 judgment superseded the 2011 Orange County order. The default judgment against the Defendant should be set aside because of mistake and excusable neglect, under which the Court has discretion to grant relief. (CCP § 473.) It is questionable if the court even had jurisdiction to enter the order given that Orange County had already made a support order. Accordingly, the motion is granted.
3. SFL-64896, Hernandez/Garcia
4. SFL-64983, Hernandez/Sandoval
Case continued to January 23, 2015 at 9:30 a.m., in department 22. Any response must comply with CCP section 1005(b).
5. SFL-65587, McLaren Dissolution
No proof of service in the Court’s file. The Request for Order is continued to January 23, 2015 at 9:30 a.m., in department 22, in order to allow service to take place.
6. SFL-66591 Presten Dissolution