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1 John W. Ranucci, Esq., Bar No. 184801
3/13/2024
2 FORD, WALKER, HAGGERTY & BEHAR
One World Trade Center
3 Twenty-Seventh Floor
Long Beach, California 90831-2700
4 Tel: (562) 983-2500; Fax: (562) 983-2555
5
FORD, WALKER, HAGGERTY & BEHAR
6 16450 Los Gatos Blvd.
Suite 110
7 Los Gatos, CA 95032
Tel: (408) 660-3102; Fax: (408) 660-3105
8
9 Attorneys for Defendant,
TIMOTHY LOGUE
10
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
11
12 IN AND FOR THE COUNTY OF SAN MATEO
13
14 REBECCA SOLER; and GEORGE SOLER, ) Case No. 21-CIV-00289
15 )
Plaintiffs ) Hon. Nicole S. Healy
16 ) Dept. 28
vs. )
17 ) REPLY IN SUPPORT OF DEFENDANT
18 LIVE NATION ENTERTAINMENT, INC.; ) TIMOTHY LOGUE’S MOTION FOR AN
TIMOTHY LOGUE; and DOES 1 through 20, ) ORDER SEALING MOTION FOR
19 Inclusive, ) SUMMARY JUDGMENT AND
) DOCUMENTS IN SUPPORT
20 Defendants. )
) Date: March 20, 2024
21
) Time: 2:00 p.m.
22 ) Dept.: 28
)
23 ) Action Filed: January 21, 2021
) Trial: May 30, 2024
24
25
26 Defendant TIMOTHY LOGUE submits the following reply in support of his motion for an order
27 sealing the Memorandum of Points and Authorities in Support of Defendant Timothy Logue’s motion for
28 summary judgment, and certain documents in support thereof.
1
REPLY IN SUPPORT OF DEFENDANT TIMOTHY LOGUE’S MOTION FOR AN ORDER
SEALING MOTION FOR SUMMARY JUDGMENT AND DOCUMENTS IN SUPPORT
1
I. DEFENDANT’S PRIVACY INTERESTS JUSTIFY SEALING THE RECORD
2
Plaintiffs urge that Defendant’s private records should be publicly accessible as part of the court
3
record. However, Plaintiff cites no authority that would overcome Defendant’s right to privacy protected
4
by the California Constitution (Cal. Const. Art. 1 § 1), Health Insurance Portability and Accountability
5
Act of 1996 (HIPAA), Standards for Privacy of Individually Identifiable Health Information (45 CFR
6
Parts 160 and 164), Confidentiality of Medical Records Act (Civil Code § 56 et seq.), Patient Access to
7
Health Records Act (Health & Safety Code § 123110 et seq.), Insurance Information and Privacy
8
Protection Act (Insurance Code § 791 et seq.), and Information Practices Act (Civil Code § 1798 et seq.).
9
When a plaintiff makes a claim for personal injuries, the right of privacy regarding “an issue
10
concerning the condition of the patient” is waived “if such issue has been tendered by the patient” by filing
11
suit for related injuries. (Evidence Code, § 996 [the “patient-litigant exception”].) Defendant is not making
12
a claim for personal injuries herein, and did not bring this action.
13
The records Defendant seeks to seal are not solely “medical records,” but mental health and
14
substance abuse records which are, and should be, afforded even greater protection. Most facilities do not
15
(and cannot) release these records via subpoena absent express authorization.
16
California has a specific statute governing the records of patients in mental facilities (Calif. Welf.
17
and Inst. Code § 5328), and also specifically prohibits the release of information by psychotherapists
18
specifically relating to “the patient's participation in outpatient treatment.” Federal law provides that
19
“psychotherapy notes” may only be disclosed with authorization (45 C.F.R. § 164.508(a)(2).)
20
Under federal law, “Records of the identity, diagnosis, prognosis, or treatment of any patient which
21
are maintained in connection with the performance of any program or activity relating to substance abuse
22
education, prevention, training, treatment, rehabilitation, or research, which is conducted, regulated, or
23
directly or indirectly assisted by any department or agency of the United States shall, * * * be confidential
24
and be disclosed only for the purposes and under the circumstances expressly authorized under subsection
25
(b) of this section (42 U.S.C. § 290dd-2(a)).” Cal. Health & Safety Code, § 11845.5 essentially mirrors
26
federal law requiring consent to release substance abuse treatment records.
27
28
2
REPLY IN SUPPORT OF DEFENDANT TIMOTHY LOGUE’S MOTION FOR AN ORDER
SEALING MOTION FOR SUMMARY JUDGMENT AND DOCUMENTS IN SUPPORT
1
Defendant should not have to waive his right to privacy in order to assert the medical emergency
2
defense to defend himself in this action.
3
II. THE RECORDS TO BE SEALED ARE NARROWLY TAILORED
4
The entirety of Defendant Logue’s medical records reviewed by defense expert Dr. Keselman in
5
forming her opinion, as well as the depositions of two of Defendant Logue’s treaters, Olena Hays, PAC
6
and Richard Chun, M.D., have been lodged to support the motion for summary judgment, and should be
7
sealed in their entirety, based upon Defendant Logue’s right to privacy.
8
The Memorandum of Points and Authorities, Separate Statement of Undisputed Material Facts,
9
and Declarations of Defendant Logue and Dr. Inna Keselman deal so extensively with facts and discussion
10
of the sudden medical emergency defense as it relates to Defendant Logue and the instant case, that it is
11
reasonable to seal the entirety of these documents as well to protect Defendant Logue’s right to privacy.
12
III. THE STIPULATED PROTECTIVE ORDER IS APPLICABLE
13
Plaintiffs urge that the “plain reading of the protective order shows that it does not apply to the
14
documents sought to be sealed.” (Opposition, p. 4:2-3.) The Stipulation and Protective Order allows any
15
party to designate confidential “any information regarding any party not otherwise available to the public.”
16
(Exhibit A to Motion, Stipulation and Protective Order, p. 2:3.) Defendant Logue’s medical records
17
certainly qualify as “information regarding any party not otherwise available to the public.”
18
Further, the Stipulation and Protective Order sets forth the procedure for having records submitted
19
to the Court sealed, which Defendant is complying with by filing the instant motion.
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IV. CONCLUSION
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Based on the foregoing reasons, the documents identified in the Notice of Motion and submitted
22
in support of Defendant’s Motion for Summary Judgment meet the criteria established by California Rule
23
of Court 2.550(d)(1) – (5), and justify good cause to seal. Defendant’s request to seal as to the following
24
documents should be granted:
25
• Memorandum of Points and Authorities in Support of Defendant Timothy Logue’s Motion
26
for Summary Judgment
27
• Separate Statement of Undisputed Material Facts In Support of Defendant Timothy
28
3
REPLY IN SUPPORT OF DEFENDANT TIMOTHY LOGUE’S MOTION FOR AN ORDER
SEALING MOTION FOR SUMMARY JUDGMENT AND DOCUMENTS IN SUPPORT
1
Logue’s Motion For Summary Judgment
2
• Declaration of Timothy Logue
3
• Declaration of Dr. Inna Keselman, M.D., Ph.D.
4
• Exhibit A to Notice of Lodging - American Medical Response records
5
• Exhibit B to Notice of Lodging – Stanford Health Care records
6
• Exhibit C to Notice of Lodging – Sacramento Metropolitan Fire District records
7
• Exhibit D to Notice of Lodging – Sutter Health records
8
9 • Exhibit E to Notice of Lodging – Wellspace Health records
10 • Exhibit F to Notice of Lodging – Deposition transcript of Olena Hays, PAC
11 • Exhibit G to Notice of Lodging - Deposition transcript of Richard Chun, M.D.
12
13 Dated: March 13, 2024
FORD, WALKER, HAGGERTY & BEHAR
14
15
16 BY:________________________________
JOHN W. RANUCCI
17 Attorneys for Defendant,
TIMOTHY LOGUE
18
19
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26
27
28
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REPLY IN SUPPORT OF DEFENDANT TIMOTHY LOGUE’S MOTION FOR AN ORDER
SEALING MOTION FOR SUMMARY JUDGMENT AND DOCUMENTS IN SUPPORT
1 PROOF OF SERVICE
2 SOLER v. LIVE NATION, LOGUE
61123-019
3 STATE OF CALIFORNIA )
) ss.
4 COUNTY OF SAN DIEGO )
5 I am employed in the aforesaid county; I am over the age of eighteen years and not a party to the
within entitled action; my business address is: 501 West Broadway, Suite 2060, San Diego, CA 92101.
6
7 On March 13, 2024, I served the within: REPLY IN SUPPORT OF DEFENDANT
8 TIMOTHY LOGUE’S MOTION FOR AN ORDER SEALING MOTION FOR SUMMARY
JUDGMENT AND DOCUMENTS IN SUPPORT on the interested parties in said action,
9
SEE ATTACHED SERVICE LIST
10
XX (ONLY BY ELECTRONIC TRANSMISSION) Only by e-mailing the document(s) to the persons at
11 the e-mail address(es). Pursuant to California Code of Civil Procedure §1010.6, this office will use
electronic mail for service purposes. The email was transmitted by Vivian Krotzer from email
12 address: vkrotzer@fwhb.com.
13 Executed on March 13, 2024, at San Diego, California.
14 I declare under penalty of perjury under the laws of the State of California that the above is true
and correct.
15
16
17
___________________________________
18 Vivian Krotzer
19
20
21
22
23
24
25
26
27
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5
REPLY IN SUPPORT OF DEFENDANT TIMOTHY LOGUE’S MOTION FOR AN ORDER
SEALING MOTION FOR SUMMARY JUDGMENT AND DOCUMENTS IN SUPPORT
1 MAILING SERVICE LIST
2 SOLER v. LIVE NATION, LOGUE
61123-019
3
4 Attorney for Plaintiffs, Rebecca Soler and George Soler:
5
Robert J. Waldsmith, Esq.
6 Jeffrey R. Smith, Esq.
ABRAMSON SMITH WALDSMITH, LLP
7 19 Tehama Street, Ste. A
San Francisco, CA 94105
8
rjw@aswllp.com
9 jrs@aswllp.com
maria@aswllp.com
10 staff@aswllp.com
11
Tel: 415-421-7995
12 Fax: 415-421-0912
13
Attorney for Co-Defendant, Live Nation Entertainment, Inc.:
14
15 Yvonne V. Jorgensen, Esq.
VAN DE POEL, LEVY, THOMAS ARNEAL LLP
16 1600 South Main Plaza, Ste. 325
Walnut Creek, CA 94596
17 yjorgensen@vanlevylaw.com
18 ldesilva@vanlevylaw.com
dssaavedra@vanlevylaw.com
19 kriordan@vanlevylaw.com
dwilson@vanlevylaw.com
20
21
Tel: 925-934-6102
22 Fax: 925-934-6060
23
24
25
26
27
28
6
REPLY IN SUPPORT OF DEFENDANT TIMOTHY LOGUE’S MOTION FOR AN ORDER
SEALING MOTION FOR SUMMARY JUDGMENT AND DOCUMENTS IN SUPPORT
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1 John W. Ranucci, Esq., Bar No. 184801 3/13/2024 2 FORD, WALKER, HAGGERTY & BEHAR One World Trade Center 3 Twenty-Seventh Floor Long Beach, California 90831-2700 4 Tel: (562) 983-2500; Fax: (562) 983-2555 5 FORD, WALKER, HAGGERTY & BEHAR 6 16450 Los Gatos Blvd. Suite 110 7 Los Gatos, CA 95032 Tel: (408) 660-3102; Fax: (408) 660-3105 8 9 Attorneys for Defendant, TIMOTHY LOGUE 10 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 12 IN AND FOR THE COUNTY OF SAN MATEO 13 14 REBECCA SOLER; and GEORGE SOLER, ) Case No. 21-CIV-00289 15 ) Plaintiffs ) Hon. Nicole S. Healy 16 ) Dept. 28 vs. ) 17 ) REPLY IN SUPPORT OF DEFENDANT 18 LIVE NATION ENTERTAINMENT, INC.; ) TIMOTHY LOGUE’S MOTION FOR AN TIMOTHY LOGUE; and DOES 1 through 20, ) ORDER SEALING MOTION FOR 19 Inclusive, ) SUMMARY JUDGMENT AND ) DOCUMENTS IN SUPPORT 20 Defendants. ) ) Date: March 20, 2024 21 ) Time: 2:00 p.m. 22 ) Dept.: 28 ) 23 ) Action Filed: January 21, 2021 ) Trial: May 30, 2024 24 25 26 Defendant TIMOTHY LOGUE submits the following reply in support of his motion for an order 27 sealing the Memorandum of Points and Authorities in Support of Defendant Timothy Logue’s motion for 28 summary judgment, and certain documents in support thereof. 1 REPLY IN SUPPORT OF DEFENDANT TIMOTHY LOGUE’S MOTION FOR AN ORDER SEALING MOTION FOR SUMMARY JUDGMENT AND DOCUMENTS IN SUPPORT 1 I. DEFENDANT’S PRIVACY INTERESTS JUSTIFY SEALING THE RECORD 2 Plaintiffs urge that Defendant’s private records should be publicly accessible as part of the court 3 record. However, Plaintiff cites no authority that would overcome Defendant’s right to privacy protected 4 by the California Constitution (Cal. Const. Art. 1 § 1), Health Insurance Portability and Accountability 5 Act of 1996 (HIPAA), Standards for Privacy of Individually Identifiable Health Information (45 CFR 6 Parts 160 and 164), Confidentiality of Medical Records Act (Civil Code § 56 et seq.), Patient Access to 7 Health Records Act (Health & Safety Code § 123110 et seq.), Insurance Information and Privacy 8 Protection Act (Insurance Code § 791 et seq.), and Information Practices Act (Civil Code § 1798 et seq.). 9 When a plaintiff makes a claim for personal injuries, the right of privacy regarding “an issue 10 concerning the condition of the patient” is waived “if such issue has been tendered by the patient” by filing 11 suit for related injuries. (Evidence Code, § 996 [the “patient-litigant exception”].) Defendant is not making 12 a claim for personal injuries herein, and did not bring this action. 13 The records Defendant seeks to seal are not solely “medical records,” but mental health and 14 substance abuse records which are, and should be, afforded even greater protection. Most facilities do not 15 (and cannot) release these records via subpoena absent express authorization. 16 California has a specific statute governing the records of patients in mental facilities (Calif. Welf. 17 and Inst. Code § 5328), and also specifically prohibits the release of information by psychotherapists 18 specifically relating to “the patient's participation in outpatient treatment.” Federal law provides that 19 “psychotherapy notes” may only be disclosed with authorization (45 C.F.R. § 164.508(a)(2).) 20 Under federal law, “Records of the identity, diagnosis, prognosis, or treatment of any patient which 21 are maintained in connection with the performance of any program or activity relating to substance abuse 22 education, prevention, training, treatment, rehabilitation, or research, which is conducted, regulated, or 23 directly or indirectly assisted by any department or agency of the United States shall, * * * be confidential 24 and be disclosed only for the purposes and under the circumstances expressly authorized under subsection 25 (b) of this section (42 U.S.C. § 290dd-2(a)).” Cal. Health & Safety Code, § 11845.5 essentially mirrors 26 federal law requiring consent to release substance abuse treatment records. 27 28 2 REPLY IN SUPPORT OF DEFENDANT TIMOTHY LOGUE’S MOTION FOR AN ORDER SEALING MOTION FOR SUMMARY JUDGMENT AND DOCUMENTS IN SUPPORT 1 Defendant should not have to waive his right to privacy in order to assert the medical emergency 2 defense to defend himself in this action. 3 II. THE RECORDS TO BE SEALED ARE NARROWLY TAILORED 4 The entirety of Defendant Logue’s medical records reviewed by defense expert Dr. Keselman in 5 forming her opinion, as well as the depositions of two of Defendant Logue’s treaters, Olena Hays, PAC 6 and Richard Chun, M.D., have been lodged to support the motion for summary judgment, and should be 7 sealed in their entirety, based upon Defendant Logue’s right to privacy. 8 The Memorandum of Points and Authorities, Separate Statement of Undisputed Material Facts, 9 and Declarations of Defendant Logue and Dr. Inna Keselman deal so extensively with facts and discussion 10 of the sudden medical emergency defense as it relates to Defendant Logue and the instant case, that it is 11 reasonable to seal the entirety of these documents as well to protect Defendant Logue’s right to privacy. 12 III. THE STIPULATED PROTECTIVE ORDER IS APPLICABLE 13 Plaintiffs urge that the “plain reading of the protective order shows that it does not apply to the 14 documents sought to be sealed.” (Opposition, p. 4:2-3.) The Stipulation and Protective Order allows any 15 party to designate confidential “any information regarding any party not otherwise available to the public.” 16 (Exhibit A to Motion, Stipulation and Protective Order, p. 2:3.) Defendant Logue’s medical records 17 certainly qualify as “information regarding any party not otherwise available to the public.” 18 Further, the Stipulation and Protective Order sets forth the procedure for having records submitted 19 to the Court sealed, which Defendant is complying with by filing the instant motion. 20 IV. CONCLUSION 21 Based on the foregoing reasons, the documents identified in the Notice of Motion and submitted 22 in support of Defendant’s Motion for Summary Judgment meet the criteria established by California Rule 23 of Court 2.550(d)(1) – (5), and justify good cause to seal. Defendant’s request to seal as to the following 24 documents should be granted: 25 • Memorandum of Points and Authorities in Support of Defendant Timothy Logue’s Motion 26 for Summary Judgment 27 • Separate Statement of Undisputed Material Facts In Support of Defendant Timothy 28 3 REPLY IN SUPPORT OF DEFENDANT TIMOTHY LOGUE’S MOTION FOR AN ORDER SEALING MOTION FOR SUMMARY JUDGMENT AND DOCUMENTS IN SUPPORT 1 Logue’s Motion For Summary Judgment 2 • Declaration of Timothy Logue 3 • Declaration of Dr. Inna Keselman, M.D., Ph.D. 4 • Exhibit A to Notice of Lodging - American Medical Response records 5 • Exhibit B to Notice of Lodging – Stanford Health Care records 6 • Exhibit C to Notice of Lodging – Sacramento Metropolitan Fire District records 7 • Exhibit D to Notice of Lodging – Sutter Health records 8 9 • Exhibit E to Notice of Lodging – Wellspace Health records 10 • Exhibit F to Notice of Lodging – Deposition transcript of Olena Hays, PAC 11 • Exhibit G to Notice of Lodging - Deposition transcript of Richard Chun, M.D. 12 13 Dated: March 13, 2024 FORD, WALKER, HAGGERTY & BEHAR 14 15 16 BY:________________________________ JOHN W. RANUCCI 17 Attorneys for Defendant, TIMOTHY LOGUE 18 19 20 21 22 23 24 25 26 27 28 4 REPLY IN SUPPORT OF DEFENDANT TIMOTHY LOGUE’S MOTION FOR AN ORDER SEALING MOTION FOR SUMMARY JUDGMENT AND DOCUMENTS IN SUPPORT 1 PROOF OF SERVICE 2 SOLER v. LIVE NATION, LOGUE 61123-019 3 STATE OF CALIFORNIA ) ) ss. 4 COUNTY OF SAN DIEGO ) 5 I am employed in the aforesaid county; I am over the age of eighteen years and not a party to the within entitled action; my business address is: 501 West Broadway, Suite 2060, San Diego, CA 92101. 6 7 On March 13, 2024, I served the within: REPLY IN SUPPORT OF DEFENDANT 8 TIMOTHY LOGUE’S MOTION FOR AN ORDER SEALING MOTION FOR SUMMARY JUDGMENT AND DOCUMENTS IN SUPPORT on the interested parties in said action, 9 SEE ATTACHED SERVICE LIST 10 XX (ONLY BY ELECTRONIC TRANSMISSION) Only by e-mailing the document(s) to the persons at 11 the e-mail address(es). Pursuant to California Code of Civil Procedure §1010.6, this office will use electronic mail for service purposes. The email was transmitted by Vivian Krotzer from email 12 address: vkrotzer@fwhb.com. 13 Executed on March 13, 2024, at San Diego, California. 14 I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 15 16 17 ___________________________________ 18 Vivian Krotzer 19 20 21 22 23 24 25 26 27 28 5 REPLY IN SUPPORT OF DEFENDANT TIMOTHY LOGUE’S MOTION FOR AN ORDER SEALING MOTION FOR SUMMARY JUDGMENT AND DOCUMENTS IN SUPPORT 1 MAILING SERVICE LIST 2 SOLER v. LIVE NATION, LOGUE 61123-019 3 4 Attorney for Plaintiffs, Rebecca Soler and George Soler: 5 Robert J. Waldsmith, Esq. 6 Jeffrey R. Smith, Esq. ABRAMSON SMITH WALDSMITH, LLP 7 19 Tehama Street, Ste. A San Francisco, CA 94105 8 rjw@aswllp.com 9 jrs@aswllp.com maria@aswllp.com 10 staff@aswllp.com 11 Tel: 415-421-7995 12 Fax: 415-421-0912 13 Attorney for Co-Defendant, Live Nation Entertainment, Inc.: 14 15 Yvonne V. Jorgensen, Esq. VAN DE POEL, LEVY, THOMAS ARNEAL LLP 16 1600 South Main Plaza, Ste. 325 Walnut Creek, CA 94596 17 yjorgensen@vanlevylaw.com 18 ldesilva@vanlevylaw.com dssaavedra@vanlevylaw.com 19 kriordan@vanlevylaw.com dwilson@vanlevylaw.com 20 21 Tel: 925-934-6102 22 Fax: 925-934-6060 23 24 25 26 27 28 6 REPLY IN SUPPORT OF DEFENDANT TIMOTHY LOGUE’S MOTION FOR AN ORDER SEALING MOTION FOR SUMMARY JUDGMENT AND DOCUMENTS IN SUPPORT