Preview
5/13/2020
1 JEANNE SCHERER, Acting Chief Counsel
JULIE JORDAN, Acting Deputy Chief Counsel
2 DOUGLAS L. JOHNSON, Assistant Chief Counsel
DARREN S. NAKASHIMA, Bar No. 252121
3 1120 N Street (MS 57) P.O. Box 1438
Sacramento, California 95812-1438
4 Telephone: (916) 654-2630
Facsimile: (916) 654-6128 (NO FEE PURSUANT TO GOV. CODE, § 6103)
5
Attorneys for Defendant
6 State of California Department of Transportation and
Mark Allen Lawson
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF BUTTE
10
11 CARYL LYNN WESTON, ) Case No.: 19CV00855
)
12 Plaintiff, ) DEFENDANTS STATE OF CALIFORNIA
) DEPARTMENT OF TRANSPORTATION
13 vs. ) AND MARK ALLEN LAWSON’S
) RESPONSE TO PLAINTIFF SEPARATE
14 STATE OF CALIFORNIA DEPARTMENT ) STATEMENT IN SUPPORT OF
OF TRANSPORTATION; MARK ALLEN ) OPPOSITION TO MOTION TO QUASH
15 LAWSON, an individual; and DOES 1- 50, )
) Date: May 27, 2020
16 ) Time: 9:00 a.m.
Defendants. ) Dept.:6
17 ) Judge: Hon. Stephen E. Benson
)
18 ) Complaint Filed: March 18, 2019
) Trial: August 3, 2020
19 )
)
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22 Pursuant to California Rules of Court, Rule 3.1345(a), Defendant State of California Department
23 of Transportation (Caltrans) submits its Response to plaintiff’s Separate Statements in support of its
24 Motion to Quash.
25 PLAINTIFF’S SEPARATE STATEMENT
26 A. Defendants’ All Star Subpoena
27 Defendants issued a broad subpoena dated February 19, 2020, to Plaintiff’s insurance entity as
28 follows:
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DEFENDANTS STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION AND MARK ALLEN
LAWSON’S RESPONSE TO SEPARATE STATEMENT
1 1) “All Star General Insurance Agency, Inc.” [All Star is the new name for “Stonewood
2 Insurance Services, Inc.”, another entity to whom Defendants previously issued a subpoena
3 and is currently at issue in a Motion to Quash to be heard on April 1, 2020]
4 This subpoena is directed to Plaintiff’s insurer/insurance agent and referred to as “All Star
5 Subpoena.” All subpoenas are collectively referred to as “Subpoenas.”
6 The All Star Subpoena seeks the following documents and things::
7 “RECORDS CATEGORY NUMBER 1
8 Produce all WRITINGS, as defined in California Evidence Code section
250, including but not limited to electronically stored information, which
9 show insurance coverage effective on April 2, 2018 to your alleged
10 insured Caryl Lynn Weston aka Lyndi Weston (DOB: July 9, 1959),
including but not limited to insurance policies, declaration pages,
11 certificates of insurance, correspondence, and other documents regarding
such coverage and/or potential coverage.”
12
13 “RECORDS CATEGORY NUMBER 2
14 Produce all WRITINGS, as defined in California Evidence Code section
250, including but not limited to electronically stored information, that
15 pertain to a motor vehicle collision involving your alleged insured Caryl
Lynn Weston aka Lyndi Weston (DOB: July 9, 1959), policy number
16
GSP90028333-04, for a motor vehicle collision which occurred on Apri1 2,
17 2018, in the unincorporated area of Chico, Butte County, California,
including but not limited to claims made against the policy, settlements,
18 proposed settlements, settlement offers, estimates, repair records,
photographs, reports, police reports, fire reports, explanation of benefits
19
(EOBs), medical bills, medical records, medical summaries, charts, chart
20 notes, psychological records, counseling records, prescription records,
images, photographs, x-rays, laboratory reports/results, toxicology
21 reports/results, ambulance records, claims, coverages, invoices, billings and
22 payments applied to account from any source including write-offs,
adjustments, ARI statements, write-downs, contractual allowances, written
23 history of payments made by patient, insurance companies, Medicare,
Medi-Cal, worker's compensation, write-offs and adjustments, monetary
24 disbursements, billed rates, paid rates, correspondence, and all other
25 documents and WRITINGS related to the policy that are in your possession.”
26 “RECORDS CATEGORY NUMBER 3
27 Produce all WRITINGS, as defined in California Evidence Code section
250, including but not limited to electronically stored information, that
28 pertain to your policy number GSP90028333-04, issued to your alleged
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DEFENDANTS STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION AND MARK ALLEN
LAWSON’S RESPONSE TO SEPARATE STATEMENT
1 insured Caryl Lynn Weston aka Lyndi Weston (DOB: July 9, 1959) from
April 2, 2018 through and including the date of production, including but
2 not limited to insurance policies, declaration pages, certificates of
3 insurance, correspondence, and other documents regarding such policy.”
4 It also asks the deponent to “Please redact all social security number.”
5 B. Plaintiff’s Objections and Positions
6 1. The All Star Subpoena is procedurally defective and can be quashed.
7 The all Star Subpoena does not designate the documents, tangible things, land or other property,
8 or other document to be inspected or produced, either by specifically describing each individual item or
9 by reasonably particularizing each category of item; therefore, they are also overbroad, oppressive, and
10 burdensome. CCP §2020.410; Calcor Space Facility, Inc. v. Sup. Court (1997) 53 Cal.App.4th 216,
11 222‐224 (“Calcor”). They can be quashed on this ground alone.
12 Essentially, the categories of documents described in the Subpoenas here are so broad that they
13 in effect ask for everything in each deponent-custodian’s possession relating to Plaintiff, with no limits
14 or qualifications. Such a subpoena is unduly burdensome and unenforceable. Calcor Space Facility,
15 Inc. v. Sup.Ct. at 224.
16 2. Insurance files are not discoverable, and insurance files are protected by the
17 collateral source rule and general privacy and privilege rights discussed above.
18 The All Star Subpoena seeks the entirety of Plaintiff’s insurance files. Insurance Code §791 et
19 seq. (specifically §791.13(a)) protect this information and prohibit disclosure of insurance file
20 information and contents. Mead Reins. Co. v. Sup. Court (1986) 188 Cal.App.3d 313, 322. This is
21 fundamentally improper and not allowed for the same reasons explained below (privacy, privileges,
22 work product, etc.).
23 Additionally, the entirety of Plaintiff’s insurance files/documents/information are protected by
24 the collateral source rule. Helfend v. Southern California Rapid Transit Dist. (1970) 2 Cal.3d 1; Lund v.
25 San Joaquin Valley Railroad (2003) 31 Cal.4th 1. Moreover, Evidence Code §1155 provides that,
26 “Evidence that a person was, at the time a harm was suffered by another, insured wholly or partially
27 against loss arising from liability for that harm is inadmissible to prove negligence…” Thus, the All Star
28 Subpoena is too broad and invasive.
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DEFENDANTS STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION AND MARK ALLEN
LAWSON’S RESPONSE TO SEPARATE STATEMENT
1 3. The All Star Subpoena invades constitutional and statutory privacy rights.
2 Given the broad, limitless use of the phrasing “any and all” and “all” (as quoted above), Plaintiff
3 objects that the All Star Subpoena necessarily seek information/documents (hard and electronic) that
4 would violate the right to privacy of Plaintiff and other third persons or entities, which is protected under
5 the United States Constitution, California Constitution, Article I, Section 1, Government Code §7460 et.
6 seq., Evid. Code §1060, C.C.P §§1985.3 and 1985.6, Health Insurance Portability and Accountability
7 Act of 1996 (42 U.S.C. § 1320d et seq.) (HIPAA), the Insurance Code §§791, et seq., or any other
8 constitutional, statutory, evidentiary, or common law privilege or protection, or which otherwise reflects
9 or discloses other private, confidential, proprietary or financial information of Plaintiffs and any third
10 persons or entities. Britt v. Sup. Court (1978) 20 Cal.3d 844; In re Lifschutz (1970) 2 Cal.3d 415;
11 Roberts v. Sup. Court (1973) 9 Cal.3d 330; Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40
12 Cal.4th 360; Belaire‐West Landscape, Inc. v. Sup. Court (2007) 149 Cal.App.4th 554; San Diego
13 Trolley, Inc. v. Sup. Court (2001) 87 Cal.Appl.4th 1083; Life Technologies Corp. v. Sup. Court (2011)
14 197 Cal.App.4th 640; Alch v. Sup. Court (Time Warner Entertainment Company) (2008) 165
15 Cal.App.4th 1412; Boler v. Sup. Court (Everett) (1987) 201 Cal.App.3d 467; Gordon v. Sup. Court
16 (1997) 55 Cal.App.4th 1546.
17 There is also a taxpayer privilege. Webb v. Standard Oil Co. (1957) 49 Cal.2d 509, 513‐514.
18 And, of course, social security numbers are specifically protected. CRC Rule §1.20(b)(2)(A).
19 4. Medical records are particularly intimate and personal, warranting privacy
20 protection, and a personal injury lawsuit does not waive the right to privacy.
21 To the extent the All Star Subpoena seeks medical records and information contain in the
22 insurance files, a plaintiff cannot be compelled to disclose medical records that do not relate to the
23 injuries at issue in the case, even though they may, in some sense, be relevant to the substantive issues of
24 litigation. (Britt v. Superior Court (1978) 20 Cal. 3d 844, 864). The California Constitution and the
25 California Supreme Court safeguard Plaintiff’s right to protect unrelated sensitive medical information.
26 The only aspect of Plaintiff’s medical condition that Plaintiff has placed at issue is the past and present
27 condition related to the injury sued upon. Britt v. Superior Court ((1978) 20 Cal.3d 844, 862-864
28 (“Britt”).
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DEFENDANTS STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION AND MARK ALLEN
LAWSON’S RESPONSE TO SEPARATE STATEMENT
1 The California Supreme Court made it clear in Britt that the mere filing of a personal injury
2 lawsuit does not waive a plaintiff’s constitutional privacy rights and that a plaintiff is “entitled to retain
3 the confidentiality of all unrelated medical treatment [the plaintiff] may have undergone in the past.”
4 Id.; see also Vinson v. Superior Court (1987) 43 Cal.3d 833, 842; Davis v. Superior (1992) 7
5 Cal.App.4th 1008.
6 The case law makes it clear that filing a personal injury lawsuit does not open up a plaintiff's
7 lifetime medical history and that an implicit waiver of a party's constitutional privacy rights concerning
8 the specific ailments complained of encompasses only discovery directly relevant to the plaintiff's claim.
9 A plaintiff can still assert the right of privacy to prevent disclosure of confidential medical
10 information not directly relevant to the lawsuit.
11 Here, Plaintiff contends she suffered serious injuries to the following areas: 1) a left
12 leg/shattered femur; 2) the hip, namely her left side; 3) right wrist/thumb/hand fracture; 4) fractures in
13 the back at L2, L4 and resulting pain; 5) general physical pain and suffering, mental suffering, and
14 emotional distress; and, 6) recent growths on wrist area of hands, which are being investigated.
15 As any record concerning medical conditions and/or treatment received by Plaintiff which is
16 unrelated to the injuries at issue in this case is protected by Plaintiff’s constitutional right to privacy,
17 Defendants must modify the Subpoenas by limiting the records sought to those that are related to the
18 injuries at issue in this case.
19 5. The All Star Subpoena invades attorney-client privilege and work product rights,.
20 Given the broad, limitless use of the phrasing “any and all” and “all” (as quoted above), Plaintiff
21 objects that the Subpoenas call for information/documents protected by the attorney-client privilege and
22 the work product doctrine (including litigation consultant work). Coito v. Sup. Court (2013) 54 Cal.4th
23 480; Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807; General Dynamics Corp. v. Sup. Court
24 (1994) 7 Cal.4th 1164; Dowden v. Sup. Court (1999) 73 Cal.App.4th 126; §§2017.010-2017.020 and
25 2018.010-2018.040; Evid. Code §§950-954 (lawyer-client privilege), 965-967 (lawyer referral service-
26 client privilege).
27 6. As a result of the above, the All Star Subpoena seeks irrelevant information.
28 Because of the scope and breadth of the Subpoenas’ “wording with no limitations, the Subpoena
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DEFENDANTS STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION AND MARK ALLEN
LAWSON’S RESPONSE TO SEPARATE STATEMENT
1 necessarily seeks information/documents that are neither relevant to the subject matter of the action nor
2 reasonably calculated to lead to the discovery of admissible evidence or, if relevant, so remote therefrom
3 as to make its disclosure of little or no practical benefit to Subpoenaing Party, while placing an
4 unwarranted and undue burden and expense on Plaintiff and the deponent in ascertaining and disclosing
5 such information. C.C.P. §§2017.010‐2017.020; Evid. Code §§210, 350; Weese v. Unick (1980) 102
6 Cal.App.3d 100, 104‐105; Covell v. Superior Court (1984) 159 Cal.App.3d 39, 42‐43; Greyhound v.
7 Sup. Court (1961) 56 Cal.2d 355, 384‐385; Obregon v. Sup. Court (1998) 67 Cal.App.4th 424, 431. The
8 Subpoenas thus invade additional privileges, including, but not limited to, Evidence Code §§970-971,
9 980 (marital privileges), 990-995 (physician-patient privilege), 1010-1015 (psychotherapist-patient
10 privilege) and such as Schnabel v. Superior Court (1993) 5 Cal.4th 704, 718-721 and Webb v. Standard
11 Oil Co. (1957) 49 Cal.2d 509, 513 (taxpayer privilege).
12 CALTRANS’ RESPONSE TO SEPARATE STATEMENT
13 1. The Subpoenas Are Not Overbroad
14 Plaintiff has claimed wide-ranging injuries because of the subject collision. In discovery, she
15 claimed to be suffering from a broken left femur, hip, right wrist fracture, fractured back, “general
16 physical pain and suffering, mental suffering, and emotional distress,” and wrist growths. She has
17 also claimed $7 million in general damages. Plaintiff has failed to narrow her claimed injuries to
18 specific body parts. The document categories in the subpoenas include “medical records … prescription
19 records … psychological records … imaging tests … laboratory reports/results … x-rays … discharge
20 records …” All these categories relate to medical treatment plaintiff received for her claimed injuries,
21 including her “general physical pain and suffering, mental suffering, and emotional distress.”
22 One difference between this matter at Calcor regarding the overbroad complaint is in Calcor, it
23 was the recipient of the subpoena, the third-party deponent, making the objection. In this case, none of
24 the medical providers or insurance companies receiving a subpoena have objected or sought a protective
25 order on any grounds. Rather, it is plaintiff asserting an objection on behalf of the third parties despite
26 no one requesting it. Also, unlike Calcor, plaintiff has provided no evidence demonstrating the number
27 of responsive documents, the time and expense needed to provide the documents, or why this burden
28 outweighs the documents’ probative value. Plaintiff instead makes a general proclamation of
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DEFENDANTS STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION AND MARK ALLEN
LAWSON’S RESPONSE TO SEPARATE STATEMENT
1 overbreadth without any factual support. Finally, this subpoena does not request all documents related
2 to all insurance business All Star General has conducted. That would be like the subpoenas in Calcor.
3 Rather, this subpoena only requests the documents related to a single insured for a single occurrence.
4 This way, the documents are easily identifiable and limited in scope.
5 2. No Invasion Into Any Privacy Interest
6 While plaintiff is entitled to privacy in her medical records, that interest must give way to the fair
7 adjudication and discovery of her personal injury claims. Caltrans agrees with plaintiff it is entitled to
8 the medical and billing records regarding plaintiff’s alleged injuries she has put at issue. However, it
9 appears there is a difference of understanding as to what those injuries are.
10 While plaintiff argues Caltrans is not entitled to anything unrelated to her claimed injuries, she
11 never articulates what exactly would be unrelated. As she states, in her brief and her discovery
12 responses, she has suffered, among other things, “general physical pain and suffering, mental suffering,
13 and emotional distress.” Left unqualified, this puts every part of her body at issue. Plaintiff has left no
14 stone unturned and, thus, requires Caltrans to do the same in defense against her claims. Plaintiff has
15 had an abundant amount of time to refine this, including nearly a year by the time this motion is heard to
16 amend her discovery responses. Instead, plaintiff doubles down and restates these injuries in her
17 moving papers in apparent belief it strengthens her argument. Rather, it demonstrates Caltrans’ need for
18 these records and shows the subpoenas are as narrowly tailored as plaintiff has allowed.
19 3. The Requested Records Are Not Privileged
20 Privilege is certainly an issue implicated by discovery of medical records. The privilege most
21 closely related to these records is the physician-patient codified by Evidence Code section 994. Still,
22 Evidence Code section 996 states a clear exception to this privilege for patient-litigants, which plaintiff
23 indisputably is.
24 It seems plaintiff argues the records Caltrans seeks are protected by the attorney-client privilege
25 and attorney work product protection because the medical providers are experts and/or consultants for
26 which discovery is prohibited at this state of the litigation. While treating physicians are considered
27 experts when they provide opinion testimony, their identity and opinions are not privileged the same as
28 retained experts. (Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31, 38.)
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DEFENDANTS STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION AND MARK ALLEN
LAWSON’S RESPONSE TO SEPARATE STATEMENT
1 In Schreiber, the California Supreme Court explained the difference between treating physicians
2 and retained experts. Retained experts are retained and learn of the facts of a case specifically for the
3 purpose of expressing an opinion on a party’s behalf. Treating physicians are different since they learn
4 of the facts and form opinions during their treatment of the patient, regardless of the existence of
5 litigation. (Ibid.) Since this is done independent of any attorney, there is no privilege or work product
6 protection shielding a treating physician’s treatment or opinions from disclosure in discovery.
7 If plaintiff wants to claim her treating physicians are retained experts, she has made no such
8 argument. Doing so would prevent Caltrans from obtaining information necessary to evaluate plaintiff’s
9 alleged injures. This would be an attempt to frustrate one of the fundamental tenets of discovery:
10 allowing the parties to gather evidence necessary to evaluate and resolve the underlying dispute.
11 (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 376; Emerson Elec. Co. v. Superior Court
12 (1997) 16 Cal.4th 1101, 1107.)
13 4. Insurance Records are Discoverable
14 While insurance files are afforded some protection from discovery, it is far from absolute.
15 Insurance Code section 791.13 provides several situations where an individual’s personal and privileged
16 information may be shared. Most pertinent to this matter, Insurance Code section 791.13(h) allows
17 disclosure in “response to a facially valid administrative or judicial order, including a search warrant or
18 subpoena.” (emphasis added.) Some situations allow disclosure with certain conditions, such as
19 subsection (k) which allows it for marketing purposes if medical, personal, and privileged information
20 are excluded. Subsection (h) contains no such constraints, indicating disclosure in response to a
21 subpoena should be in full.
22 Plaintiff also mistakenly argues insurance documents are not discoverable because they cannot
23 be used to show negligence. However, that is not the only value of insurance documents such as those
24 sought through these subpoenas. These documents will show whether plaintiff is eligible to recover her
25 substantial general damages claim. (Civil Code § 3333.4(a)(2).) Insurance claim files may also contain
26 evidence such as photographs, witness statements, repair estimates, among other items. None of these
27 are privileged, but they are all probative. Thus, there are no grounds upon which to grant plaintiff’s
28 motion for these documents.
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DEFENDANTS STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION AND MARK ALLEN
LAWSON’S RESPONSE TO SEPARATE STATEMENT
1 5. The Collateral Source Rule is Inapplicable
2 Plaintiff demonstrates a fundamental misunderstanding of the collateral source rule. First,
3 neither opinion for the cases she cites holds insurance documents are not discoverable because of the
4 collateral source rule. Second, the collateral source rule applies to the admissibility of evidence at trial,
5 not whether documents are discoverable. Third, Caltrans, as a public entity, is specifically entitled to
6 collateral source information pursuant to Government Code section 985. Therefore, the collateral source
7 rule has no bearing on this motion.
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9 DATED: May 13, 2020 JEANNE SCHERER, Acting Chief Counsel
JULIE JORDAN, Acting Deputy Chief Counsel
10 DOUGLAS L. JOHNSON, Assistant Chief Counsel
11 DARREN S. NAKASHIMA
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By____________________________________________
13 DARREN S. NAKASHIMA
14 Attorneys for Defendant State of California
by and through the Department of Transportation
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DEFENDANTS STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION AND MARK ALLEN
LAWSON’S RESPONSE TO SEPARATE STATEMENT