Lantz v. Superior Court

• Decision Date: 13 October 1994
• Docket Number: No. F020911,F020911
• Citation: 28 Cal.App.4th 1839,34 Cal.Rptr.2d 358
• Court: California Court of Appeals Court of Appeals
• Parties: Monique LANTZ, Petitioner, v. The SUPERIOR COURT of Kern County, Respondent, COUNTY OF KERN et al., Real Parties in Interest.

Page 358

34 Cal.Rptr.2d 358

28 Cal.App.4th 1839

Monique LANTZ, Petitioner, v. The SUPERIOR COURT of Kern County, Respondent COUNTY OF KERN et al., Real Parties in Interest.

No. F020911.

Court of Appeal, Fifth District, California.

Oct. 13, 1994.

Carol A. Sobel, Los Angeles, for petitioner

B.C. Barmann, County Counsel, James H. Thebeau, Deputy, Bakersfield, for real parties in interest.

No appearance for respondent.

OPINION

ARDAIZ, Acting Presiding Justice.

Section 1985.3 of the Code of Civil Procedure provides a procedural mechanism designed to give notice to a "consumer" when the consumer's "personal records" are being subpoenaed by a "subpoenaing party." In this case, we conclude that when a county is a defendant in a civil action alleging sexual harassment and seeks to subpoena personal records (here, medical records) of the plaintiff/consumer, the county is a "subpoenaing party" as that term is defined in subdivision (a)(3) of the statute and must therefore give notice to the consumer in the manner prescribed by the statute.

We also conclude the superior court erred in failing to apply the appropriate standard of review to petitioner's contention that California's constitutionally guaranteed right of privacy (Cal. Const., art. I, § 1) protected certain of her medical records from discovery by the county defendant.

FACTS AND PROCEDURAL HISTORY

Petitioner Monique Lantz is the plaintiff in this civil action naming real parties County of Kern (the County), Kern County Sheriff's Department (the Department) and Sheriff Carl Sparks (Sparks) as defendants. Also named as a defendant is Donnie Youngblood, who is alleged to be a commander in the Department. ¹ Petitioner's first amended complaint alleges that she was employed as a deputy sheriff with the Department, and that while so employed she was sexually harassed by Youngblood. The first amended complaint describes specific instances of harassment which are alleged to have occurred, and many of these involve alleged attention paid by Youngblood to petitioner's breasts. ² Petitioner's first amended complaint also alleges that (1) after she filed a complaint with the Department of Fair Employment and Housing, Sparks retaliated against her by assigning her to job duties which would require her to contact Youngblood, (2) Sparks and the County negligently employed, retained and failed to supervise Youngblood, (3) Youngblood's actions were intentional and caused extreme mental anguish, (4) Youngblood's acts of sexual harassment intentionally disrupted petitioner's contractual employment relationship with the Department, and Sparks's "failure to adequately address the sexual conduct" likewise intentionally disrupted that contractual relationship, and (5) Youngblood defamed petitioner by telling her coworkers that she had "initiated sexually explicit discussions with other Sheriff Department employees."

Real parties are represented by the County Counsel for the County of Kern. On or about January 19, 1993, Katie S. Brandon, an office manager for Attorney's Messenger Service of Bakersfield, sent to petitioner's then-attorney, Carolyn D. Phillips, a letter stating:

"Dear Sir.

"Enclosed are the necessary legal documents to advise you that we are reproducing the records of: MONIQUE LANTZ on behalf of KERN COUNTY--COUNTY COUNSEL.

"If you would like a set for your files, please circle the desired location(s) and sign and return this letter within ten (10) days. If you do not comply, we will assume that copies for your office are not required.

"01. SCHMIDT, GERHARD H., GERHARD H. SCHMIDT. 3435 SAN DIMAS, BAKERSFIELD

"Sincerely, KATIE S. BRANDON"

On or about February 18, 1993, Dr. Schmidt's records pertaining to petitioner were produced and copied without any objection by petitioner. ³

Petitioner's deposition was taken on or about June 18, 1993. At that deposition petitioner was represented by attorney Carolyn Sobel. ⁴ The portions of the deposition transcript presented to us by petitioner show that at the deposition real parties' attorney expressly mentioned that he was in possession of the records of Dr. Schmidt pertaining to petitioner. The deposition transcript also shows petitioner stated at that deposition that Dr. Schmidt had performed surgery on petitioner's breasts. Petitioner also gave the following deposition testimony to explain why she had been humiliated by Youngblood's alleged actions.

"A. Plus there was another reason I was humiliated.

"Q. What was the other reason?

"A. Can I tell my attorney something?

"Q. Sure. You can talk to your attorney any time you want.

"Okay. I had another question. What was the other reason you were humiliated?

"A. I'd rather not say.

"Q. Well, if it has any bearing on any of the issues in this lawsuit, Mrs. Lantz, you really don't have a right not to say--to tell me, unless it's something your attorney objects to, it's privileged, and there's a valid objection, but if there's a reason for--you know, it's connected to the issues in the allegations in this lawsuit, I'm entitled to know all about it.

"MS. SOBEL: Can we take--

"MR. ROBINSON: You want to take a break?

"MS. SOBEL: Yeah. Can we just take a break?

"MR. ROBINSON: ⁵ Go ahead.

"(A recess was taken.)

"MS. SOBEL: Okay. She's going to answer the question, but I want to put an objection on the record first. The hesitation in the witness to answer the question is because the response relates to a medical condition that is not related to this otherwise and that has never been disclosed previously in the course of this litigation. And she's prepared to answer it at this point, but by answering it we're not waiving any objections to any records that would relate to that condition.

"MR. ROBINSON: Okay, fine. I understand.

"Q. (By Mr. Robinson) Okay. Having heard your attorney's objection, Mrs. Lantz, my question is--you said there was another reason you were humiliated. What was that reason?

"A. Youngblood knew that I had had a mastectomy, double mastectomy, and I thought it was pretty insensitive for him to be talking about holding my big tits.

"Q. Okay. Now, have you finished your answer?

"A. Yeah."

On or about June 22, 1993, petitioner's attorney, Sobel, sent a letter to real parties' attorney in which Sobel demanded the return to her of the records obtained from Dr. Schmidt. The letter stated in part:

"Because you have failed to comply with the requirements of Civil Procedure § 1995.3, [sic: 1985.3] under which notice and an opportunity to object to the subpoena of personal records is to be given to each consumer prior to production of the requested documents, we are demanding that you turn over to us immediately the original and all copies of all materials produced from the records maintained by Dr. Gerhardt Schmidt concerning Deputy Lantz.... If I do not receive a response from you by tomorrow morning and all of the documents in question, I will move for a protective order immediately."

Real parties' attorney replied in a letter dated July 2, 1993, which stated in relevant part:

"In regard to the subpena for Dr. Schmidt's records, it is our position that the County was not obligated to send a consumer notice pursuant to C.C.P. § 1985.3(a)(3). However, since the plaintiff received actual notice that Dr. Schmidt's records had been subpoenaed by a letter from Attorney's Messenger Service to Carolyn Phillips dated January 19, 1993 (a copy of the letter is attached), the plaintiff did not suffer prejudice from any lack of notice by the County. Further, there is no dispute that the plaintiff had actual notice that Dr. Schmidt's records were being subpoenaed. The plaintiff did not seek a protective order regarding these records even though they containedinformation pertaining to the plaintiff's breast surgery. Therefore any claims based on privacy have been waived by your client. Lastly, you should read your client's initial harassment departmental complaint of sexual harassment in which the plaintiff devotes two paragraphs to the cause and impact of her breast surgery and its relationship to her allegations against Commander Youngblood. Your client has put the surgery in issue in this case by claiming a special vulnerability regarding her breasts. Given the evidence of plaintiff's propensity to flaunt her breasts, the truth of her assertions on this subject are in question."

The record presented to us on this petition contains no indication that Attorney Sobel replied to the July 2, 1993, letter. On or about July 26, 1993, petitioner filed in superior court a "motion for protective order and return of improperly subpoenaed medical records." The notice of motion stated that the motion sought "an order granting a protective order limiting discovery and directing the return of certain of plaintiff's medical records improperly obtained from the office of Dr. Gerhard Schmidt, and for an order directing defendant to pay a monetary sanction to plaintiff in the sum of $2,564.00 for the reasonable expenses and attorney fees necessarily incurred by the moving party in bringing this action." ⁶ The County opposed the motion. ⁷ The motion was heard by the court on or about August 12, 1993. The court took the matter under submission and subsequently issued the following ruling denying the motion:

"Re: Plaintiff's Motion for a Protective Order and Return of Records heretofore submitted,

"Denied.

"1. Information contained within the medical records is relevant.

"2. The declaration of Katie Brandon establishes that the County Counsel's Office effectively gave a 30 day notice of its intent to access plaintiff's medical records. This notice obviates any potential constitutional defects concerning C.C.P. § 1983.5 [sic: 1985.3] as raised by plaintiff's counsel.

"3. Plaintiff's failure to notice a timely motion to quash, and subsequent failure to bring this motion earlier than August 12 suggests a lack of confidence in the asserted privacy claim. Whatever the outcome might have...