DIANE HIRSCH AN INDIVIDUAL BY AND THROUGH HER SUCCESSOR IN INTEREST SCOTT ROSEN, et al. vs DIGNITY HEALTH, et al.

Tentative: Plaintiffs’ unopposed Motion to Quash Subpoena for Personal Medical and Mental Health Information of Plaintiff is GRANTED.

2024CUPP020455: DIANE HIRSCH AN INDIVIDUAL BY AND THROUGH HER SUCCESSOR IN INTEREST SCOTT ROSEN, et al. vs DIGNITY HEALTH, et al.

DISCUSSION

I. NOTICE OF MOTION

“Notices must be in writing, and the notice of a motion, other than for a new trial, must state when, and the grounds upon which it will be made, and the papers, if any, upon which it is to be based.” (Code Civ. Proc., § 1010.) Plaintiff’s notice of motion which indicates that the motion to quash is directed to a subpoena for records served by Dignity Health on Dr. Trudy Gilbert differs from the memorandum of points and authorities which addresses a subpoena served by Defendant Vashdeo Harjani, M.D. to Dr. Trudy Gilbert. (Tosh Dec., Ex. A.)

A judge may overlook an omission in the notice when the supporting papers make clear the grounds for the relief that is sought. (Luxury Asset Lending, LLC v. Philadelphia Television Network, Inc. (2020) 56 Cal.App.5th 894, 909; Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125-1126.) The Court finds that other than the error listing Dignity Health as the subpoenaing party rather than Dr. Harjani, the notice otherwise complies with Code of Civil Procedure sections 1005(a) and 1010. The attachments to the declaration of attorney Tosh also make clear that Plaintiffs object to the subpoena issued by Dr. Harjani. Because the law respects substance over form (Civ. Code § 3528), the Court finds the notice sufficient.

II. MOTION

A plaintiff who alleges an invasion of privacy in violation of the state constitutional right to privacy must establish (1) a legally protected privacy interest, (2) a reasonable expectation of privacy in the given circumstances, and (3) a threatened intrusion that is serious. (Mathews v. Becerra (2019) 8 Cal.5th 756, 769 (“Mathews”) citing Hill v., National Collegiate Athletic Ass’n (1994) 7 Cal.4th 1, 39-40 (“Hill”); Williams v. Sup. Ct. (2017) 3 Cal.5th 531, 552 (“Williams”).) A defendant may prevail by negating any of these three elements or by pleading and proving as an affirmative defense that the invasion of privacy is justified because it substantively furthers one or more countervailing interests.

The plaintiff may then rebut the defendant’s assertion of countervailing interests by showing that there are feasible and effective alternatives to defendant’s conduct that have a lesser impact on the plaintiff’s privacy. (Mathews, supra, 8 Cal.5th at 769 (citing Hill).)

“Only obvious invasions of interests fundamental to personal autonomy must be supported by a compelling interest.” (Williams, supra, 3 Cal.5th at 556-557 (disapproving prior cases on that point holding otherwise); Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272, 288 [Except in the rare case in which a “fundamental” right of personal autonomy is involved, the defendant need not present a “‘compelling’” countervailing interest].) The psychotherapist-patient privilege is the type of privacy interest that may be overcome only on a showing of a compelling state interest. (Kirchmeyer v. Phillips (2016) 245 Cal.App.4th 1394, 1403-1404.)

Here, Plaintiff Scott Rosen is the successor in interest to Diane Hirsch and has met the initial burden of establishing (1) a legally protected privacy interest in Ms. Hirsch’s psychotherapist records; (2) a reasonable expectation of privacy in those records; and (3) a threatened intrusion that is serious, i.e., the discovery by way of subpoena of all treatment and billing records, unlimited by time or topic. (Tosh Dec., Ex. A.) The analysis therefore shifts to any countervailing

2024CUPP020455: DIANE HIRSCH AN INDIVIDUAL BY AND THROUGH HER SUCCESSOR IN INTEREST SCOTT ROSEN, et al. vs DIGNITY HEALTH, et al.

compelling interest(s) asserted by Defendant Harjani. Dr. Harjani has not opposed the motion and therefore no such interest has been identified.

Based upon the foregoing, the motion is GRANTED. The subpoena in its present form, is quashed in its entirety.

Plaintiffs shall give notice.

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