Tiffany Mcbryde vs. Riverside School, Inc.

34-2023-00336650-CU-NP-GDS: Tiffany Mcbryde vs. Riverside School, Inc. 12/11/2024 Hearing on Motion to Quash Subpoenas in Department 54

Tentative Ruling

Plaintiffs Tiffany McBryde, Hanee Peterman, and N.P., a minor, by and through her guardian ad litem, Tiffany McBryde (collectively, “Plaintiffs”) motion to quash records subpoenas served by Defendant Riverside School, Inc. dba Brookfield School (“Defendant” or “Brookfield”) is ruled upon as follows.

The notice of motion does not provide notice of the Court’s tentative ruling system, as required by Local Rule 1.06. Moving counsel is directed to contact opposing counsel and advise of Local Rule 1.06 and the Court’s tentative ruling procedure and the manner to request a hearing. If moving counsel is unable to contact opposing counsel prior to hearing, moving counsel is ordered to appear at the hearing by Zoom or in person.

Background

Plaintiffs McBryde and Peterman are the parents of Plaintiff N.P. In 2018, McBryde and Peterman enrolled N.P. in preschool at Brookfield, a private, secular, independent school serving students from grades pre-kindergarten to 8th grade. Plaintiffs allege that N.P experienced harassment, discrimination, and bullying while attending Brookfield on the basis of her race and religion. N.P. is African-American. McBryde and Peterman practice a Christian religion that prohibits pledging allegiance to national flags on the basis that such acts are blasphemous and idolatrous.

McBryde and Peterman have raised N.P. to adhere to this religious principle. In their First Amended Complaint (“FAC”), Plaintiffs bring 13 causes action, including federal and state civil rights claims, negligence, negligent hiring/retention/supervision, and breach of contract. Under several causes of action, Plaintiffs allege that as a result of Defendant’s conduct, N.P. has suffered various forms of emotional distress. (See, FAC, ¶¶ 39, 49, 78, 101-104.)

On July 24, 2024, Defendant served a total of 10 subpoenas to schools attended by N.P. before and after Brookfield, to Plaintiffs’ medical and psychological treatment providers, and to Plaintiff Peterman’s pastor. The subpoenas to N.P.’s schools seek:

Any and all educational records, including but not limited to academic evaluations, including student examination papers, transcripts, test scores and other academic records, general counseling and advising records, disciplinary records, financial aid records, including student loan collection records and monies earned from the academic institution through work study programs or other employment, documents relating to attendance, leave of absences (whether for vacation, sick leave or other reasons), class lists, student course schedules, reported injuries, performance evaluations, health examinations or other medical, psychological and/or health records maintained by the institution. These records should include any information recorded in any way, including but not limited to, handwriting, print, computer media, videotape, audiotape, film, microfilm, microfiche, and e-mail.

34-2023-00336650-CU-NP-GDS: Tiffany Mcbryde vs. Riverside School, Inc. 12/11/2024 Hearing on Motion to Quash Subpoenas in Department 54

(Parker Decl., Exhs. A-B.)

The remaining subpoenas, including the one sent to Plaintiff Peterman’s pastor, seek:

Any and all medical records, psychotherapy notes, and clinical information concerning the assessment, evaluation, treatment, and/or hospitalization related to mental health or psychiatric illnesses or conditions.

(Parker Decl., Exhs. C-J.)

Plaintiffs contend that the subpoenas are overbroad and violate their constitutional privacy rights as they seek records that have not been put at issue by Plaintiffs in this lawsuit and are thus not relevant or discoverable. Defendant contends that it is entitled to the records sought because Plaintiffs’ allegations in the FAC and their discovery responses have put their psychological medical conditions and N.P.’s educational performance at issue. During the meet-and-confer process, Plaintiffs’ counsel proposed a “first-look” procedure, but this was rejected by Defendant’s counsel.

Discussion

Generally, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc. § 2017.010.)

A party seeking disclosure of private information must show a compelling interest “to justify ‘an obvious invasion of an interest fundamental to personal autonomy.’” (Williams v. Superior Court (2017) 3 Cal.5th 531, 556.) When a lesser privacy interests are involved, a compelling interest is not required. Instead, a balancing test is applied, “with the strength of the countervailing interest sufficient to warrant disclosure of private information varying according to the strength of the privacy interest itself, the seriousness of the invasion, and the availability of alternatives and protective measures.” (Ibid.)

Medical records, to the extent that they involve confidential communication between a patient and a physician, are statutorily protected by the physician-patient privilege. (See Evid. Code § 994.) This privilege is waived if the patient puts his or her medical condition at issue. (Evid. Code § 996.) However, this is waiver is limited: “while [patient-litigants] may not withhold information which relates to any physical or mental condition which they have put in issue by bringing [the] lawsuit, they are entitled to retain the confidentiality of all unrelated medical or psychotherapeutic treatment they may have undergone in the past.” (Britt v. Superior Court (1978) 20 Cal.3d 844, 864.) Medical records are protected not only by the physician-patient

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00336650-CU-NP-GDS: Tiffany Mcbryde vs. Riverside School, Inc. 12/11/2024 Hearing on Motion to Quash Subpoenas in Department 54

privilege, but also by the right to privacy guaranteed by the California Constitution. (See Bd. of Medical Quality Assurance v. Gherandini (1979) 93 Cal.App.3d 669, 678-679; see also Lewis v. Superior Court (2017) 3 Cal.5th 561, 575.) This constitutional right to privacy is also subject to a similar waiver. (See Heller v. Norcal Mut. Ins. Co. (1994) 8 Cal.4th 30, 42; California Consumer Health Care Council v. Kaiser Found. Health Plan, Inc. (2006) 142 Cal.App.4th 21, 31.) Like waivers of the physician-patient privilege, waivers of the constitutional right to privacy must be narrowly construed. (See Bearman v.

Superior Court (2004) 117 Cal.App.4th 463, 473; see also Britt, supra, 20 Cal.3d at p. 859 [waiver of right to privacy regarding associational activities must be narrowly construed].) “Mere speculation as to the possibility that some portion of the records might be relevant to some substantive issue does not suffice.” (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1017.)

The right to privacy in medical records has long been recognized. The right to privacy provided for in the California Constitution may be invoked by a litigant as justification for refusal to answer questions or respond to requests for information that unreasonably intrude on that right. A plaintiff asserting a privacy claim has the burden of establishing each element, specifically: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy; and (3) a serious invasion of the privacy interest. (See, e.g.

Hill v. National Collegiate Athletic Assn. (1994) 7 Cal. 4th 1.) There can be no dispute that the right to privacy encompasses a person’s medical information. “A person’s medical profile is an area of privacy infinitely more intimate, more personal in quality and nature than many areas already judicially recognized and protected.” (Bd. of Medical Quality Assurance v. Gherardini, supra, 93 Cal.App.3d at 678.) [disapproved by Williams, supra, 3 Cal.5th at p. 557, fn. 8 only to the extent that the case assumed without conducting the Hill analysis that a compelling need is automatically required when a party seeks discovery of private information].)

Subpoenas to N.P.’s Schools

The two subpoenas to the schools attended by N.P. before and after Brookfield broadly seek “all educational records.” (Parker Decl., Exhs. A-B.) Education records are entitled to certain privacy protections under both California and federal law. (Rim of the World Unified School Dist. v. Superior Court (2002) 104 Cal.App.4th 1392.) “A school district shall not permit access to pupil records to a person without written parental consent or under judicial order” subject to certain exceptions not relevant here. (Ed. Code § 49076(a).) However, standard education records, such as academic performance records, disciplinary records, and the like, do not involve “‘an interest fundamental to personal autonomy.’” (Williams, supra, 3 Cal.5th at p. 556.) Thus, disclosure of these records is subject to a general balancing test.

Here, the Court finds that the education records are discoverable. N.P.’s discovery responses indicate that she suffers from ongoing anxiety, emotional distress, and depression as a result of the alleged incidents at Brookfield, and that her symptoms are “exacerbated by reminders of or similar environments” to the alleged incidents. (White Decl., Exh. B, No. 6.3.) Thus, N.P.’s

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00336650-CU-NP-GDS: Tiffany Mcbryde vs. Riverside School, Inc. 12/11/2024 Hearing on Motion to Quash Subpoenas in Department 54

performance and behavior at school before and after attending Brookfield appears relevant to Plaintiffs’ claims. At the same time, the privacy interests involved with these records are relatively minor.

However, the Court finds the subpoenas as phrased are overbroad. Again, the subpoenas seek all records, without any limitation, and the exemplary categories identified include records of “reported injuries, health examinations or other medical, [or] health records maintained by the institution.” (Parker Decl., Exhs. A-B.) This would include records of physical injuries or medical conditions that are unrelated to Plaintiffs’ claims. The Court recognizes that Plaintiffs’ FAC alleges that N.P. has suffered “severe physical sickness and injury,” and “physical pain and suffering.” (See, e.g., FAC, § 98.)

However, N.P.’s discovery responses state that she “attributes emotional and psychological injuries” to the alleged incidents, and she identified her injuries as “[e]motional distress, anxiety, depression.” (White Decl., Exh. B, Nos. 6.1 and 6.2.) Thus, N.P. has not put her physical medical history at issue, and Defendant has not shown a compelling need for records related to N.P.’s physical medical history.

Accordingly, Plaintiffs’ motion to quash Defendant’s subpoenas to N.P.’s schools is GRANTED.

Subpoena to N.P.’s Medical Providers

N.P.’s discovery responses state that she received psychological counseling related to her injuries at Kaiser Permanente from 2021 to the present. (White Decl., Exh. B, No. 6.4.) The responses also state that N.P. has been advised by Eric Burns, MA, LMFT that she will or may need “ongoing psychological counseling for managing stress and anxiety.” (White Decl., Exh. B, No. 6.7.)

The Court finds that the subpoenas to N.P.’s medical providers are sufficiently limited in scope and seek only records to which Defendant is entitled. While the subpoenas seek “all medical records,” they are expressly limited to records “related to mental health or psychiatric illnesses or conditions.” (Parker Decl., Exhs. C and D.) N.P. has put her mental health history at issue in this case by claiming that she suffered anxiety, depression, and other emotional issues as a result of her experiences at Brookfield.

Defendant is entitled to investigate these claims, and the records sought are relevant not only to damages but also to causation, at a minimum. Further, the facilities are identified in N.P.’s discovery responses as places she has received treatment or consultation for her injuries. Finally, the fact that the subpoenas are not limited in time is not a concern here, since the incidents at issue in this case began when N.P. was two years old.

Thus, Plaintiffs’ motion to quash the subpoenas to Kaiser Permanente and Eric Burns, MA, LMFT in relation to N.P. is DENIED.

Subpoenas to McBryde’s Medical Providers

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00336650-CU-NP-GDS: Tiffany Mcbryde vs. Riverside School, Inc. 12/11/2024 Hearing on Motion to Quash Subpoenas in Department 54

McBryde’s discovery responses state that she “attributes emotional and mental injuries” to the alleged incidents and that her injuries affected her “overall mental health.” (White Decl., Exh. H, Nos. 6.1 and 6.2.) McBryde also stated that she received treatment for her injuries from Eryca Taylor, MFT and Monica Hefner, LCSW. (White Decl., Exh. H, No. 6.4.) She also stated that these providers, as well as Ronnia Porchia, have advised her that she will or may need “ongoing psychological counseling for managing stress and anxiety.” (White Decl., Exh. H, No. 6.7.) Finally, McBryde stated that she was prescribed Ativan by Kaiser in relation to her injuries. (White Decl., Exh. H, No. 6.5.)

Here, the language of the subpoenas is identical to the subpoenas to N.P.’s providers, and thus much of the same reasoning discussed above applies here. McBryde has put her emotional and mental condition at issue in this case. The subpoenas are directed to providers from whom she has received treatment for her injuries in this case. However, the Court finds that the lack of a limitation as to time renders the subpoenas overbroad. While it is not clear whether McBryde has received treatment from any of these providers in the past, the subpoenas as phrased encompass records from McBryde’s entire life. No compelling need has been shown for records from McBryde’s childhood.

Code of Civil Procedure section 1987.1 authorizes a court to quash, modify, or limit a subpoena. (Code Civ. Proc. § 1987.1(a).) The Court therefore MODIFIES Defendant’s subpoenas to Kaiser Permanente, Eryca Taylor, MFT, Monica Hefner, LCSW, and Ronnia Porchia, LPC in relation to Tiffany McBryde to include records from January 1, 2008 to the present, as this is ten years before N.P.’s enrollment at Brookfield.

Subpoena to Peterman’s Provider

Peterman’s discovery responses state that he “experienced emotional distress that affected his overall mental health.” (White Decl., Exh. E, No. 6.2.) Peterman also stated that he received treatment from Ronnie Porchia, LPC. (White Decl., Exh. E, No. 6.4.) Here, the subpoena to Ronnie Porchia uses the same language as the other subpoenas to N.P. and McBryde’s providers. Thus, the same reasoning applies.

Accordingly, the Court MODIFIES Defendant’s subpoena to Ronnie Porchia, LPC in relation to Hanee Peterman to include records from January 1, 2008 to the present, as this is ten years before N.P.’s enrollment at Brookfield.

Subpoena to Peterman’s Pastor

Peterman’s discovery responses also state that he received therapy from Pastor Richard Sherman. (White Decl., Exh. E, No. 6.4.) Thus, Defendant subpoenaed records from Pastor Sherman using the same language as the subpoenas to the medical providers.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00336650-CU-NP-GDS: Tiffany Mcbryde vs. Riverside School, Inc. 12/11/2024 Hearing on Motion to Quash Subpoenas in Department 54

The clergy-penitent privilege is codified at Evidence Code sections 1030-1034. (Roman Catholic Archbishop of Los Angeles v. Superior Court (2005) 131 Cal.App.4th 417, 443.) “The priestpenitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return.” (Trammel v. United States (1980) 445 U.S. 40, 51.) For the privilege to apply, “‘1) it must be intended to be in confidence; 2) it must be made to a member of the clergy who in the course of his or her religious discipline or practice is authorized or accustomed to hear such communications; and 3) such member of the clergy has a duty under the discipline or tenets of the church, religious denomination or organization to keep such communications secret.’” (Roman Catholic Archbishop of Los Angeles, supra, 131 Cal.App.4th at pp. 443-444.)

Here, Plaintiffs have not cited the clergy-penitent privilege, and thus they have not established that it applies in this case. The Court will not assume it is applicable simply because Pastor Sherman is identified as a pastor. The Court therefore views this subpoena as the same as the ones to the medical providers and applies the same analysis. Plaintiffs refer to the right to associational privacy in relation to the practice of one’s religion, but Plaintiffs fail to explain the relevance of this privacy right here, particularly since Peterman’s choice of religion is not a secret.

Accordingly, the Court MODIFIES Defendant’s subpoena to Pastor Richard Sherman in relation to Hanee Peterman to include records from January 1, 2008 to the present, as this is ten years before N.P.’s enrollment at Brookfield.

Disposition

Plaintiffs’ motion to quash is GRANTED as to the subpoenas to N.P.’s schools. The motion is DENIED as to the subpoenas to N.P.’s medical providers. The remaining subpoenas are MODIFIED as stated herein.

Plaintiffs’ request for sanctions is DENIED as the Court finds that the motion was not opposed in bad faith or without substantial justification, and the subpoenas were not oppressive. (Code Civ. Proc. § 1987.2(a).)

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. § 1019.5; Cal. Rules of Court, rule 3.1312.)

NOTICE:

Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendar must comply with the following procedure:

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00336650-CU-NP-GDS: Tiffany Mcbryde vs. Riverside School, Inc. 12/11/2024 Hearing on Motion to Quash Subpoenas in Department 54

To request limited oral argument, on any matter on this calendar, you must call the Law and Motion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before the hearing and advise opposing counsel. At the time of requesting oral argument, the requesting party shall leave a voice mail message: a) identifying themselves as the party requesting oral argument; b) indicating the specific matter/motion for which they are requesting oral argument; and c) confirming that it has notified the opposing party of its intention to appear and that opposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If no request for oral argument is made, the tentative ruling becomes the final order of the Court.

Unless ordered to appear in person by the Court, parties may appear remotely either telephonically or by video conference via the Zoom video/audio conference platform with notice to the Court and all other parties in accordance with Code of Civil Procedure §367.75. Although remote participation is not required, the Court will presume all parties are appearing remotely for non-evidentiary civil hearings. The Department 53/54 Zoom Link is https://saccourt-cagov.zoomgov.com/my/sscdept53.54 and the Zoom Meeting ID is 161 4650 6749. To appear on Zoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NO COURTCALL APPEARANCES WILL BE ACCEPTED.

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