Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG08-380066
Pollak, J.
This petition for a writ of mandate seeks to overturn an order of the trial court quashing defendant’s deposition subpoena calling for the production of an existing sample of plaintiff’s blood to be tested for drugs of abuse. Normally writ review of discovery orders is not available because “typically the delay caused by such review results in greater harm than in the enforcement of an improper discovery order.” (Johnson v. Superior Court (2000) 80 Cal.App.4th 1050, 1060.) An exception to this rule applies, however, when an order denying discovery “prevents a party from having a fair opportunity to litigate his or her case.” (Id. at p. 1061.)We conclude, contrary to the trial court, that sufficient good cause has been shown to justify a limited invasion of plaintiff’s privacy for the purpose of testing the blood sample for drugs of abuse, and that preventing defendant from conducting the test may restrict his opportunity to present a material defense. We shall therefore grant the petition for a writ of mandate.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff and real party in interest Daniel Ignacio has filed a personal injury action against defendant and petitioner Daniel Ilario, alleging that on January 7, 2008, while “play” fighting in Ignacio’s home, Ilario “negligently and carelessly caused [Ignacio] to fall over a balcony 33 feet to the ground, resulting in [Ignacio sustaining] severe injuries.” Ilario has filed a general denial, alleging comparative fault and related affirmative defenses.
As explained in a supplemental Milpitas Police Department report submitted in support of the motion to quash, Ilario and another friend, Sekani Hamilton, had gone to Ignacio’s house to play video games. Ilario and Hamilton, but not Ignacio, smoked marijuana. Shortly after one o’clock in the afternoon, Ilario and Ignacio began to “play fight” with one another on a balcony outside of Ignacio’s bedroom. In the course of the play fight, and under precise circumstances that remain to be determined, Ilario pushed Ignacio against the balcony railing and Ignacio fell 33.5 feet to the ground, landing 19.5 feet from the building. Ignacio suffered serious injuries and was hospitalized for more than two months. Ilario was arrested for assault and battery causing great bodily harm.
At the hospital the day of the incident, at the request of the police a blood sample was taken from Ignacio and placed in police custody. Prior to taking that sample, while transporting Ignacio to the hospital it appears that another sample was taken. The record contains what the parties regard as a report of blood tests conducted on that sample, although the report is labeled “Drugs of Abuse Screen—Urine.” Whatever sample was taken, the report reflects negative test results for methamphetamine, cocaine, opiates, PCP, THC, and tricyclics. It also reports a positive test for benzodiazepine, which is consistent with the medical treatment Ignacio received after his fall. The report notes that this “specimen was received without chain of custody and has not been handled as a legal specimen” and that it should be used only for medical, rather than legal purposes.
The deposition subpoena in question seeks the production of the second sample, which remains in police custody and has not yet been tested. In opposing the motion to quash the subpoena, Ilario argued, “Defendant has reason to believe that Plaintiff supplied, ingested and was under the influence of an illegal drug/substance that would have materially affected Plaintiff’s perception, coordination, decision making and actions directly prior to the incident.” In granting the motion to quash, the trial court pointed to Ignacio’s privacy interest in his blood sample and, while recognizing that “this ‘informational privacy’ protection is qualified and requires that [the] court balance the right of privacy against the need for discovery,” held that Ilario had introduced no evidence to support his suspicion that Ignacio had ingested drugs before the incident and therefore that there was no compelling interest sufficient to overcome Ignacio’s right to privacy.
After Ilario filed his petition for a writ of mandate to set aside the order quashing the subpoena, this court requested informal briefing and gave notice pursuant to Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177-180) that, if appropriate, we may issue a peremptory writ in the first instance.
ANALYSIS
Ignacio’s complaint necessarily puts in issue the cause of his fall. (See Carlton v. Superior Court (1968) 261 Cal.App.2d 282, 290.) In the trial court, Ignacio’s counsel acknowledged that a hypothetical positive drug test of his client would be admissible on the issue of causation. However, he argued that there is no issue of drug use in this case, relying in part on Ignacio’s initial negative drug test, and this view was accepted by the trial court.
When one initiates litigation, his otherwise privileged medical records become discoverable on a showing of good cause if the plaintiff’s conduct is relevant to the issue of proximate cause. (Slagle v. Superior Court (1989) 211 Cal.App.3d 1309, 1314.) The purpose of conducting the test for illegal drugs is, of course, to find potential evidence that Ignacio was in a state of mind that caused or contributed to his fall. Although Ilario thus far has presented no evidence that Ignacio was under the influence of drugs at the time of the incident, the record nonetheless contains sufficient reason to justify pursuing the inquiry. When Ignacio fell from the balcony, he landed approximately 19 feet, six inches away from the building, which is not consistent with his simply falling over the railing and suggests that he may have leaped from the balcony or engaged in other volitional conduct contributing to the fall. The suspicion of drug usage is not unreasonable in light of evidence of Ignacio’s history of serious drug abuse. His high school records show that he was expelled on November 3, 2006, approximately 14 months before his fall, for selling Ecstasy. His April 30, 2008 medical records list a history of drug abuse as an active problem. Neither the witness statements denying that Ignacio smoked marijuana on the day in question nor the negative drug test negates the possible use of other drugs that may have affected his conduct. The negative drug test from the initial specimen did not test specifically for Ecstasy, the one drug with which the record shows Ignacio was previously involved, or for numerous other possible drugs of abuse. Finally, it is significant that the intrusion into Ignacio’s privacy from the blood testing will be minimal. The blood has already been drawn; it merely needs to be analyzed for the presence of mind-altering substances. In light of the relevance of blood sample results to the issue of causation and the policy of liberally construing discovery procedures in favor of disclosure (ibid.), there is good cause to justify production of the blood sample for the purpose of testing for drugs of abuse.
This fact distinguishes the present situation from the circumstances in John B. v. Superior Court (2006) 38 Cal.4th 1177, 1200-1201, on which Ignacio heavily relies in opposing Ilario’s application for relief in this court. In John B., the negative HIV test that the Supreme Court held precluded further inquiry into the party’s earlier medical condition in the absence of evidence casting doubt on the results of the test related to the very subject of the proposed additional discovery.
The waiver of privacy rights resulting from the filing of this action must nonetheless be narrowly construed to avoid the disclosure of information having no relevance to the issues raised by the litigation. (John B. v. Superior Court, supra, 38 Cal.4th at pp. 1199-1200; Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1014.) Blood samples can be tested for a multitude of diseases and other personal information with no bearing on the issues in this case. Ignacio has not waived his privacy rights with respect to all such information. In drafting a new order denying the motion to quash, the trial court should restrict the permissible analysis to matters that are relevant to the litigation—drugs of abuse and substances with the potential to alter one’s state of mind. The trial court may also impose other reasonable restrictions to maintain the confidentiality of the information resulting from the discovery. (See John B. v. Superior Court, supra, at p. 1202.)
DISPOSITION
The abbreviated Palma procedure is appropriate “when petitioner’s entitlement to relief is so obvious that no purpose could reasonably be served by plenary consideration of the issue.” (Ng v. Superior Court (1992) 4 Cal.4th 29, 35; see also Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1236-1237, 1240-1241.) Here the informal briefing has fully addressed the relevant issues. Furthermore, this accelerated procedure minimizes the potential for delaying the proceedings in the trial court to accommodate the additional discovery. Consequently, let a peremptory writ of mandate issue commanding respondent superior court to vacate its order of February 9, 2009, granting the motion to quash the subpoenas and to enter a new and different order denying that motion and requiring the production of the blood sample for the limited purpose of testing for drugs of abuse under such conditions as the trial court may impose.
McGuiness, P. J., and Siggins, J., concurred.
Similarly we do not believe that Binder v. Superior Court (1987) 196 Cal.App.3d 893, 900, cited by the trial court in support of its conclusion that Ilario has not shown a compelling interest to outweigh Ignacio’s right to privacy, is apposite. The discovery that was disallowed in Binder was not the medical records of the plaintiff, but the medical records of some 25,000 non-party patients whose private information was not at issue in the litigation.