Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. BC350613 of Los Angeles County, Mel Red Recana, Judge.
Richard G. Sherman for Plaintiff and Appellant.
Office of the Los Angeles County Counsel, Roger H. Granbo, Assistant County Counsel, and Jonathan McCaverty, Deputy County Counsel for Defendants and Respondents.
MANELLA, J.
According to the underlying complaint, in a prior criminal action, plaintiff/appellant Catherine L. Nazarian was charged with cultivating marijuana, possession of concentrated cannabis, and possession of marijuana for sale (Health and Saf. Code, §§ 11358, 11357, 11359). She alleges that the charges were dismissed following the trial court’s grant of her motion to quash and traverse the search warrant for her residence.
Nazarian filed the instant lawsuit pursuant to Title 42 United States Code section 1983, based on the search of her home and her subsequent arrest. She sued the Los Angeles County Sheriff’s Department, the County of Los Angeles, and Deputy Sheriff Tom Logrecco (defendants). In pretrial proceedings, the court granted defendants’ motion to compel Nazarian to answer interrogatories concerning her use of medically recommended marijuana, and denied Nazarian’s motion to quash a subpoena for her medical records directed to Dr. Claudia Jensen, the physician who had recommended that Nazarian use marijuana. The court stated its intention to provide defendants with redacted copies of Nazarian’s medical records, but refrained from doing so pending appellate review. Following an unsuccessful petition for writ review, Nazarian dismissed her action in order to seek appellate review of the trial court’s adverse rulings.
We conclude that the court’s order compelling Nazarian to answer certain interrogatories relating to her use of medically recommended marijuana and its order denying her motion to quash the deposition subpoena for her medical records violated her right to privacy under the California Constitution. Accordingly, we reverse the order of dismissal and remand to the trial court for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
1. First Amended Complaint
In her first amended complaint (complaint), Nazarian alleged causes of action for unlawful search and seizure in violation of the Fourth and Fourteenth Amendments to the United States Constitution and false imprisonment in violation of the Fourteenth Amendment of the United States Constitution. Nazarian alleged that Deputy Sheriff Tom Logrecco searched her residence on October 17, 2003, and that his search warrant was supported by a false, perjured affidavit. Nazarian further alleged that Logrecco “knew or should have known [the affidavit] was facially false or otherwise invalid.”
According to Nazarian’s complaint, during the search of her home, marijuana was seized. Nazarian’s attorney informed Logrecco on October 20, 2003, that Nazarian had a physician’s recommendation to use marijuana. Nazarian’s attorney sent a copy of that recommendation to Logrecco, and Nazarian signed a release to allow her physician “to speak with Logrecco regarding Nazarian’s medical condition.” On December 11, 2003, Logrecco filed a felony complaint for an arrest warrant and recommended that Nazarian be held on $30,000 bail. Logrecco failed to conduct an investigation before filing such warrant. Nazarian was arrested in the airport and searched three times.
Nazarian further alleged that “Logrecco made no attempt to verify the credentials of Nazarian’s physician or otherwise discuss Nazarian’s medical condition. This policy of indifference to the Compassionate Use Act of 1996 amounted to reckless behavior and gross negligence on the part of Logrecco and [the Los Angeles County Sherriff’s Department].”
The Compassionate Use Act of 1996, referred to in the complaint “ensures that Californians who obtain and use marijuana for specified medical purposes upon the recommendation of a physician are not subject to certain criminal sanctions.” (People v. Wright (2006) 40 Cal.4th 81, 84; Health & Saf. Code, § 11362.5.) Stated otherwise, the Compassionate Use Act provides an affirmative defense to certain crimes. (People v. Wright, supra, at p. 84.)
According to Nazarian’s complaint: “These outrageous acts of Defendants... were intentional and done for the purpose of causing Nazarian to suffer humiliation, mental anguish, and emotional distress, in order that citizens of the State of California not avail themselves of the medical use of marijuana as approved by the voters a decade ago. There is a pattern of conduct of Defendants... to discourage the medical use of marijuana by California patients. This conduct is vindictive, harassing, malicious, oppressive, unlawful, and constitutes abuse of authority from the highest levels and through the chain of command downward. This conduct is an example of an investigative team gone amok in a frenzied quest to intimidate medical marijuana patients at all costs and regardless of the rule of law....” As a result of defendants’ acts, Nazarian suffered severe emotional distress, “pain and suffering which she continues to suffer, [and] injury to her mind and body.”
2. Nazarian’s Responses to Discovery
In her responses to defendants’ interrogatory requests, Nazarian stated that she “does not attribute any physical injury to the search or the arrest. However, both incidents have caused... [her] extreme fear and distress at what might have happened to her at the jail after the arrest and whether she may again be subjected to an unlawful search and arrest as a result of a completely lawful activity.” Nazarian indicated her anxiety was not subsiding, had worsened, and was felt in her stomach and head. Nazarian identified Dr. Jensen as someone who heard statements about the incident. When asked if she contended that the Compassionate Use Act provided her with complete immunity from state prosecution on October 17, 2003, or arrest on May 22, 2004, Nazarian responded, “no.”
Nazarian described the acts committed by Logrecco in violation of Title 42 United States Code section 1983 as follows: “On October 17, 2003, at [Nazarian’s] residence... Logrecco... conduct[ed] a search and seizure pursuant to a search warrant [that] was based in part upon his own false statements in his search warrant affidavit. Defendant Logrecco knew or should have known his search warrant was facially or otherwise invalid. Numerous items were seized at that time from [Nazarian’s] home, including but not limited to medical marijuana and other personal property.... On December 11, 2003, and having conducted no further investigation Defendant Logrecco filed a felony complaint for [Nazarian’s] arrest, despite knowing that she was a medical marijuana patient of a licensed California physician and that he had no probable cause to believe that she had broken any law set forth in his felony complaint.” Logrecco’s allegedly false affidavit is not included in our record.
3. Motion to Compel Answers to Interrogatories on Nazarian’s Medical History
On January 26, 2007, defendants filed a motion to compel answers to special interrogatories Nos. 15, 17, 18, 19, 20, and 21 all of which concern Nazarian’s medical history. Because of their importance in evaluating the trial court’s rulings, we quote each one:
15. “Please state what medical conditions you suffer from which resulted in your being prescribed marijuana for the year 2003.”
17. “When is the first occasion upon which you received a prescription for medical use of marijuana and who was the prescribing physician?”
18. “Are you currently prescribed marijuana for any medical condition?”
19. “If your answer to interrogatory 18 is ‘yes’ please identify by name and address the physician currently prescribing medical marijuana and the condition for which it is prescribed.”
20. “Please state the name of any medications, prescribed or not, other than marijuana, that YOU took or were prescribed in the year 2003.”
21. “Please identify all treating physicians who prescribed medication for you (other than marijuana) in 2003 and the conditions for which they were prescribed.”
In their separate statement, defendants argued that the court should compel answers to each interrogatory because Nazarian claimed emotional distress and because she claimed to have suffered from head and stomach discomfort. With respect to interrogatory No. 17, defendants further claimed it was relevant to Nazarian’s capacity to “recollect and perceive.”
4. Motion to Quash Deposition Subpoenas
Defendants served subpoenas for the personal appearance and production of business records of Dr. Jensen. The latter sought “[a]ll documents, sign-in sheets and records pertaining to the care, treatment and examination of [Nazarian], all office, emergency room, inpatient and outpatient charts and records connected with [Nazarian] from the first date of treatment to and including the present.” On February 9, 2007, Nazarian filed a motion to quash the deposition subpoena of Dr. Jensen. Nazarian argued that her medical records were irrelevant to the lawsuit because the violations she alleged would have occurred regardless of whether she was a medical marijuana patient. She also argued that she had a constitutionally protected privacy interest in her records.
Defendants responded that Nazarian’s medical records were relevant because Nazarian’s “alleged civil rights violations stem[] from what she concedes to be disregard of the Compassionate Use Act, under which provisions she claims protection. For Plaintiff to assert that Defendants are precluded from making inquiry into her medical condition, which she claims immunized her from prosecution and for which she was prescribed ‘medical marijuana’ is absurd.”
5. Trial Court Findings
The trial court reviewed Dr. Jensen’s records and found certain documents discoverable. The court stated, “I spent about four hours last night going through each line and making the determination whether the information that’s on the medical record has any relevance to the case.” It also redacted some of the records and concluded that others should not be provided to defendants.
The appellate record does not include Nazarian’s medical records or further elucidate which ones the trial court found to be discoverable.
The court denied Nazarian’s motion to quash. Its principal rationale was that Nazarian alleged that her counsel had requested Logrecco contact Dr. Jensen to discuss the validity of Nazarian’s medical marijuana recommendation. The court, however, later acknowledged that its rationale “may be wrong” if Nazarian’s only request was that Logrecco confirm that she had a valid recommendation to use medical marijuana. The court subsequently clarified that its order also encompassed a ruling in favor of defendants on their motion to compel answers to interrogatories Nos. 15, 17, 18, 19, 20, and 21.
On August 7, 2007, this court denied Nazarian’s petition for writ of mandate seeking review of the trial court’s discovery orders. Subsequently, the parties stipulated to a voluntary dismissal to expedite an appeal. On December 30, 2008, the case was dismissed with prejudice.
On our own motion, we take judicial notice of the file in Nazarian v. Superior Court (August 7, 2007, B198939). (Evid. Code, § 452, subd. (d).)
6. Appeal
Nazarian appealed from the order dismissing the case with prejudice. We conclude that we have jurisdiction to consider the appeal.
The general rule is that a voluntary dismissal with prejudice forecloses appellate review. (Yancey v. Fink (1991) 226 Cal.App.3d1334, 1342-1343 [no appeal lies from a voluntary dismissal].) However, “appellate courts treat a voluntary dismissal with prejudice as an appealable order if it was entered after an adverse ruling by the trial court in order to expedite an appeal of the ruling.” (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1012.) Nazarian dismissed her claims with prejudice, and the dismissal had the effect of a final judgment. (Compare Ashland Chemical Co. v. Provence (1982) 129 Cal.App.3d790, 793 [dismissal with prejudice only to obtain final judgment to contest trial court’s ruling was appealable]; cf. Gutkin v. University of Southern California (2002) 101 Cal.App.4th 967, 975 [dismissal without prejudice did not have effect of final judgment and therefore discovery order could not be appealed].)
DISCUSSION
We review the trial court’s discovery determination for abuse of discretion. (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1186.) Where the facts are undisputed, we review issues of law novo. (Doe 2 v. Superior Court (2005) 132 Cal.App.4th 1504, 1515 [discovery dispute concerning privilege].) A trial court abuses its discretion if it applies the wrong legal standard. (Id. at p. 1517.)
1. Defendants Seek Constitutionally Protected Information and Must Satisfy a Heightened Discovery Standard
In general, unprivileged information is discoverable if it is relevant to the subject matter of the litigation or reasonably calculated to reveal admissible evidence. (John B. v. Superior Court, supra, 38 Cal.4th at p. 1186.) Code of Civil Procedure section 2017.010 provides: “Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action.”
Defendants rely on the foregoing standard, arguing that the information they seek is relevant to their defense. For example, they cite Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 987, for the proposition that “[a]bsent a showing that substantial interests will be impaired by allowing discovery, liberal policies of discovery rules will generally counsel against overturning a trial court’s decision granting discovery.” The standard relied on by defendants, however, is not the correct one for determining the discoverability of information protected by the constitutional right to privacy, which encompasses the information defendants seek.
“Article I, section 1 of the California Constitution recognizes a number of inalienable rights, including the right to privacy.” (John B. v. Superior Court, supra, 38 Cal.4th at p. 1198.) “[T]he right of privacy extends to... medical records [citation].” (Ibid; see also Lantz v. Superior Court (1994) 28 Cal.App.4th 1839, 1853 [the constitutional provision encompasses the details of a patient’s medical history].) “‘The individual’s right to privacy encompasses not only the state of his mind, but also his viscera, detailed complaints of physical ills, and their emotional overtones.’ [Citations] ‘The state of a person’s gastro-intestinal tract is as much entitled to privacy from unauthorized public or bureaucratic snooping as is that person’s bank account, the contents of his library or his membership in the NAACP.’” (Lantz v. Superior Court, supra, 28 Cal.App.4th at p. 1853.)
“[A] litigant may invoke the constitutional right to privacy as justification for refusing to answer questions that unreasonably intrude on that right. [Citations.] [¶] The right to privacy, however, is not absolute. In appropriate circumstances, this right must be balanced against other important interests. [Citation.] ‘On occasion [a party’s] privacy interests may have to give way to [the] opponent’s right to a fair trial. Thus courts must balance the right of civil litigants to discover relevant facts against the privacy interests of persons subject to discovery.’ [Citation.]” (John B. v. Superior Court, supra, 38 Cal.4th at pp. 1198-1199.)
“[W]hen the constitutional right of privacy is involved, the party seeking discovery of private matter must do more than satisfy” the relevance standard. (Lantzv. Superior Court, supra, 28 Cal.App.4th at p. 1853.) The burden is on the party seeking discovery of constitutionally protected information to establish direct relevance. (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1017) Even where a party can show a compelling state interest in discovery, “‘“‘“[p]recision of [compelled disclosure]”’”’” is required so that the right of privacy is not “‘“‘“curtailed except to the extent necessitated by the legitimate governmental objective.”’”’” (John B. v. Superior Court, supra, 38 Cal.4th at pp. 1199-1200.) The California Supreme Court described this as a “heightened standard” requiring a close fit between the requested discovery and the allegations in the complaint. (Id. at p. 1200.)
a. Information Related to Nazarian’s Claim of Emotional Distress is Discoverable
In each cause of action, Nazarian alleged that as a result of defendants’ conduct, she “suffered serious and severe emotional distress... pain and suffering which she continues to suffer, [and] injury to her mind and body.” In her interrogatory responses, Nazarian elaborated that she felt the pain in her head and stomach.
“[A] party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 839.) “[B]y asserting a causal link between her mental distress and defendants’ conduct, plaintiff implicitly claims it was not caused by a preexisting mental condition, thereby raising the question of alternative sources for the distress.” (Id. at p. 840.) Nazarian placed her emotional condition in controversy and waived her right to privacy in this respect. (Id. at p. 842; see also Scull v. Superior Court (1988) 206 Cal.App.3d 784, 791 [suit for damages to psyche results in waiver of constitutional privacy right].)
This case is distinguishable from Davis v. Superior Court, supra, 7 Cal.App.4th 1008, where the court found the plaintiff’s “garden-variety” personal injury claim seeking damages for pain and suffering associated with injuries sustained in an automobile accident did not automatically entitle the defendant to discovery of psychotherapeutic records. (Id. at pp. 1011, 1015, 1017.) In Davis v. Superior Court, the plaintiff made no claim for emotional distress damages and limited her claim for pain and suffering to that associated with bodily injuries sustained in the accident. (Id. at p. 1015.) Here, Nazarian alleges she suffered fear, anxiety, and emotional distress manifesting itself in her head and stomach.
Although defendants are entitled to discovery regarding Nazarian’s mental state for purposes of evaluating her claim of emotional distress, their interrogatory requests and deposition subpoena were not narrowly tailored to elicit evidence bearing on her mental state. (See Palay v. Superior Court (1993) 18 Cal.App.4th 919, 934 [compelling state interest in disclosure of private information must be achieved by least intrusive means].) To the contrary, they seek her entire medical file. While information requested in interrogatories Nos. 20 and 21 concerning medications prescribed and taken in 2003 may bear on Nazarian’s mental state, those interrogatories are not so limited. Defendants identify no link between Nazarian’s past or present use of medical marijuana (sought in interrogatories Nos. 15, 17, 18, and 19) and her claim of emotional distress.
b. Defendants Have Not Shown the Remaining Information They Seek is Relevant or Discoverable
Defendants have not shown the information they seek related to Nazarian’s recommended use of medical marijuana is relevant to any allegation in Nazarian’s complaint. Defendants do not request (and apparently already have) a copy of Dr. Jensen’s 2003 recommendation that Nazarian use medical marijuana. Instead, defendants seek additional information regarding the condition underlying that 2003 recommendation, and other recommendations for the use of marijuana.
Defendants’ arguments for compelling discovery are unpersuasive. First, while defendants correctly point out that Nazarian alleges a policy of indifference to the Compassionate Use Act, Nazarian’s use of medical marijuana prior to 2003 or after 2003 or the condition underlying her recommendation in 2003 is not relevant to the truth or falsity of her allegation of a policy of indifference. Second, their claim that Nazarian placed her physical condition at issue is unsupported by the complaint. Defendants identify no specific allegation showing Nazarian placed her physical condition at issue by alleging an unlawful search and arrest, and we find none. Third, defendants’ statement that information regarding the first occasion on which Nazarian obtained a recommendation for medical marijuana (interrogatory No. 17) bears on her ability to “recollect and perceive” is insufficient to meet their burden to compel discovery because they identify no link between a recommendation for the use of medical marijuana and a person’s ability to perceive and recollect. Finally, defendants’ repeated assertion that this civil case concerns whether Nazarian claims protection under the Compassionate Use Act is not supported by the operative pleading or interrogatory responses.
Defendants are not foreclosed from presenting evidence upon remand showing a compelling need for discovery. (See John B. v. Superior Court, supra, 38 Cal.4th at p. 1201 [considering request based on record as it stood, but allowing plaintiff to provide additional evidence on remand]; see also Lantz v. Superior Court, supra, 28 Cal.App.4th at pp. 1853-1854 [“The party seeking discovery must demonstrate a compelling need for discovery, and that compelling need must be so strong as to outweigh the privacy right when these two competing interests are carefully balanced.”].) In doing so, however, defendants must narrowly tailor their requests to elicit information relevant to the current civil litigation. (See Palay v. Superior Court, supra, 18 Cal.App.4th at p. 934 [such requests should be narrowly tailored to seek information to which defendants have a compelling need].)
2. Defendants Have Not Demonstrated a Waiver
The challenged discovery concerns Nazarian’s entire medical file in Dr. Jensen’s custody as well as questions regarding her recommendation for marijuana use and other prescription drugs. Defendants argue that Nazarian waived the physician-patient privilege by allowing Logrecco to contact Dr. Jensen in the underlying criminal action.
a. Physician-Patient Privilege
We need not decide either the extent of Nazarian’s waiver in the criminal action or whether such a waiver applies to a subsequent civil action because Nazarian does not rely on the physician-patient privilege. Even where the physician-patient privilege is inapplicable, the right to privacy under the State Constitution must still be considered. (See John B. v. Superior Court, supra, 38 Cal.4th at p. 1202 [finding physician-patient privilege waived but still applying constitutional requirements]; San Diego Trolley, Inc. v. Superior Court (2001) 87 Cal.App.4th 1083, 1092 [“Notwithstanding waiver of a statutory privilege, a patient retains the more general right to privacy protected by the state and federal Constitutions.”].) In short, defendants’ argument regarding waiver is unhelpful because it is not a basis claimed by Nazarian for withholding the requested information.
Evidence Code section 912, subdivision (a) provides in part: “Except as otherwise provided in this section, the right of any person to claim a privilege provided by Section... 994 (physician-patient privilege)... is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone.”
b. Right to Privacy
Nazarian does invoke her constitutional right to privacy. Another court has held that providing a physician’s recommendation for use of medical marijuana does not result in the waiver of a patient’s right to confidentiality in his or her medical file. (Bearman v. Superior Court (2004) 117 Cal.App.4th 463, 473-475.) Although Bearman is distinguishable because it involved a case brought by the medical board, not by the patient, the court emphasized that “even when a plaintiff files an action that places his or her medical records at issue, waivers of constitutional rights are narrowly construed and not lightly found.” (Id. at p. 473.) Applying this principle here, we find Nazarian did not waive her right to privacy in her entire medical file by presenting Logrecco with her doctor’s recommendation or allowing Logrecco to discuss that recommendation with Dr. Jensen.
Instead, Nazarian waived her privacy right to matters placed at issue in the litigation. (John B. v. Superior Court, supra, 38 Cal.4th at p. 1199 [a party’s privacy interest may need to yield to the opponent’s interest in a fair trial]; Vinson v. Superior Court, supra, 43 Cal.3d at p. 842 [person who alleges emotional distress placed mental state in controversy].) Defendants themselves underscore that their claim is not that Nazarian “has waived her right to privacy by presenting a letter to law enforcement concerning her qualifications under the Compassionate Use Act. Rather,... Defendants argue... that Plaintiff has waived her right to privacy because she chose to file suit and place her medical condition directly at issue.” That is the appropriate standard for evaluating whether defendants are entitled to discovery where their right must be balanced with Nazarian’s right to privacy. That is the standard we applied above to conclude that at this point, defendants were entitled only to evidence related to Nazarian’s claim of emotional distress.
Defendants argue that they should be allowed to depose Dr. Jensen because she was identified as a potential witness. Nazarian’s motion to quash focused not on Dr. Jensen, but on the medical records in her possession. In any event, Nazarian represents that Dr. Jensen is now deceased.
DISPOSITION
The judgment of dismissal is reversed. The case is remanded to the trial court for further proceedings consistent with this opinion. Nazarian is entitled to costs on appeal.
We concur: WILLHITE, Acting P. J. SUZUKAWA, J.