Opinion
NOT TO BE PUBLISHED
Proceedings in mandate after trial court granted discovery motion. No. 37-2007-00061525-CU-PA-EC Eddie C. Sturgeon, Judge.
McDONALD, J.
FACTUAL AND PROCEDURAL BACKGROUND
Michael Predmore was driving his car on July 9, 2007, when he hit pedestrian Morgan Dunn. Dunn through her guardian ad litem filed a personal injury action against Predmore.
At his deposition on May 5, 2008, Predmore testified that he did not drink alcohol on the day of the accident and had not consumed any alcohol for the past three years. Dunn's counsel asked Predmore (1) what made him stop drinking, (2) whether he ever sought treatment for alcoholism, (3) whether he was a member of Alcoholics Anonymous (AA), and (4) whether he attended any AA meetings the year before or year after the accident. Defense counsel countered that there was no evidence from any of the witnesses or investigating officers that Predmore had been drinking, objected to the questions on privacy grounds, and directed Predmore not to answer.
Dunn moved to compel answers to deposition questions on the basis that Predmore had told a witness at the scene that he had come from a local Veterans of Foreign Affairs (VFW) post but denied doing so at his deposition; VFW posts are known for providing "well-subsidized alcoholic beverages" to members; and if Predmore had been returning from a VFW post, it would be likely that he was intoxicated. At the September 5 argument, the court ordered Predmore to answer the four questions and pay $500 in sanctions.
The September 5 minute order indicates that the court required Predmore to answer two questions. However, the reporter's transcript of the September 5 hearing reflects that the court ordered Predmore to answer the four questions. Under the circumstances here, we conclude the transcript is entitled to greater credence. (People v. Smith (1983) 33 Cal.3d 596, 599; Fletcher v. Commission on Judicial Performance (1998) 19 Cal.4th 865, 889.)
Predmore filed this petition challenging the grant of the motion to compel. We stayed the deposition, requested a response, and later issued Palma notice. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171.)
Predmore filed a reply on the same day we issued Palma notice. However, because the reply is dedicated to postruling discovery, we do not consider it.
DISCUSSION
The California Constitution guarantees all people certain inalienable rights, among them the right of "pursuing and obtaining . . . privacy." (Cal. Const., art. 1, §1.) The right of privacy extends to information in an individual's medical records, information about his or her physical and mental condition, and information in his or her medical history. (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1198-1199; Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 41; Board of Medical Quality Assurance v. Gherardini (1979) 93 Cal.App.3d 669, 678-679.) Medical history includes care and treatment for alcohol and drug problems. (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1012 [no disclosure of women's center records of plaintiff's treatment for driving under the influence and symptoms of withdrawal]; Carlton v. Superior Court (1968) 261 Cal.App.2d 282 [no inspection of hospital records related to alleged intoxicated condition of defendant driver hospitalized after accident].)
When the constitutional right of privacy is involved, the party seeking discovery must do more than satisfy the general relevancy standard of Code of Civil Procedure section 2017.010: he or she must establish direct relevance. (Davis v. Superior Court, supra, 7 Cal.App.4th at p. 1017.) "Mere speculation as to the possibility that some portion of the records might be relevant to some substantive issue [including causation and petitioner's condition at the time of the accident] does not suffice." (Ibid.) In addition, even when the private information is found directly relevant to the issues of the litigation, discovery will only be allowed after a careful balancing of the compelling public need for discovery against the fundamental right of privacy. (Id. at p. 1014.)
As such, inquiry into Predmore's history of alcohol abuse and treatment, including participation in Alcoholics Anonymous, is prohibited unless Dunn can establish it is directly relevant to the issues in the litigation. Dunn admittedly had no evidence—no evidence from witnesses, officers at the scene or accident reports—that Predmore was intoxicated at the time of the accident. To the contrary, she based her purported right to discovery on a statement Predmore allegedly made to a third party that he was returning from a local VFW post at the time of the accident, Predmore's deposition testimony that he had not visited the VFW post, and speculation that, because VFW posts are known for providing inexpensive drinks to members, it would be likely that Predmore was intoxicated. Dunn's showing is insufficient to invade Predmore's right to privacy in his possible history of alcohol dependence and treatment.
In responding to the petition, Dunn asserts Predmore's claim that he had only been driving 20 miles per hour is inconsistent with the impact of the collision, which threw her 21 feet from the point of the collision, and this inconsistency coupled with the witness's statement that Predmore admitted coming from a VFW post warrants inquiry into Predmore's credibility and history of treatment for alcohol abuse. We have no record before us to support the facts Dunn is presently asserting, no indication that Dunn ever raised this argument below, and no evidence of any link between a driver's history of treatment for alcohol abuse and the impact of a collision.
Dunn also asserts Predmore tendered the issue by serving one set of requests for admissions asking Dunn to admit, among other things, that she had no evidence that Predmore (1) had consumed alcoholic beverages within 24 hours of the accident, (2) was driving under the influence at the time of the accident, and (3) had patronized the local VFW post on the date of the accident. Recognizing that the scope of any implicit waiver of constitutional rights must be narrowly construed (Davis v. Superior Court, supra, 7Cal.App.4th at p. 1014, citing Vinson v. Superior Court (1987) 43 Cal.3d 833, 842), that requests for admissions are not factual allegations, and that the discovery dispute was ongoing, we do not construe service of the requests for admission dated July 7—two months after the contentious deposition, two weeks after Predmore's counsel reaffirmed her privacy objections to Dunn's counsel, and four days after Dunn served the motion compelling answers to deposition questions on Predmore—to constitute a "tender" of the issue of Predmore's alcohol use or history.
Because the relevant facts are not in dispute, the law is well-settled, and Predmore's entitlement to relief is clear, we conclude a peremptory writ in the first instance is proper. (Code Civ. Proc., § 1088; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223, disapproved on another ground in Hassan v. Mercy American River Hosp. (2003) 31 Cal.4th 709, 724, fn. 4; Ng v. Superior Court (1992) 4 Cal.4th 29, 35.)
DISPOSITION
Let a peremptory writ of mandate issue directing the superior court to vacate its order granting the motion to compel answers to deposition questions and awarding sanctions and enter an order denying the motion. The stay issued on October 16, 2008, is vacated. Predmore is entitled to costs in the writ proceeding. This opinion is made final immediately as to this court. (Cal. Rules of Court, rule 8.264(b)(3).)
WE CONCUR: BENKE, Acting P. J., NARES, J.