Reliable Home Help Nurses v. Super. Ct.

Filed 8/22/07 Reliable Home Help Nurses v. Super. Ct. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL - FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

PROCEEDINGS in mandate after superior court denied a motion to compel. Michael B. Orfield, Judge. Petition granted.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2003, David Thompson drowned after his motorized wheelchair in which he was sitting rolled into his backyard pool. Thompson's family and estate (collectively heirs) filed a wrongful death action against Reliable Home Help Nurses Registry, Inc. (Reliable), the caretaker referred by Reliable, and others.

At some point, Reliable subpoenaed records from the physician who treated Thompson and his wife. The physician's records contained two reports by mental health counselor John Ward. In a May 2003 report, Ward stated Thompson had marital problems and "a history of suicidal ideation last year," diagnosed his condition with a major depressive disorder, and stated he was seeing counselor Audrey Phillips. In an April 2003 report, Ward described the wife's relationship with Thompson and his family as "extremely stressful for many years."

When Reliable attempted to depose Ward, the heirs moved for a protective order. On March 9, 2007, the court granted the protective order in part but, finding a limited waiver of the psychotherapist-patient privilege, ruled Ward could be deposed but restricted the inquiry to whether Thompson expressed any suggestion of suicidal intent between April and July 2003 when Ward was treating him.

On March 14, 2007, Reliable moved to compel responses to a special interrogatory it had previously served on the heirs asking for the names, addresses, and telephone numbers of all mental health professionals who saw Thompson within three years of his death (i.e., between September 2000 and September 2003). The court denied the motion at the April 20, 2007 argument, and confirmed its tentative ruling that the requested information was not relevant.

WRIT PROCEEDING

Reliable filed a petition for writ of mandate asserting the trial court abused its discretion by denying the motion to compel because the information sought is relevant to the subject matter of the litigation. The heirs responded with informal opposition and a request for sanctions. We issued an order to show cause, which provided that, unless they objected, the heirs' informal response would be deemed the return to the order to show cause, and designated a date for Reliable to reply.

The heirs subsequently filed a pleading labeled, "Objection To Deeming Informal Response As Return," in which they agreed to stipulate to vacate the April 20 ruling and to file a supplemental response to Reliable's interrogatory that identified the mental health professionals Thompson saw in the three-year period before his death; they contended the stipulation would allow us to dismiss the writ proceeding as moot and attached a proposed supplemental verified response identifying the two mental health professionals named in the treating physician's records (Ward and Phillips) as the only counselors who saw Thompson in the three years before his death. Alternative to the stipulation, the heirs requested that we issue the writ. Reliable followed with a letter strenuously objecting to the stipulation.

We discharged the order to show cause and issued a Palma notice. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.) We construe the heirs' stipulation and alternative request that we issue the writ as a concession that Reliable is entitled to writ relief. By conceding entitlement to relief, the heirs admit by necessary implication that the identity of treating mental health professionals three years before Thompson died may relate to the basis of Reliable's defense and thus may reasonably lead to the discovery of admissible evidence. Having reviewed the matter, we agree the identity of these health providers and their records for the three-year period are relevant and therefore discoverable.

Because the relevant facts are not in dispute, the law is well-settled, and the heirs concede entitlement to relief, 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 April 20, 2007 order denying the motion to compel and issue an order granting the motion. The stay issued by this court on July 31, 2007, is vacated. Reliable 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).)

McDONALD, J.

WE CONCUR:

HALLER, Acting P. J.

McINTYRE, J.

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