Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lee v. Superior Court of Orange County

September 21, 2009

RICHARD ALLEN LEE, PETITIONER,
v.
THE SUPERIOR COURT OF ORANGE COUNTY, RESPONDENT;
THE PEOPLE, REAL PARTY IN INTEREST. [AND FOUR OTHER CASES.*FN1]



Original proceedings; petitions for writs of prohibition/mandate to challenge orders of the Superior Court of Orange County, Robert R. Fitzgerald, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Petitions granted and remanded with directions. (Super. Ct. Nos. M10639 & M11412).

The opinion of the court was delivered by: Fybel, J.

CERTIFIED FOR PUBLICATION

OPINION

INTRODUCTION

The Orange County District Attorney‟s Office (the district attorney) initiated separate proceedings against Richard Allen Lee, John Patrick Semeneck, Ross William Rabuck, Jr., Robert Eldred Morehead, and William Sabatasso (collectively, defendants) by filing a petition against each defendant seeking his civil commitment as a sexually violent predator (SVP) under the Sexually Violent Predator Act (Welf. & Inst. Code, § 6600 et seq.) (SVPA). (All further statutory references are to the Welfare and Institutions Code unless otherwise specified.) The trial court denied defendants‟ respective (and essentially identical) motions to quash subpoenas duces tecum issued by the district attorney to Coalinga State Hospital (CSH), the California Men‟s Colony, and the "Health Records Center." The subpoenas sought a wide range of information including medical and psychological records, trust account information, and visitor logs.

Each defendant filed a petition for writ of prohibition/mandate in this court, arguing the trial court (1) exceeded its jurisdiction in ordering compliance with the subpoenas because they "lack[ed] affidavits showing specific facts justifying discovery as required by Code of Civil Procedure, section 1985"; (2) erred by ordering CSH to comply with future subpoenas duces tecum; (3) exceeded its jurisdiction by relieving CSH‟s medical staff of confidentiality obligations under the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. § 1320d et seq.) (HIPAA); and (4) erred by denying defendants‟ requests to review in camera documents produced pursuant to the subpoenas for privilege, prior to disclosure to the district attorney. We consolidated all five of defendants‟ petitions.

We grant defendants‟ petitions. Code of Civil Procedure section 1985, subdivision (b) requires that a subpoena duces tecum be served with an affidavit "setting forth in full detail the materiality" of the items sought by the subpoena. In McClatchy Newspapers v. Superior Court (1945) 26 Cal.2d 386, 396, the California Supreme Court expressed the now decades-old legal principle that such an affidavit cannot consist of reliance "merely upon the legal conclusion, stated in general terms, that the desired documentary evidence is relevant and material."

The subpoenas duces tecum are ineffective because each failed to include a declaration containing a sufficient statement of materiality as required by Code of Civil Procedure section 1985, subdivision (b). Thus, the trial court erred by ordering CSH to comply with the issued subpoenas and with unspecified "future subpoena[s]" containing similar subject matters, and we will order the issuance of writs of mandate vacating those orders. We therefore do not need to decide whether the trial court erred by denying defendants‟ motions seeking to review subpoenaed documents in camera for privilege before their disclosure to the district attorney.

The district attorney "may obtain access to otherwise confidential treatment information" concerning an alleged SVP to the extent any such information is contained in an updated mental evaluation conducted under section 6603, subdivision (c). (Albertson v. Superior Court (2001) 25 Cal.4th 796, 807 (Albertson).) Hence, the district attorney was entitled to a court order releasing CSH‟s medical staff from obligations under HIPAA to maintain the confidentiality of defendants‟ medical and psychological records as provided under section 6603, subdivision (c). Because the court‟s orders releasing CSH‟s medical staff from their confidentiality obligations under HIPAA are too broad, we order the issuance of writs of mandate vacating the trial court‟s orders pertaining to HIPAA and remand these matters to the trial court with directions to issue a tailored order in each case in accordance with section 6603, subdivision (c).

BACKGROUND

I. PETITIONS FOR RECOMMITMENT AGAINST DEFENDANTS

In July 2005, the district attorney filed a petition against Lee for recommitment as an SVP. In July 2007, the district attorney filed a fourth petition against Lee for recommitment as an SVP. The petition alleged Lee was "presently an inmate at Coalinga State Hospital" and "his current commitment expires 8/26/07."

In February 2003, the district attorney filed a petition to extend commitment as an SVP against Semeneck. The petition alleged he was "an SVP committee at Atascadero State Hospital" with a commitment release date of March 22, 2003.

In October 2004, the district attorney filed a petition against Rabuck for recommitment as an SVP, which alleged he was "presently an SVP committee at Atascadero State Hospital" and had a commitment expiration date of October 30, 2004.

In January 2005, the district attorney filed a petition against Morehead for commitment as an SVP, and alleged he was, at the time of filing, an inmate at the California Department of Corrections and Rehabilitation with a parole date of February 14, 2005.

In March 2007, the district attorney filed a petition against Sabatasso for commitment as an SVP, and alleged he was "presently an inmate at the California Men‟s Colony (CMC) East in San Luis Obispo."

II. THE DISTRICT ATTORNEY FILES NOTICES OF REQUEST FOR RELEASE OF MEDICAL RECORDS

In each case, the district attorney filed a notice of request for release of medical records stating that it "will move the court for an order regarding medical/hospital/prison records" of defendant. In the supporting memorandum of points and authorities attached to each notice, the district attorney argued HIPAA impacted the district attorney‟s ability to obtain medical records for use in judicial proceedings. The district attorney further stated, "[t]he medical records are material and relevant because mental state is in direct issue in the pending proceeding. The prosecution is entitled to obtain those records because the public interest in protecting the health and safety of others outweighs the privacy interest of the patient in such records. [The patient‟s] medical records in the custody of the treater or facility named in the order will disclose material information regarding [the patient‟s] mental condition and are therefore of substantial value in the judicial proceedings. [The patient‟s] medical records... are necessary in the adjudication of the underlying petition." In each case, the district attorney requested a protective order.

III. THE DISTRICT ATTORNEY FILES MOTIONS FOR THE RELEASE OF RECORDS BY CSH

Citing section 6603, subdivision (c), in each case, the district attorney filed a motion for the release of records in which it sought an order requiring CSH "to release all records in their possession including medical records relevant to the determination of [defendant]‟s status as a sexually violent predator. Included[,] but not limited to[], trust account records, visitation logs, package regarding [defendant]."

IV. THE DISTRICT ATTORNEY FILES PROPOSED COURT ORDERS SEEKING ENFORCEMENT OF SUBPOENAS DUCES TECUM

In each defendant‟s case, the district attorney also issued four subpoenas duces tecum seeking the production of documents related to defendant and prepared proposed orders directing compliance with those subpoenas. We next describe each of those four subpoenas.

A. Subpoenas Directed to CSH Seeking Defendants' Medical Records

The district attorney issued civil subpoenas duces tecum directed to CSH, seeking the production of "[a]ny and all records relating to the treatment, diagnosis and evaluation" of each defendant, "including but not limited to any medical reports, evaluations, diagnosis, surgery, recovery, court reports, forensic reports, 90-day treatment plans, psychological reports, any and all notes, including but not limited to progress notes, psychiatric reports, social history reports, interdisciplinary records and notes, psychiatric technician notes, admission reports, discharge reports, written relapse prevention plan, and all psychological testing performed by or for your facility with contact information for the person(s) who conducted the testing."

The subpoenas were supported by declarations signed by the district attorney, which stated the requested documents were material to the issues involved in the cases and good cause existed for the production of the requested documents in order "[t]o assist in fair and effective presentation at trial of this matter."

B. Subpoenas Directed to CSH Seeking Nonmedical Information Regarding Defendants, Including Trust Account Information and Visitor Logs

The district attorney issued a second civil subpoena duces tecum to CSH in each case, seeking production of "[v]isitor logs; activity logs; physical therapy session logs; patient arrival and departure logs; disciplinary records; mail arrival and departure logs; patient property requests; incoming patient property inventories; Cancel Package Waiver Forms; computer printout record of all financial transactions with respect to [defendant]‟s trust account; all deposit and withdrawal slips related to [defendant]‟s trust account at Coalinga State Hospital."

The declaration in support of each subpoena stated: "Good cause exists for the production of the [requested] documents... for the following reasons: [¶] To prove that [defendant] is a sexually violent predator as described in Section 6600[, subdivision ](a) of the Welfare and Institutions Code. The above documentation is needed to assess any statements made by [defendant] to CSH personnel that may reflect on his credibility, current mental status, diagnosis, and likelihood to recidivate sexually." The declaration further stated the requested documents were material to the issues involved in the case "[t]o prove that [defendant] is a sexually violent predator as described in Section 6600[, subdivision ](a) of the Welfare and Institutions Code. The above documentation is needed to assess any statements made by [defendant] to CSH personnel that may reflect on his credibility, current mental status, diagnosis, and likelihood to recidivate sexually."

C. Subpoenas Directed to the California Men's Colony

The district attorney also issued civil subpoenas duces tecum to the California Men‟s Colony, through which the district attorney sought the production of records pertaining to each defendant "while in custody or on parole under the jurisdiction of the California Department of Corrections and all documents forwarded to the CDC pertaining to [defendant] during that time period which remain in its possession." Each subpoena further stated the requested documents included defendant‟s ""C‟ file, parole reports, chronological reports, disciplinary reports, legal reports, and BPH section."

Each subpoena stated: "Good cause exists for the production of the documents or other things described... for the following reasons: [¶] To prove that [defendant] remains a sexually violent predator as described in Section 6600[, subdivision ](a) of the Welfare and Institutions Code." Each subpoena also stated: "These documents or other things described... are material to the issues involved in this case for the following reasons: [¶] To prove that [defendant] remains a sexually violent predator as described in Section 6600[, subdivision ](a) of the Welfare and Institutions Code."

D. Subpoenas Directed to the Custodian of Records of the Health Records Center in Sacramento

The district attorney issued civil subpoenas duces tecum to the custodian of records of the Health Records Center in Sacramento, which sought production of any and all medical records of each defendant "while in custody or on parole under the jurisdiction of the California Department of Corrections and all medical records forwarded to the CDC pertaining to [defendant] during that time period which remain in its possession." The subpoenas further stated the request included each defendant‟s ""M‟ File, parole outpatient clinic records, psychological reports, psychiatric reports, medications and housing."

The subpoenas were supported by declarations stating: "Good cause exists for the production of the documents or other things... for the following reasons: [¶] To assist in fair and effective presentation at trial of this matter" and "[t]hese documents or other things... are material to the issues involved in this case for the following reasons: [¶] To assist in fair and effective presentation at trial of this matter."

V. DEFENDANTS MOVE TO QUASH CSH SUBPOENAS SEEKING NONMEDICAL RECORDS.

Each defendant filed a motion to quash the subpoenas directed to CSH demanding the production of nonmedical records, arguing the subpoenas were ineffective because they lacked specificity as to the materiality of the requested documents and as to the district attorney‟s good cause for requesting them. All but Semeneck‟s motion also argued the district attorney‟s request that the court issue an order relieving all CSH medical staff of their obligations under HIPAA was improper. Semeneck asserted this latter argument in his response to the district attorney‟s reply brief; the district attorney does not contend Semeneck has waived this argument by failing to assert it in his moving papers.

VI. ORDERS

The trial court denied defendants‟ motions to quash the subpoenas, granted the district attorney‟s motion to relieve CSH medical staff from confidentiality obligations under HIPAA relating to defendants, and granted the district attorney‟s request to enter the requested orders seeking the subpoenaed information as follows.

A. Orders Directed to CSH for Release of Medical Records

The trial court signed the following order in Lee‟s, Rabuck‟s, Morehead‟s, and Sabatasso‟s cases as to the CSH subpoenas seeking medical records: "[I]t is HEREBY ORDERED: [¶] A) that Coalinga State Hospital: [¶] 1) provide the documents identified in the Subpoena Duces Tecum attached as an exhibit to this order and incorporated herein by reference, by producing duplicate copies of all materials requested in the attached subpoena and providing them in the manner set forth therein by no later than the date set forth therein; [¶] 2) produce and provide all medical records of [defendant] requested in any future Subpoena Duces Tecum issued during the pendency of the current petition, and further, [¶] 3) permit doctors appointed by the Court to examine any and all medical records, charts, files, documents or notes related to the above named [defendant]. [¶] B) That all treating medical staff, physicians, and psychiatrists be released from any obligation under HIPAA and be allowed to speak to [the district attorney] regarding [defendant]. [¶] This is a continuing order and shall remain in effect until terminated by the Court. This order is issued in compliance with the provisions of HIPAA (45 CFR [§] 164.512(e)). Personal service of this Court Order is not required."

The court signed a substantively similar order in Semeneck‟s case, stating: "[I]t is HEREBY ORDERED: [¶] A) that Coalinga State Hospital: [¶] 1) provide the documents identified in the Subpoena Duces Tecum attached as an exhibit to this order and incorporated herein by reference, by producing duplicate copies of all materials requested in the attached subpoena and providing them in the manner set forth therein by no later than the date set forth therein; [¶] 2) produce and provide all medical records of [defendant] requested in any future Subpoena Duces Tecum issued during the pendency of the current petition, and further, [¶] 3) permit doctors appointed by the Court or either Counsel, to examine any and all medical records, charts, files, documents or notes related to [defendant]. [¶] B) That all treating medical staff, physicians, psychiatrists be released from any obligation under HIP[A]A and allowed to speak to [the district attorney] regarding [defendant]‟s psychiatric, psychological, medical, testing, condition, evaluation, diagnosis, treatment and observations of the [aforementioned]. [¶] This is a continuing order and shall remain in effect until terminated by the Court. This order is issued in compliance with the provisions of HIP[A]A (45 CFR [§] 164.512(e)). Personal service of this Court Order is not required."

B. Orders Directed to CSH for Release of Nonmedical Records

The trial court signed the district attorney‟s proposed order in each case, regarding the CSH subpoenas seeking nonmedical information, stating: "[I]t is HEREBY ORDERED that Coalinga State Hospital: [¶] 1) produce and provide visitor logs relating to [defendant] in any future Subpoena Duces Tecum issued during the pendency of the current petition, and further, [¶] 2) produce and provide all trust account printouts and logs relating to [defendant] in any future Subpoena Duces Tecum issued during the pendency of the current petition including deposit and withdraw[al] slips. [¶] 3) patient arrival and departure logs; phone [r]ecords; disciplinary records; mail arrival and departure logs; patient property requests; incoming patient property ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.