Maclovio v. Brewer

• Court: United States Bankruptcy Court, E.D. California
• Decided: August 3, 2020
• Docket: 19-01103
• Status: Unknown

Opinion

UNITED STATES BANKRUPTCY COURT 1 EASTERN DISTRICT OF CALIFORNIA 2 FRESNO DIVISION 3 4 In re ) Case No. 19-13048-B-7 ) 5 CRAIG ALAN BREWER, ) ) 6 Debtor. ) ) 7 ) ) 8 JOSE MACLOVIO, ) Adv. Proceeding No. 19-1103-B ) 9 ) Plaintiff, ) DC No. MB-1 10 ) v. ) 11 ) Date: July 29, 2020 ) Time: 11:00 a.m. 12 CRAIG ALAN BREWER, ) Department B, Judge Lastreto ) Fifth Floor, Courtroom 13 13 Defendant. ) ) 2500 Tulare Street, Fresno, CA 14 ) ) 15 ) 16 17 RULING ON DEFENDANT’S MOTION TO QUASH PLAINTIFF’S SUBPOENA 18 19 INTRODUCTION 20 Defendant-debtor Craig Brewer (“Defendant”) asks this court 21 for an order quashing plaintiff-creditor Jose Maclovio’s 22 (“Plaintiff”) subpoena directed to Community Regional Medical 23 Center (“CRMC”) seeking medical records of Defendant. Doc. #36. 24 Defendant opposes, arguing that this subpoena violates an 25 agreement Plaintiff made in the underlying state court 26 litigation (“USCL”) determining damages Plaintiff suffered from 27 personal injury resulting from a car wreck. Defendant did not 28 contest liability at trial. That litigation went to trial and a 1 final judgment was entered in favor of Plaintiff. This adversary 2 proceeding seeks to make that judgment non-dischargeable under 3 11 U.S.C. § 523(a)(9). Doc. #1. 4 After considering all of the arguments and the record here, 5 the court finds that judicial estoppel precludes enforcement of 6 the subpoena. The court alternatively finds based on this 7 record that Defendant’s privacy interests outweigh Plaintiff’s 8 need for the information. The court will GRANT the motion. 9 10 PERTINENT FACTS 11 In June 2015, a car that Defendant was driving crashed into 12 a van. One of the van passengers was Plaintiff. Plaintiff 13 sustained serious injuries which has left him a partial 14 paraplegic. Defendant was also injured. 15 Plaintiff and Defendant were hospitalized at CRMC after the 16 collision. The California Highway Patrol accident report stated, 17 in part, that Defendant had not been drinking. But Plaintiff’s 18 medical records from CRMC suggest defendant was intoxicated when 19 the accident happened. 20 Plaintiff filed his complaint in the USCL on April 20, 21 2017. During discovery in the UCSL, the parties signed a 22 stipulation in May 2018 (over a year before this bankruptcy case 23 was filed) as follows: 24 1) Defendant Craig Brewer withdraws each and every 25 affirmative defense alleging that Plaintiff Jose 26 Maclovio, or any other person or entity, was 27 comparatively negligent; 28 1 2) Defendant Craig Brewer, and his attorneys, will not 2 attempt to introduce evidence or make any argument that Plaintiff Jose Maclovio, or any other person or entity, 3 was negligent. This includes but is not limited to any 4 evidence or argument that Plaintiff Jose Maclovio was not wearing a seat belt; 5

6 3) The verdict form will not include a question asking the jury to assign a percentage of responsibility to 7 Plaintiff Jose Maclovio, or any other person or entity, 8 and;

9 4) In reliance on the foregoing, Plaintiff Jose Maclovio, and his attorneys, will immediately withdraw the pending 10 subpoena to Community Regional Medical Center that seeks 11 production of Defendant Craig Brewer's medical records.

12 13 Doc. #39; see doc. #40, exh. 7. The court notes that exhibit 7 14 does not contain those terms – it simply states that Defendant 15 was involved in a motor vehicle collision with the plaintiff, 16 and that the collision occurred because Defendant Craig Brewer 17 was negligent. 18 The stipulation resulted in Defendant waiving any argument 19 or claim that the driver of the van was negligent or there was 20 any negligence on the part of the Plaintiff. Before the 21 stipulation, defendant contended in the UCSL that Plaintiff did 22 not wear a seat belt and thus contributed to his injuries. 23 Plaintiff argued in this motion that the stipulation eliminated 24 Plaintiff’s need for extensive (and expensive) expert testimony 25 on the issue of fault. Also, Defendant avoided the risk of a 26 large punitive damage judgment. 27 This case involved the too frequent scenario of 28 catastrophic injuries but little insurance. At oral argument on 1 this motion, Defendant’s counsel represented that the insurance 2 coverage was in the mid five figures. 3 Fourteen (14) months after the stipulation was signed, this 4 bankruptcy case was filed. This adversary proceeding was filed 5 on October 2, 2019 — several months before the trial in the 6 UCSL. Plaintiff here alleges one claim for relief: the debt owed 7 Plaintiff arising out of the accident should be non- 8 dischargeable because defendant was unlawfully intoxicated at 9 the time of accident. 11 U.S.C. § 523(a)(9). Since Defendant 10 stipulated to liability in the USCL, the only factual issue in 11 this adversary proceeding would be whether Defendant was 12 intoxicated when driving the car that plowed into the van. The 13 court granted stay relief so the USCL could proceed to 14 conclusion. Doc. #20, 25 in main case. 15 Paragraph 14 of the complaint alleges: “Medical records 16 from Fresno Community Regional Medical Center, where Debtor was 17 transported after the Collision, indicate that Debtor was 18 intoxicated at the time of the Collision.” Evidently because of 19 that allegation, Defendant filed a motion in USCL to compel 20 Plaintiff to comply with the stipulation. The motion was heard 21 shortly before trial in the USCL. In responding to that motion, 22 Plaintiff told the state court he withdrew the subpoena. At the 23 hearing, the trial judge stated that the motion to compel would 24 be denied since the Plaintiff had performed under the 25 stipulation. Doc. #50 p. 18 et seq. 26 The USCL went to trial. A jury returned a verdict for 27 damages in favor of Plaintiff for $21,513,000. Judgment was 28 1 entered in the USCL on March 3, 2020. Apart from the judgment, 2 Defendant’s unsecured debts total $16,342.00. 3 Plaintiff then issued a subpoena directed to CRMC in the 4 adversary proceeding — nearly identical to the one previously 5 withdrawn in the USCL — seeking Defendant’s medical records 6 dealing with the accident. This motion to quash followed. 7 Plaintiff timely opposed (doc. #45) and Defendant timely replied 8 (doc. #48). 9 10 JURISDICTION 11 The United States District Court for the Eastern District 12 of California has jurisdiction of this adversary proceeding 13 under 28 U.S.C. § 1334(b) because this is a civil proceeding 14 arising under title 11 of the United States Code. The district 15 court referred this matter to this court under 28 U.S.C. § 16 157(a). The adversary proceeding is a “core” matter under 28 17 U.S.C. § 157(b)(2)(I). Fed. R. Civ. P. 45 applies in cases under 18 the bankruptcy code. Fed. R. Bankr. P. 9016. 19 20 ANALYSIS 21 1. The court has discretion in determining discovery disputes. 22 “Broad discretion is vested in the trial court to permit or 23 deny discovery, and its decision to deny discovery will not be 24 disturbed except upon the clearest showing that denial of 25 discovery results in actual and substantial prejudice to the 26 complaining litigant.” Hallett v. Morgan, 296 F.3d 732, 751 (9th 27 Cir. 2002) (citing Goehring v. Brophy, 94 F.3d 1294, 1305 (9th 28 1 Cir. 1996) (quoting Sablan v. Dept of Fin., 856 F.2d 1317, 1321 2 (9th Cir. 1988))). 3 Defendant raises equitable arguments to support the motion. 4 Plaintiff responds with equitable arguments of his own. The 5 court will first examine the equitable “defenses” raised by 6 Defendant and will also look at the effect of Defendant’s claim 7 to a right of privacy. 8 9 2. Judicial Estoppel bars enforcement of Plaintiff’s current 10 subpoena directed to CRMC. 11 Judicial estoppel is an equitable doctrine meant “to 12 protect the integrity of the judicial process by prohibiting 13 parties from deliberately changing positions according to the 14 exigencies of the moment.” New Hampshire v. Maine, 532 U.S. 742, 15 749-50, (2001) (citation omitted). Federal law governs the 16 application of judicial estoppel in federal courts. Milton H. 17 Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983, 992 18 (9th Cir. 2012). 19 Application of judicial estoppel is discretionary with the 20 court. Atalanta Corp. v. Allen (In re Allen), 300 F.3d. 1055, 21 1060 (9th Cir. 2002). It is applied on a case-by-case basis. See 22 Ah Quin v. Cty of Kauai DOT, 733 F.3d 267, 272 n.3 (9th Cir. 23 2013). A court is not “bound” to apply judicial estoppel, 24 particularly when “a party’s prior position was based on 25 inadvertence or mistake.” Ah Quin, 733 F.3d at 271 quoting New 26 Hampshire, 532 U.S. at 753. 27 Courts “invoke[] judicial estoppel not only to prevent a 28 party from gaining an advantage by taking inconsistent 1 positions, but also because of ‘general considerations of the 2 orderly administration of justice and regard for the dignity of 3 judicial proceedings,’ and to ‘protect against a litigant 4 playing fast and loose with the courts.’” Hamilton v. State Farm 5 Fire & Cas. Co., 270 F.3d 778, 782 (9th Cir. 2001). “The 6 application of judicial estoppel is not limited to bar the 7 assertion of inconsistent positions in the same litigation, but 8 is also appropriate to bar litigants from making incompatible 9 statements in two different cases.” Id. at 783. 10 The Supreme Court has provided three factors for a court to 11 consider in determining whether judicial estoppel is applicable 12 in a given case: 13 1) a party’s later position must be ‘clearly inconsistent’ 14 with its earlier position. 15 2) whether the party has succeeded in persuading a court to 16 accept that party’s earlier position, so that judicial 17 acceptance of an inconsistent position in a later proceeding would create “the perception that either the 18 first or second court was misled,” and; 19 3) whether the party seeking to assert an inconsistent 20 position would derive an unfair advantage or impose an 21 unfair detriment to the opposing party if not estopped.

22 23 New Hampshire v. Maine, 532 U.S. 742, 750-51 (2001). 24 First, Plaintiff’s position here is “clearly inconsistent” 25 with his earlier position. Plaintiff alleged in this adversary 26 proceeding that “medical records” from CRMC “indicate Debtor was 27 intoxicated at the time of the collision.” Doc. #1, ¶14. This 28 prompted a motion to compel compliance with the stipulation in 1 USCL. The state court denied Defendant’s motion to compel 2 compliance with the stipulation because Plaintiff told the court 3 that he had withdrawn the subpoena. Agreeing not to pursue the 4 Defendant’s medical records in a state court trial while this 5 adversary proceeding was pending, and then pursuing the medical 6 records post-state-court-judgment in this adversary proceeding, 7 is clearly inconsistent. Plaintiff told the trial judge the 8 subpoena was withdrawn after this adversary proceeding was filed 9 and pending. The state court trial judge denied the motion 10 because Plaintiff re-iterated the continued validity of the 11 earlier withdrawal of the subpoena. In this factual context, 12 that is a significant change in position. 13 Plaintiff urges that his position is not inconsistent even 14 though the subject matter of the subpoenas is the same since the 15 issues in USCL and this adversary proceeding are different. 16 Since Defendant agreed not to contest liability in the USCL, 17 Plaintiff argues, there was no need for the subpoena, so it was 18 withdrawn. But now, says Plaintiff, litigating the 19 dischargeability issue under § 523(a)(9) requires proof of 20 intoxication which became irrelevant in USCL. 21 Plaintiff’s position ignores a basic fact: his position on 22 the production of medical records is inconsistent in both 23 actions. His reasons for seeking the records in USCL is not 24 germane. Plaintiff provides no authority that judicial estoppel 25 only applies if the issues in both litigations are the same. 26 Judicial estoppel is intended to protect the courts, not the 27 litigants. Ah Quin, 733 F.3d at 275 quoting Ryan Operations G.P. 28 v. Santiam-Midwest Lumber Co., 81 F.3d 355, 360 (3rd Cir. 1996). 1 Judicial estoppel is even more appropriate where the 2 incompatible statements are made in two different cases, since 3 “‘inconsistent positions in different suits are much harder to 4 justify’ than inconsistent pleadings within one suit.” Hamilton, 5 270 F.3d at 783 quoting Astor Chauffeured Limousine Co. v. 6 Runnfeldt Inv. Corp., 910 F.2d 1540, 1548 (7th Cir. 1990). In 7 short, the change in issue focus in the two litigations is 8 “party centric.” The judicial estoppel doctrine does not protect 9 a party’s litigation choices. 10 Second, Plaintiff succeeded in persuading the Madera County 11 Superior Court to accept his earlier position (denying the 12 motion because Plaintiff told the judge he withdrew the subpoena 13 and would not go after the records), which would create “the 14 perception that either the first or second court was misled.” If 15 Plaintiff harbored an unstated intention to take a conflicting 16 position in the bankruptcy court, then the state court was 17 misled. If there was no intention, then the state court was not 18 misled but to protect the integrity of the courts, the Plaintiff 19 is judicially estopped here. 20 Third, Plaintiff, as the party seeking to assert an 21 inconsistent position, would impose an unfair detriment to 22 Defendant if not estopped. Defendant gave up a potential cross- 23 complaint and comparative negligence defenses in relying upon 24 the stipulation entered in to by the parties. Allowing Plaintiff 25 to subpoena the same medical records would unfairly prejudice 26 Defendant since Defendant stipulated to liability and agreed not 27 to assert comparative negligence claims against the van driver 28 1 and Plaintiff in return for Plaintiff’s performance under the 2 stipulation. 3 There is nothing in the record establishing that Plaintiff 4 inadvertently agreed to the stipulation or mistakenly told the 5 state court that Plaintiff had withdrawn the subpoena. The 6 stipulation was signed over one year before the bankruptcy case 7 was filed. It is probable Plaintiff had no expectation then that 8 Defendant would file a bankruptcy case. That said, when the 9 representation was made to the state court earlier this year, 10 the situation was much different. The bankruptcy was filed. This 11 adversary proceeding had been pending for months. It is beyond 12 reason to conclude at that late date, a new subpoena seeking the 13 same medical records was forthcoming in this case that would 14 result in detriment to defendant. 15 Judicial estoppel is applicable. 16 17 3. Equitable estoppel does not apply. 18 Equitable estoppel arises from declarations or conduct of 19 the party estopped. California Evidence Code § 623 provides, 20 “[w]henever a party has, by his own statement or conduct, 21 intentionally and deliberately led another to believe a 22 particular thing true and to act upon such belief, he is not, in 23 any litigation arising out of such statement or conduct, 24 permitted to contradict it.” See also, Wilk v. Vencill, 30 Cal. 25 2d 104, 107 (1947); Calistoga Nat’l Bank v. Calistoga Vineyard 26 Co., 7 Cal. App. 2d 65, 72 (1935); Klein v. Fanner, 85 Cal. App. 27 2d 545, 552 (1948). 28 1 Equitable estoppel requires proof of the following 2 elements:

3 1) that the party to be estopped must be apprised of the 4 facts;

5 2) he must intend that his conduct will be acted upon, or 6 act in such a manner that the party asserting the estoppel could reasonably believe that he intended his 7 conduct to be acted upon; 8 3) the party asserting the estoppel must be ignorant of the 9 true state of the facts; and

10 4) he must rely upon the conduct to his injury. 11 12 Domarad v. Fisher & Burke, 270 Cal.App.2d 543, 555 (1969) 13 (citation omitted) (these elements differ from the elements 14 outlined in Defendant’s memorandum, despite citing the same case 15 and page). See also, Murphy v. Hood, 276 F.3d 475, 477 (9th Cir. 16 2001) quoting Lehman v. U.S., 154 F.3d 1010, 1016 (9th Cir. 17 1998). 18 Actual fraudulent intent is unnecessary to show an 19 estoppel. Crestline Mobile Homes Mfg. Co. v. Pac. Fin. Corp., 54 20 Cal. 2d 773, 77-79 (1960) (“Negligence that is careless and 21 culpable conduct is, as a matter of law, equivalent to an intent 22 to deceive and will satisfy the element of fraud necessary to an 23 estoppel”). Equitable estoppel may be proven by reasonable 24 inferences drawn from the evidence. Blix St. Records, Inc. v. 25 Cassidy, 191 Cal. App. 4th 39, 49 (2010). 26 Plaintiff opposes on these grounds because he did not “have 27 a secret plan in May 2018 to issue a subpoena in the bankruptcy 28 action that Brewer did not file until July 2019.” Doc. #45, 46. 1 The court finds that Plaintiff is not equitably estopped. 2 There is no record to show that “the party to be estopped,” 3 Plaintiff, is “apprised of the facts.” When the stipulation was 4 entered into, the bankruptcy was over one year away. So, at the 5 time of the stipulation, Plaintiff did not know the “true facts” 6 that despite the stipulation it would issue a contravening 7 subpoena in the federal action. 8 The second element is not met. For the same reasons, 9 Plaintiff could not have intended his actions to be relied upon 10 in connection with issuing a new identical subpoena in a federal 11 dischargeability case. 12 The third element may or may not have been met – Did 13 defendant know he was going to file bankruptcy in May 2018? If 14 known, a differently worded stipulation would be before us. But, 15 Defendant’s knowledge nearly a year before the petition was 16 filed seems unlikely. If bankruptcy were not contemplated then, 17 Defendant would have no facts that were unknown to him but known 18 to Plaintiff on the issue. 19 The fourth element is met. The benefits and burdens under 20 the stipulation were assessed by both parties when the 21 stipulation was signed. Both parties allegedly gave up certain 22 potential remedies, awards of damages and defenses in the 23 stipulation. The court must also reiterate that the stipulation 24 which is part of the attached exhibits does not explicitly 25 contain the information Defendant consistently alleges in the 26 motion. 27 /// 28 /// 1 4. Breach of Contract/Specific Performance is not persuasive. 2 Defendant alternatively argues this court should 3 specifically enforce the stipulation. The court disagrees. 4 The stipulation has not been breached under common contract 5 law. The stipulation was signed before the bankruptcy case began 6 – over a year before. There is no substantial evidence (only a 7 single allegation in the declaration of Vladimir F. Kozina, doc. 8 #39, ¶14) to prove that the stipulation signed in the USCL was 9 intended to extend to a bankruptcy case that would not be filed 10 for over a year later. 11 Because “a contract may be explained by reference to the 12 circumstances under which it was made and the matter to which it 13 relates” and “the paramount rule governing the interpretation of 14 contracts is to give effect to the mutual intention of the 15 parties as it existed at the time of contracting,” if anything 16 the common law would support denial of the motion, for the 17 reasons stated above. Defendant’s motion accurately states that 18 “Mr. Brewer’s protection against the risk of an award of 19 punitive damages . . . would be meaningless if he were 20 nevertheless exposed to a massive judgment which was not 21 dischargeable in bankruptcy . . . .” So too would Plaintiff’s 22 judgment be meaningless if it were dischargeable in bankruptcy. 23 Doc. #36. 24 But other problems face the defendant under this theory. 25 Contracts that contain terms that are not sufficiently certain 26 to make the precise act which is to be done clearly 27 ascertainable cannot be specifically enforced. Cal. Civ. Code § 28 1 3390(e). The stipulation does not contemplate that it is 2 applicable in a bankruptcy proceeding. 3 The court is unpersuaded that the “totality of the 4 circumstances” would imply the extension of the May 2018 5 stipulation to this action to support specific enforcement. 6 Neither the relatively low liability insurance limits applicable 7 nor the consideration given by defendant under the stipulation 8 change the result. True enough, the defendant agreed to and did 9 refrain from asserting claims and defenses. What was the agreed 10 counter-performance of the plaintiff? Was it to extend to any 11 future litigation? The record does not support that. 12 Specific enforcement is not established. 13 14 5. The state court verdict and judgment are not res judicata 15 (claim preclusion) on the issue of intoxication. 16 As a general matter under the doctrine of claim preclusion, 17 a final judgment on the merits bars parties or 18 parties in privity from “‘successive litigation of the very 19 same claim . . . as the earlier [action].’” Guerrero v. Dep't of 20 Corr. & Rehab., 28 Cal. App. 5th 1091, 1098 (2018) (citing 21 Taylor v. Sturgell, 553 U.S. 880, 892 (2008)). The driving 22 principle behind the claim preclusion doctrine is that the 23 parties have had a “‘full and fair opportunity to 24 litigate’” claims alleged in the first action. Guerrero, 28 Cal. 25 App. 5th at 1098 (citation omitted). 26 However, res judicata is not always automatically 27 applicable in bankruptcy proceedings. Brown v. Felsen, 442 U.S. 28 127, 131-33 (1979). The Supreme Court explained,”[r]es judicata 1 prevents litigation of all grounds for, or defenses to, recovery 2 that were previously available to the parties, regardless of 3 whether they were asserted or determined in the prior 4 proceeding.” Id. at 131. The court held “that the bankruptcy 5 court is not confined to a review of the judgment and record in 6 the prior state-court proceedings when considering the 7 dischargeability” of defendant’s debt. Id. at 138. 8 The argument made in Brown is somewhat similar here. The 9 respondent in that case argued that because the petitioner chose 10 not to press the question of fraud in the state-court proceeding 11 and did not obtain a stipulation concerning fraud therein, he 12 was “barred from litigating matters that could have been 13 concluded” in the consent judgment. The Supreme Court noted 14 though that res judicata “blockades unexplored paths that may 15 lead to truth” and shields the “fraud and the cheat as well as 16 the honest person” and should only be invoked “after careful 17 inquiry.” Id. at 312. Like the court in Brown, this court finds 18 that the interests served by res judicata, the process of 19 orderly adjudication in state courts, nor bankruptcy policies 20 would be well served by quashing the subpoena. 21 The bankruptcy code is explicit in not discharging debts 22 arising from damages caused by motor vehicle collisions 23 involving intoxicated drivers. That is an issue “congress 24 intended that the bankruptcy court would resolve.” Id. at 138. 25 Archer v. Warner, 538 U.S. 314 (2003) further supports 26 this. Archer reaffirmed Brown. In Archer, the Supreme Court 27 rejected the “novation” theory of settlements. Id. at 319. The 28 Archer court held essentially that settling a state court claim 1 for fraud, but without expressly mentioning fraud in the 2 settlement, does not convert the debt into a dischargeable 3 contract debt. The bankruptcy court has the authority and 4 jurisdiction to “weigh all the evidence” and “should look behind 5 the stipulation to determine whether it reflected settlement of 6 a valid claim for fraud.” Archer, 538 U.S. at 320. Brown and 7 Archer supports this court in examining issues not litigated at 8 the state court level to determine the dischargeability of this 9 action under § 523(a)(9). Res judicata is not applicable in this 10 instance. 11 That is not to say that res judicata is never applicable in 12 bankruptcy courts. But the bankruptcy court has broad discretion 13 in examining evidence to make decisions that are only within the 14 bankruptcy court’s jurisdiction, that is, whether a debt is 15 dischargeable under the bankruptcy code. 16 We also cannot ignore that the bankruptcy court has 17 exclusive jurisdiction to determine dischargeability of debts. 18 “It is settled that a nondischargeability claim is an 19 independent federal claim as to which the effect of a prior 20 state court judgment is governed by principles of preclusion.” 21 Lopez v. Emergency Serv. Restoration, Inc. (In re Lopez), 367 22 B.R. 99, 103 (9th Cir. BAP 2007) (citing Grogan v. Garner, 498 23 U.S. 279, 284 n. 11 (1991) (holding issue preclusion may apply 24 in a dischargeability action)). See Restatement (Second) of 25 Judgments § 28(3). 26 This case is not dissimilar to litigation in which a 27 plaintiff elects to try the action to a successful conclusion in 28 state court on a contract theory. After the defendant files 1 bankruptcy, the plaintiff asks the bankruptcy court to determine 2 the debt non-dischargeable because of the debtor’s alleged 3 fraud. The bankruptcy court can determine the debt is non- 4 dischargeable even though the plaintiff did not try the state 5 court case using that theory. 6 Res judicata does not apply in this context. 7 Judicial estoppel applies here and supports granting the 8 motion to quash. Even if judicial estoppel did not apply, the 9 subpoena should still be quashed based on the record. 10 11 6. The record does not support minimizing defendant’s right of 12 privacy applicable to the records sought. 13 The party who resists discovery has the burden to show that 14 discovery should not be allowed and has the burden of 15 clarifying, explaining and supporting its objections. Oakes v. 16 Halvorsen Marine Ltd., 179 F.R.D. 281, 283 (C.D. Cal. 1998). 17 Federal courts generally recognize a right of privacy that can 18 be raised in response to discovery requests. Johnson v. 19 Thompson, 971 F.2d 1487, 1497 (10th Cir. 1992). Defendant 20 relies here on the physician-patient privilege to anchor the 21 argument that defendant’s privacy interests outweigh the need to 22 for the records sought by the subpoena. Though the court is 23 convinced that medical records are subject to a privacy right 24 the inquiry does not end there. 25 First, Defendant’s physician-patient privilege is not 26 applicable in this adversary proceeding. Plaintiff’s discovery 27 efforts are to determine that Defendant’s debt is 28 nondischargeable under the bankruptcy code. The underlying cause 1 of action is then governed by federal law. The physician- 2 patient privilege protecting medical records from discovery does 3 not exist under federal law. See In re Mitchell, No. 18-40736- 4 JMM, 2019 Bankr. LEXIS 658, at *4 (Bankr. D. Idaho Mar. 5, 2019) 5 (citing In re Grand Jury Proceedings, 867 F.2d 562, 564 (9th 6 Cir. 1989) (noting the Ninth Circuit's refusal to adopt a 7 physician-patient privilege), abrogated on other grounds 8 by Jaffee v. Redmond, 518 U.S. 1 (1996); In re Grand Jury 9 Proceedings, 801 F.2d 1164, 1169 (9th Cir. 1986)). See also 10 Northwestern Memorial Hospital v. Ashcroft, 362 F.3d 923, 926 11 (7th Cir. 2004). 12 Second, the right to privacy “is well settled.” Grafilo v. 13 Wolfsohn, 33 Cal. App. 5th 1024, 1034, 245 Cal. Rptr. 3d 564, 14 571 (2019) (citations omitted). The right to privacy, however, 15 is not absolute. Id. at 571-72 (citations omitted). Potential 16 invasions of privacy are ordinarily evaluated by balancing the 17 privacy interest at stake and the seriousness of the threatened 18 invasion with the strength of legitimate and important 19 countervailing interests. Id. at 572 (citations omitted). In 20 balancing these interests, courts should also consider whether 21 “‘[p]rotective measures, safeguards[,] and other alternatives 22 may minimize the privacy intrusion.’” Id. 23 Unlike a privilege, the right of privacy is not an absolute 24 bar to discovery. Rather courts balance the need for information 25 against the claimed privacy right. Ragge v. MCA/Universal, 165 26 F.R.D. 601, 604-05 (C.D. Cal 1995). A patient’s constitutional 27 right of privacy in receiving medical treatment may be an 28 alternative source of protection to the physician-patient 1 privilege. However, this right is not absolute. Doe v. Se. Pa. 2 Transp. Auth., 72 F.3d 1133, 1138 (3d Cir. 1995); Caesar v. 3 Mountanas, 542 F.2d 1064, 1065 (9th Cir. 1976); Keith H. v. Long 4 Beach Unified Sch. Dist., 228 F.R.D. 652, 657 (C.D. Cal. 5 2005)(privacy right found applicable to medical records). 6 The Ninth Circuit developed five factors for courts to 7 consider when determining the governmental interest in obtaining 8 information outweighs the individual's privacy interest:

9 1) the type of information requested, 10 2) the potential for harm in any subsequent non-consensual 11 disclosure,

12 3) the adequacy of safeguards to prevent unauthorized 13 disclosure,

14 4) the degree of need for access, and

15 5) whether there is an express statutory mandate, 16 articulated public policy, or other recognizable public interest militating toward access. 17 18 Tucson Woman's Clinic v. Eden, 379 F.3d 531, 551 (9th Cir. 2004) 19 (citation omitted). 20 The court finds that three of the five factors weigh in 21 favor of granting the motion. 22 First, the information sought by Plaintiff’s subpoena is 23 necessary to determine the dischargeability of the debt, but as 24 explained later, that information may be obtained by other 25 methods. The request is for medical records. But the issue is 26 Defendant’s level of intoxication, if at all. All medical 27 records are beyond the issue at hand. This factor militates 28 against disclosure on this record. 1 Second, the harm in any subsequent non-consensual 2 disclosure has the potential to harm the Defendant’s fresh 3 start. Having private medical records released after a very high 4 state court judgment in a highly publicized matter could hurt 5 Defendant’s reputation and realistic chances at obtaining 6 gainful employment. So, there is a high potential harm if there 7 was a subsequent non-consensual disclosure. This factor 8 militates against disclosure as well. 9 Third, any disclosure could potentially be safeguarded to 10 prevent unauthorized disclosure with the entry of an appropriate 11 protective order. The request could be limited to only blood 12 alcohol content or another narrow request. The parties could 13 negotiate an appropriate protective order that would protect 14 dissemination of the material. In-camera review may also be 15 requested. This militates in favor of denying the motion to 16 quash. 17 Fourth, Plaintiff argues the medical records are 18 “essential” to resolving the dischargeability issue. They most 19 likely are. But, first, Plaintiff alleges in the adversary 20 complaint, “medical records from Fresno Community Regional 21 Medical Center, where Debtor was transported after the 22 Collision, indicate that Debtor was intoxicated at the time of 23 the Collision.” Doc. #1, ¶14. So, Plaintiff must actually have 24 the records and there is no need for access. Second, there is no 25 record on this motion that Plaintiff cannot obtain the 26 information from other sources (peace officer interviews, 27 witnesses with Defendant before the collision, deposition of the 28 1 |Jattending medical personnel at CRMC, etce.)This factor militates 2 |jagainst allowing the subpoena and granting the motion to quash. 3 Fifth, there is an express public policy involved here. The 41/8 523(a)(9) discharge is an extension of that policy against 5 |}operating vehicles under the influence of alcohol or other 6 |}substances. See In re Hudson, 859 F.2d 1418 (98 Cir. 1988). This 7 ||factor strongly favors permitting the discovery. 8 The court finds that the record in this matter, on balance, 9 |}weighs in favor of Defendant’s privacy interests. 10 11 Conclusion 12 For the foregoing reasons, the motion to quash is GRANTED. 13 ||/Defendant shall submit an order conforming with this ruling 14 |iwithin fourteen (14) calendar days. 15 16 17 Dated: Aug 03, 2020 By the Court 18 19 Levi Ag ‘ett LZ ené Lastreto II, Judge 20 United States Bankruptcy Court 21 22 23 24 25 26 27 28

1 Instructions to Clerk of Court 2 Service List - Not Part of Order/Judgment 3 The Clerk of Court is instructed to send the Order/Judgment 4 or other court generated document transmitted herewith to the parties below. The Clerk of Court will send the Order via the 5 BNC. 6 Craig Alan Brewer 7 18405 Ridgedale Dr 8 Madera CA 93638

9 Denis Delja 2711 Garden Rd 10 Monterey CA 93940 11 Gregory S. Mason 12 7647 N Fresno St Fresno CA 93720 13

14 James P. Wagoner PO Box 28912 15 Fresno CA 93729 16 17 18 19 20 21 22 23 24 25 26 27 28