California Evidence Code 1158: Deadline, Fees, and Affidavit

California Evidence Code 1158 lets an attorney obtain a patient’s medical records directly from a healthcare provider before filing a lawsuit, without a subpoena. The provider must make the records available within five business days of receiving a written authorization signed by the patient, and a provider that ignores the request can be ordered to pay the attorney’s reasonable enforcement costs, including fees.¹

Who Can Use the Statute

Section 1158 is written for attorneys and their representatives. It does not give patients acting on their own a way to demand records, and it does not apply once a lawsuit has been filed or a defendant has appeared. The tool is pre-litigation only.

The attorney must present a written authorization signed by one of the following:

The adult patient whose records are sought.
A guardian or conservator of the patient.
A parent or guardian, if the patient is a minor.
The personal representative or an heir of a deceased patient.

A copy of the signed authorization is enough; the attorney does not need to hand over the original.¹

Which Providers Must Comply

The statute defines “medical provider” broadly and applies to any of the following when licensed under California law: physicians and surgeons, dentists, registered nurses, dispensing opticians, registered physical therapists, podiatrists, licensed psychologists, osteopathic physicians, chiropractors, clinical laboratory bioanalysts and technologists, pharmacists and pharmacies, and licensed hospitals.¹ The obligation reaches every patient record in the provider’s custody or control that relates to the patient’s condition or treatment.

The Five-Day Deadline and What Happens If It Is Missed

Once a provider receives a valid authorization, it must make all requested records available for inspection and copying during business hours within five days. The statute also uses the word “promptly,” so a provider with records ready at hand should not sit on them until day five.¹

A provider that fails to produce records within the deadline can be held liable for all reasonable expenses, including attorney’s fees, incurred by the requesting attorney in any proceeding to enforce the statute.¹ A provider who stonewalls a valid request risks paying for the motion that forces compliance.

What the Provider Can Charge

The provider may charge the requesting attorney for reasonable costs, but the statute sets the ceiling:

Standard copying: $0.10 per page for documents up to 8½ by 14 inches.
Microfilm copying: $0.20 per page.
Oversize or special-processing documents: actual reproduction costs.
Clerical time: up to $16 per hour per person, in quarter-hour increments of $4.
Postage: actual charges.
Offsite retrieval: actual costs charged by the third party storing the records.

These are statutory caps, not suggested figures.¹ Once litigation begins and a subpoena replaces the authorization, the clerical rate under Evidence Code 1563 rises to $24 per hour,² so using 1158 before filing is the cheaper route for the client.

In-Person Pickup

If the attorney or a representative comes to the provider’s office to inspect and copy the records, the total fee is capped at $15, plus actual third-party retrieval costs for offsite records.¹ When the attorney has hired a professional photocopier or a copy service licensed under Business and Professions Code 22451, the provider cannot insist on doing the copying itself. Presentation of the authorization is enough proof of the copier’s role.

Electronic Records

If the records are kept electronically and the requesting party asks for an electronic copy, the provider must deliver them in the requested format when that format is readily producible. If it is not, the two sides must agree on a readable alternative.¹ The statute does not set a separate rate for electronic delivery, so the general “reasonable costs” standard applies.

The Custodian’s Affidavit That Must Accompany the Records

Records produced under Section 1158 must arrive with a sworn affidavit from the records custodian or another qualified witness. Evidence Code 1561 requires the affidavit to state that the person signing has authority to certify the records; that the copy is a true copy of everything described in the request; that the records were prepared by business personnel in the ordinary course of business at or near the time of the act, condition, or event; which records are included; and how they were prepared.³

If the provider has none of the requested records, or only some of them, the custodian must say so in the affidavit and deliver what does exist.³ Gaps have to be disclosed, not glossed over.

Getting Certified Records Into Evidence

Evidence Code 1562 makes the certified copy admissible in place of live testimony from the custodian, as long as the original would have been admissible under the business records exception in Evidence Code 1271. The affidavit itself is admissible as evidence of what it says, and the court presumes those statements are true.⁴

Section 1271 requires that the records were made in the regular course of business, created at or near the time of the event, identified by a qualified witness as to how they were prepared, and prepared under circumstances indicating trustworthiness.⁵ The 1561 affidavit is designed to check those boxes on paper so the custodian does not have to appear.

The presumption that the affidavit is true is one affecting the burden of producing evidence.⁴ The opposing party can rebut it with contrary evidence, for example by showing that the records were not actually kept in the ordinary course of business or that the copy is incomplete. Until that happens, the court treats the certified copy as reliable.

Reasons Records Can Still Be Excluded

A properly certified file is not automatically admitted at trial. The affidavit handles authenticity and foundation but does not answer other objections.

Trustworthiness under Section 1271 is the most common obstacle. A court can exclude specific entries if the circumstances of their preparation suggest they are unreliable. Contemporaneous treatment notes usually pass without issue. An entry made weeks later, or one that reads more like an opinion prepared for litigation than a clinical observation, is more vulnerable.⁵

Privilege is the other major barrier. California’s physician-patient privilege lets the patient block disclosure of confidential communications with a doctor.⁶ A personal injury plaintiff who puts a medical condition at issue generally waives the privilege for records tied to that condition, but records covering unrelated conditions may remain protected. Psychotherapy notes get stronger protection still: under HIPAA they are held to a higher confidentiality standard and stored separately, and a general medical records authorization typically is not enough to release them. Routine information like medication lists, session dates, and diagnoses does not count as a psychotherapy note even when it sits in a therapist’s file.

Once a Lawsuit Is Filed

Section 1158 stops working the moment a lawsuit is filed or a defendant appears. From that point, records are obtained through a subpoena duces tecum, and Evidence Code 1560 sets the response deadlines: 15 days in civil cases and 5 days in criminal cases. The custodian’s affidavit requirement under 1561 and the admissibility rules under 1562 apply the same way. The practical differences are the longer civil timeline, the higher $24-per-hour clerical rate under Section 1563, and additional sealing procedures for subpoenaed records.

If the Patient Has No Attorney

Section 1158 does not help a patient acting alone. A pro se patient uses Health and Safety Code 123110, which gives you a direct right to inspect your own records within five working days of a written request and to receive copies within 15 days. The fee caps are higher — up to $0.25 per page for paper copies and $0.50 per page for microfilm copies, plus actual labor, postage, and electronic media costs.⁷ The tradeoff is that you do not have to hire a lawyer just to see your file.

How HIPAA Fits In

Federal HIPAA gives patients a general right of access, but the federal timeline is 30 days, with a possible 30-day extension.⁸ California’s five-day rule is much faster and survives federal preemption because HIPAA does not override state privacy laws that are more stringent than the federal standard.⁹ A California provider must meet the state deadline, not the more relaxed federal one.

1
California Legislative Information. California Code Evidence Code 1158
2
California Legislative Information. California Code EVID 1563
3
California Legislative Information. California Code Evidence Code 1561
4
California Legislative Information. California Code EVID 1562
5
California Legislative Information. California Code EVID 1271
6
California Legislative Information. California Code Evidence Code 994
7
California Legislative Information. California Code HSC 123110
8
eCFR. 45 CFR 164.524
9
eCFR. 45 CFR 160.203