Judge Audra Mori, Case 22STCV02029 2023-03-07 Tentative Ruling

Plaintiff Siddharth Saravat (“Plaintiff”) filed this action against defendants Lily Sellers (“Lily”), Dylan Sellers (“Dylan”), and the City of Santa Monica (the “City”) for damages arising from a motor vehicle vs. pedestrian accident. Plaintiff alleges that on July 23, 2021, Lily was operating a motor vehicle owned by Dylan, with Dylan’s permission, and struck Plaintiff while Plaintiff was crossing the street in a marked crosswalk. Plaintiff alleges the City failed to maintain the crosswalk and created a dangerous condition of public property.

Plaintiff provides that on December 19, 2022, the City issued a subpoena seeking to Plaintiff’s employer, Payden & Rygel, seeking all of Plaintiff’s personnel records dating back to 2015. Plaintiff now moves to quash the subpoena served on his employer. The City opposes the motion, and Plaintiff filed a reply.

Plaintiff asserts that he has agreed to waive all claims of economic damages relating to his employment, including past and future loss of earnings. Plaintiff argues that the subject subpoena seeks irrelevant documents, is overbroad, and violates Plaintiff’s privacy rights.

In opposition, the City argues that Plaintiff’s personnel records are essential to the defense of the case because the City must be permitted to explore how Plaintiff is functioning in daily life and the severity of Plaintiff’s alleged brain impairment. The City asserts that Plaintiff returned to work on September 26, 2021, so the City is entitled to examine the effect of Plaintiff’s ongoing injuries. Additionally, the City asserts that Plaintiff’s discovery responses claim loss of earnings, and that it is entitled to evidence that tends to impeach Plaintiff’s credibility. The City further asserts it has the right to obtain information regarding what payment sources Plaintiff used or failed to use as evidence of a failure to mitigate. Lastly, the City contends that Plaintiff’s motion is untimely.

In reply, Plaintiff argues that the subpoena improperly seeks all of Plaintiff’s employment records whether they related to the underlying dispute or not. Plaintiff asserts he has informed the City that he has agreed to waive all claims of economic damages relating to his employment, and Plaintiff contends that his privacy interests are outweigh the City’s need for discovery.

A court “upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” (CCP § 1987.1.) The court, upon motion reasonably made by the party, may rule upon motions for quashing, modifying or compelling compliance with subpoenas. (See, e.g., Lee v. Swansboro County Property Owners Ass’n (2007) 151 Cal.App.4th 575, 582-583.) The parties’ discussion of their meet and confer efforts, or lack thereof, is irrelevant as there is no meet and confer requirement in bringing a motion to quash. (See CCP § 1987.1.)

“[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action,” (Code Civ. Proc., § 2017.010.) “For discovery purposes, information is relevant if it ‘might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement ...” (citation).” These rules are applied liberally in favor of discovery, (Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790), and contrary to popular belief fishing expeditions are permissible in some cases. (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 385.)

When compelled disclosure intrudes on constitutionally protected areas, it cannot be justified solely on the ground that it may lead to relevant information, rather, the compelled disclosure must be directly relevant. (Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 525.) Unlike privilege, privacy protection afforded is qualified, not absolute. In each case, the court must carefully balance the right of privacy against the need for discovery. The showing required to overcome the protection depends on the nature of the privacy right asserted; in some cases, a simple balancing test is sufficient, while in others, a compelling interest must be shown. (Hill v. National Collegiate Athletic Ass'n (1994) 7 Cal.4th 1, 34-35.)

“In Hill, [the California Supreme Court] established a framework for evaluating potential invasions of privacy.” (Williams v. Sup. Ct. (2017) 3 Cal.5th 531, 552, citing Hill v. Nat. Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35.) “The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious.” (Williams, supra, 3 Cal.5th at 552.) “The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy.” (Ibid.) “A court must then balance these competing considerations.” (Ibid.)

The California Supreme Court has rejected the “de facto starting assumption that such an egregious invasion is involved in every request for discovery of private information.” (Id. at 557.) It has directed courts to “instead place the burden on the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion, and against that showing must weigh the countervailing interests the opposing party identifies, as Hill requires.” (Ibid.) A compelling need for the discovery is not always required. (Ibid.) “What suffices to justify an invasion will…vary according to the context.” (Ibid.)

Confidential personnel files at a person's place of employment are within a zone of privacy. (Board of Trustees of Leland Stanford Jr. Univ. v. Superior Court (1981) 119 Cal.App.3d 516, 528-30.)

As to the City’s argument that Plaintiff’s motion is untimely, CCP § 1987.1 requires that a motion to quash be “reasonably made.” The examination date specified on the subpoena served on Plaintiff’s employer was January 16, 2023, and Plaintiff filed the instant motion on January 13, 2023. The City cites to CCP § 1987.1 and Lee v. Swansboro Cty. Property Owners Assn. (2007) 151 Cal.App.4th 575, in arguing that Plaintiff was required to file the motion at least five days before the date set for production. However, neither CCP § 1987.1 nor Lee v. Swansboro Cty. Property Owners Assn. holds that a party is required to file a motion to quash a deposition subpoena at least five days before the production date as a matter of law. The City does not identify any prejudice suffered in this case by Plaintiff’s filing of the motion on January 13, 2023. Thus, the City fails to show that Plaintiff’s motion was not reasonably made.

The subpoena served on Plaintiff’s employer demands everything in Plaintiff’s personnel file:

Complete personnel [sic] from 01/01/2015 to the present, including but not limited to any type of employment applications; any type of records pertaining to performance evaluations and/or employee reviews; insurance records; worker's compensation and/or disability records, including documentation regarding notification to employer, benefit review conferences, indemnity benefits, medical benefits, releases to return to work, doctor's reports and medical bills; any type of medical records; any type of accident reports, including witness statements; any type of incident reports; any type of records regarding or outlining employee benefits; any interoffice correspondence and/or notes; any type of absenteeism records and/or time cards. ** Include: employment/payroll/medical* Entire payroll file from first day of contact to present, (whether typed, handwritten or computer generated) including but not limited to, employee earnings ledgers, W-2 forms, 1099 forms, time and absenteeism records and every such record, including those existing in electronic or magnetic form, in the possession, custody or control of the said witness, and every such record to which the witness may have access.

Plaintiff’s confidential personnel files at his place of employment are within a zone of privacy. (Board of Trustees of Leland Stanford Jr. Univ., 119 Cal.App.3d at 528-30.) While the City contends that it seeks records relevant to Plaintiff’s economic and noneconomic damages, to Plaintiff’s ability to participate in activities of daily living, to showing a failure to mitigate, and evidence that tends to impeach Plaintiff’s credibility, the City’s subpoena served on Plaintiff’s employer seeks records concerning matters beyond those identified by the City. The subpoena seeks all employment applications, “any type of medical records,” and all doctor’s reports, among other documents. It is not clear how every document sought in the subpoena from Plaintiff’s employer is discoverable. For example, the City seeks all of Plaintiff’s employment applications, which often contain sensitive information and medical records without limitation to time or scope. While a plaintiff waives some expectation of privacy relating to the conditions or injuries claimed in a lawsuit, the City fails to show that the requested information is directly relevant to this matter. The City does not meet its burden of showing its need for the responsive documents outweighs Plaintiff’s right to privacy.

Based on the foregoing, Plaintiff’s motion to quash the subpoena served on Plaintiff’s employer, Payden & Rygel, is granted.

Plaintiff further requests sanctions of $2,060.00 for filing the motion. CCP § 1987.2 provides that the court “may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” The City, in its opposition, asserts that during meet and confer attempts, Plaintiff did not propose any modification to the subpoena, and Plaintiff did not address the City’s arguments for why the records were relevant. The City asserts that Plaintiff instead filed this motion. Thus, the Court finds Plaintiff did not meet and confer in good faith before filing the motion, and Plaintiff’s request for sanctions is denied.

Hon. Audra Mori

Judge of the Superior Court