Judge Bruce G. Iwasaki, Case Number: BC665114, Date: 2023-08-30 Tentative Ruling

Matter: (1.) Motion To Quash Defendant’s Deposition Subpoena for Production of Business Records to the U.S. Department of Labor, Wage & Hour Division (Filed 4/25/23)

(2.) Motion To Quash Defendant’s Subpoena Duces Tecum Personal Appearance and For Production of Health Records (Filed 4/26/23)

(3.) Motion To Quash Defendant’s Deposition Subpoena for Production of Business Records to the U.S. Department of Labor, Wage & Hour Division (filed 4/26/23)

Responding Party: Defendant Southern California Permanente Medical Group

Tentative Ruling: (1.) The Motion to Quash is Granted.

(2.) The Motion to Quash is Granted.

(3.) The Motion to Quash is Granted.

In this wrongful termination matter against Defendant Southern California Permanente Medical Group (Defendant), Plaintiff Tanya Williams (Plaintiff) asserts claims for discrimination based on her disability, association with her disabled daughter, use of family care and medical leave, and retaliation for taking family care and/or medical leave, requesting medical leave, accommodations, and/or opposing discrimination, harassment, and/or retaliation, as well as wrongful termination.

The operative pleading, the Third Amended Complaint, contains causes of action for (1.) Discrimination in Violation of Public Policy, (2.) FMLA Discrimination in Violation of Public Policy, (3.) Retaliation in Violation of Public Policy, and (4.) Wrongful Termination of Employment in Violation of Public Policy.

On April 7, 2023, Defendant Southern California Permanente Medical Group served three trial subpoenas to make documents available at trial. Plaintiff moves to quash these three trial subpoenas.

The Court grants the motions to quash on the grounds that the subpoenas do not comply with the particularity requirement of Code of Civil Procedure section 1987.

By way of background, this action was filed on June 14, 2017. The initial trial date was set for April 27, 2020. Based on this original trial date, discovery has been closed since May 5, 2020. (See Code Civ. Proc. § 2024.020. subd. (a) [“any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.”]; see also subd. (b) [“[A] continuance or postponement of the trial date does not operate to reopen discovery proceedings.”].) Defendant has not moved to re-open discovery. Thus, even with a new trial of September 26, 2023, the discovery cut-off date has passed.

In the case of a trial subpoena, section 1985, subdivision (b) requires that “[a] copy of an affidavit shall be served with a subpoena duces tecum issued before trial, showing good cause for the production of the matters and things described in the subpoena, specifying the exact matters or things desired to be produced, setting forth in full detail the materiality thereof to the issues involved in the case, and stating that the witness has the desired matters or things in his or her possession or under his or her control.” (Id. [emphasis added].)

Section 1987 governs service of a subpoena to produce a party or a document at trial. Subdivision (c) provides that if a written notice requiring a witness to attend court proceedings

“is served at least 20 days before the time required for attendance, or within any shorter period of time as the court may order, it may include a request that the party or person bring with him or her books, documents, electronically stored information, or other things. The notice shall state the exact materials or things desired and that the party or person has them in his or her possession or under his or her control. Within five days thereafter, or any other time period as the court may allow, the party or person of whom the request is made may serve written objections to the request or any part thereof, with a statement of grounds. Thereafter, upon noticed motion of the requesting party, accompanied by a showing of good cause and of materiality of the items to the issues, the court may order production of items to which objection was made, unless the objecting party or person establishes good cause for nonproduction or production under limitations or conditions ....” (Id., subd. (c) [emphasis added].)

Plaintiff’s motion to quash the multiple trial subpoenas are governed by Code of Civil Procedure section 1987.1, which provides in relevant part that:

When a subpoena requires the attendance of a witness or the production of books, documents or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by the party, the witness, … may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon such 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 parties, the witness, … from unreasonable or oppressive demands including unreasonable violations of a witness's or consumer's right of privacy.”

(1.) Motion To Quash Defendant’s Deposition Subpoena for Production of Business Records to The U.S. Department of Labor, Wage & Hour Division (Filed 4/25/23)

On April 7, 2023, Defendant served a subpoena duces tecum for personal appearance and production of documents. (Madjidi Decl., ¶ 3; Exh. 1.) The subpoena seeks discovery of:

“The complete files maintained by the Department of Labor pertaining to the Wage and Hour Division audit conducted by investigator Robert Lindsey of Kaiser Permanente in or about November, 2015. This request includes all documents filed or prepared in connection with the audit referenced above, including but not limited to copies of all investigation reports, correspondence, questionnaires, witness statements, notes, emails, computer files, findings, and the entire case file(s).”

On April 19, 2023, Plaintiff served an objection to the subpoena. (Madjidi Decl., ¶ 3; Ex. 4.)

On the motion to quash, Plaintiff argues this subpoena is seeking the production of broad categories of unknown documents that “refer or relate to” general subject matters.

Plaintiff also argue that Defendant has taken a contradictory position by seeking this discovery –claiming it relevant for these discovery purposes – but also claiming the evidence is not relevant in the motion in limine No. 9. In opposition, Defendant argues if the Court grants its Motion in Limine No. 9, Defendant will withdraw this trial subpoena.

(2.) Motion To Quash Defendant’s Subpoena Duces Tecum Personal Appearance and For Production of Health Records (Filed 4/26/23)

On April 7, 2023, Defendant Southern California Permanente Medical Group served a Subpoena Duces Tecum for personal appearance and production of documents of mental health records. The subpoena seeks discovery of:

“Any and all (1) mental health records; (2) provider notes; and (3) psychiatric medical records in KAISER’s possession, custody, and/or control relating to any treatment, diagnosis, or evaluation rendered to TANYA WILLIAMS (SSN: ***-**-6610; DOB 05/05/1979) by any healthcare provider and/or inpatient and/or outpatient treatment programs/facilities, including but not limited to Christine Michell Aguilar, LCSW; Louise Ellen Carroll, LCSW; Carolyn C. Coleridge, LCSW; Laura Adele Israel, LCSW; Stephanie Aiko Nakayamo, MFT; Matthew Pimazar, M.D.; Elizabeth Boehning White, LCSW, and Dara N. Yungmna, MFT from January 1, 2010 to the present, for any mental health condition, including, but not limited to, any anxiety, stress, depression, or any other mental health disorder.” (Exh. 1.)

This trial subpoena seeks any and all documents from eight different health care professionals.

On April 19, 2023, Plaintiff served an objection to this subpoena. (Madjidi Decl., ¶ 3; Exh. 4.)

Plaintiff first argues that although it purports to limit the documents to “mental health issues” as Kaiser Permanente has a policy of releasing all records or no records. (Madjidi Decl., ¶7.) As such, this trial subpoena is an unduly intrusive invasion into Plaintiff’s privacy by seeking irrelevant discovery.

Plaintiff also, again, argues that the trial subpoena lack the required particularity of a trial subpoena and constitute an improper discovery requests.

(3.) Motion To Quash Defendant’s Deposition Subpoena for Production of Business Records to The U.S. Department of SEIU-UHW United Healthcare Workers West (filed 4/26/23)

On April 7, 2023, Defendant served a subpoena duces tecum for personal appearance and production of documents (Madjidi Decl., ¶ 3; Exh. 1.) The subpoena seeks discovery of:

Any and all documents referring or relating to Tanya Williams (SSN: ***-**- 6610; DOB 05/05/1979) wherever maintained, in the possession, custody or control of the SEIU-UHW United Healthcare Workers West, from February 8, 1999, to the present, including but not limited to: (1) Any and all DOCUMENTS, including e-mails or other communications, pertaining to grievances filed by or on behalf of Tanya Williams, and all documents related to said grievances; (2) Any and all DOCUMENTS, including e-mails or other communications, pertaining to complaints made by or on behalf of Tanya Williams, and all documents related to said complaints. (3) Any and all DOCUMENTS, including e-mails or other communications, pertaining to arbitrations involving Tanya Williams, and all documents related to said arbitrations.

Where used herein, “DOCUMENTS” means and includes writings, drawings, graphs, charts, data, compilations, tape recordings, video tapes, and handwritten matter of whatever character, including, but not limited to, letters, memoranda, telegrams, periodicals, pamphlets, reports, records, studies, papers, ledger, catalogues, handbooks, brochures, diaries, and journals, including carbon or photographic copies of any such material.”

On April 19, 2023, Plaintiff served an objection to the subpoena. (Madjidi Decl., ¶ 3; Ex. 4.)

Plaintiff repeats the argument raised on the first trial subpoena. Plaintiff contends the subpoena is an improper trial subpoena because it does not seek particularized documents and seeks general discovery.

Defendant’s notices and subpoenas do not specify the “exact” materials to be brought to trial.

As a leading treatise on civil trials and evidence explains: “For discovery purposes, a party may compel document production by reasonably describing a category of documents (e.g., ‘all correspondence between Jones and Smith relating to the XYZ transaction’). (Code Civ. Proc., § 2031.030[, subd.] (c)(1).) [¶] But to obtain production at trial, the description must be ‘exact’ (e.g., ‘letter dated June 21, 1990, written by Harry A. Jones to Paula Smith, captioned “Re XYZ” and marked as Exhibit “A” in Smith's deposition’).... This prevents parties from using a ‘notice to produce’ for discovery purposes after discovery is closed.” (Wegner et al., Cal. Prac. Guide: Civil Trials & Evidence (The Rutter Group 2023) ¶ 1:115.)

In interpreting the scope of section 1985, courts have denied “omnibus descriptions” of documents or a generalized request for “all reports and documents gathered by investigators.” (Pacific Auto Ins. Co. v. Superior Court (1969) 273 Cal.App.2d 61, 69-70 [“request for all correspondence, records and documents was too broad”]; Flora Crane Service, Inc. v. Superior Court (1965) 234 Cal.App.2d 767, 786-787 [in specifying the exact things to be produced, omnibus descriptions inadequate].)

Instead, in the manner of a discovery request, Defendant lists broad and general subject matter categories, instructing Plaintiff to bring documents fitting those categories, should any exist. Given the breadth of the categories of the notice and their failure to designate any specific materials, Defendant’s trial subpoenas do not satisfy the requirements of Code of Civil Procedure section 1987 and appear to be an attempt to conduct untimely discovery.

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