Judge: Carolyn M. Caietti, Case: 37-2022-00030524-CU-WT-CTL, Date: 2024-01-12 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - January 11, 2024

01/12/2024  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited  Wrongful Termination Motion to Quash (Civil) 37-2022-00030524-CU-WT-CTL GIANNELLA VS SHARP HEALTHCARE [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Quash Subpoena, 07/13/2023

Plaintiff Keitha Giannella's Motion to Quash Defendants' Subpoena to Scripps Memorial Hospital LA Jolla for Employee Records is GRANTED IN PART AND DENIED IN PART.

Plaintiff Keitha Giannella's Motion to Quash Defendants' Subpoena to Surgery Center of California, LLC for Employee Records is GRANTED IN PART AND DENIED IN PART.

In this case, Plaintiff Keitha Giannella alleges Defendants Sharp Healthcare (Sharp) and Grossmont Hospital Corporation (GHC) failed to accommodate her religious beliefs after she submitted a written request for a religious accommodation to be exempt from Defendants' COVID-19 vaccine booster policy.

The complaint asserts causes of action for: (1) religious discrimination – failure to accommodate; (2) religious discrimination-disparate treatment; (3) harassment; (4) retaliation; (5) failure to prevent discrimination and harassment; and (6) wrongful termination.

Defendant issued subpoenas for employment records on two subsequent employers, Scripps Memorial Hospital La Jolla (Scripps) and Surgical Center of California, LLC (the Surgery Center). Plaintiff moves to quash the subpoenas.

C.C.P. section 1985.6(f) allows an employee whose employment records are sought by a subpoena to move under C.C.P. section 1987.1 to move or modify the subpoena. C.C.P. section 1987.1 provides courts may make orders 'quashing the subpoena entirely, modifying it or directing compliance with in 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...from unreasonable or oppressive demands including unreasonable violations of a witness's or consumer's right of privacy.' A civil litigant's right to discovery is broad. (Williams v. Superior Court (2017) 3 Cal.5th 531 541; C.C.P., § 2017.010.) The discovery statutes are construed liberally in favor of disclosure unless the request is clearly improper by virtue of well-established causes for denial. 'Under the Legislature's 'very liberal and flexible standard of relevancy,' any 'doubts as to relevance should generally be resolved in favor of permitting discovery.' ' (Id. at p. 542.) But the scope of discovery is not limitless. Information otherwise discoverable may be protected by a constitutional or statutory privilege. (Board of Registered Nursing v. Superior Court (2021) 59 Cal.App.5th 1011, 1039.) After review of the requests and the parties' arguments and legal authority, the Court determines: No. 1 (employment application) is discoverable under the broad scope of discovery.

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2996031  53 CASE NUMBER: CASE TITLE:  GIANNELLA VS SHARP HEALTHCARE [IMAGED]  37-2022-00030524-CU-WT-CTL No. 2 (earned income) is discoverable. Plaintiff's discovery responses reflect she minimized her amount of lost income by seeking alternative employment with Scripps and the Surgery Center. (Declaration of Heather Stone, at Ex. C.) Plaintiff estimated her lost future wages for time at Scripps Memorial Hospital La Jolla. Defendant is entitled to verify this information and to ensure a complete record as Plaintiff only produced what was in her possession, custody and control. (Id., at Ex. D.) No. 3 (work performance) is overbroad in scope and will be modified and narrowed to records related to Plaintiff's work performance and her religion.

No. 4 (reasons why Plaintiff is no longer employed) and No. 5 (reasons Plaintiff was not hired) are overbroad in scope and will be modified and narrowed to reasons involving Plaintiff's religion and requests for religious exemptions/accommodations.

No. 6 (complaints regarding employment) and No. 7 (complaints regarding employment made to any administrative or governmental agency) are overbroad in scope and will be modified and narrowed to complaints regarding religious exemption/accommodation requests and any harassment/retaliation from such requests.

Nos. 8 ('work history') and 9 ('employment') are vague, ambiguous and overbroad.

Nos. 10-13 (requests for religious accommodations and exemptions and steps taken) are calculated to lead to the discovery of admissible evidence pertaining to Plaintiff's credibility and sincerity of her alleged firmly held religious beliefs. (See, Soldinger v. Northwest Airlines, Inc. (1996) 51 Cal.App.4th 345, 370 [the employee must establish a prima facie case that she has a bona fide religious belief].) In opposition, Defendant represents Plaintiff, within a limited timeframe, made religious accommodation requests to other employers, including Scripps, that significantly differ from the information and requests submitted to Sharp. (Opp., at p. 7:27-8:17.) This brings into dispute whether Plaintiff's beliefs are truly held. (See, E.E.O.C. v. Union Independiente de la Autoridad de Acueductos y Alcantarillados de Puerto Rico (1st Cir. 2002) 279 F.3d 49, 56.) The finding on this issue generally depends on the factfinder's assessment of the employee's credibility. (Ibid.) All parties cite to guidance issued by the EEOC, which states factors that might undermine an employee's credibility on this issue include: whether the employee has behaved in a manner markedly inconsistent with the professed belief; whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons; whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons. (EEOC, Section 12: Religious Discrimination, § 12-I.A.2, https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination#_ftnref45, (last accessed Jan. 8, 2024); see also E.E.O.C., supra (ruling evidence tending to show an employee acted in a manner inconsistent with his professed religious belief is relevant to the factfinder's evaluation of sincerity).) For now, under the broad scope of discovery, Defendant is entitled to discover this evidence to test whether Plaintiff's beliefs were bona fide.

As to Plaintiff's privacy objection, all parties also address the Hill framework, but the analysis is incomplete. (Hill v. National Collegiate Athletic Assn (1994) 7 Cal.4th 1, 26.) While Plaintiff may have a legally protected privacy interest in her employment records (see, Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 528-30 (confidential personnel files at a person's place of employment may be private), disapproved on other grounds in Williams v. Superior Court (2017) 3 Cal.5th 531, 557), she did not address whether she has an objectively reasonable expectation of privacy the information would be kept private and a threatened intrusion that is serious. (See, County of Los Angeles v. Sup. Ct. (2021) 65 Cal.App.5th 621, 629, 640 (assessing privacy interests related subpoenas on nonparties).) Even if the Court assumes Plaintiff carried her threshold burden on the first part of the Hill framework, Calendar No.: Event ID:  TENTATIVE RULINGS

2996031  53 CASE NUMBER: CASE TITLE:  GIANNELLA VS SHARP HEALTHCARE [IMAGED]  37-2022-00030524-CU-WT-CTL Defendants have a compelling need to test and defend against Plaintiff's claims, particularly as to her credibility as discussed above, lost earnings and benefits, reputational harm, lost job opportunities, post-termination employability, earnings capacity, the nature of available work and Plaintiff's efforts to mitigate her damages. Fairness in conducting the litigation and the consequences of restricting access to the information also requires production. There is readily no other available source to receive and confirm this information except directly from the subsequent employers. Contrary to Plaintiff's argument, Defendants are not precluded from seeking these records directly from the subsequent employers even though Plaintiff made, at least some, production herself.

For these same reasons, Nos. 14-17 (requests for medical accommodations and exemptions) are also reasonably calculated to lead to the discovery of admissible evidence about Plaintiff's credibility (supra).

But the requests will be modified and narrowed to requests for medical accommodations and exemptions for any COVID vaccine booster policy, wearing of personal protective equipment, including masks, symptom screening, regular testing or other precautionary measures related to COVID.

But to provide for additional protection, the Court will order the records produced under a protective order. (See, City and County of San Francisco v. Uber Technologies, Inc. (2019) 36 Cal.App.5th 66, 84 (rejecting Uber's contention the trial court's order should be reversed on the basis administrative subpoenas invade the privacy and confidentiality interests of Uber or third parties where a protective order was in place).) For these reasons, the motions are GRANTED IN PART AND DENIED IN PART.

Concluding Orders The subpoenas to Scripps Memorial Hospital La Jolla and Surgery Center of California, LLC, are quashed as to Requests Nos. 8 and 9 and production may not to be produced.

The subpoenas to Scripps Memorial Hospital La Jolla and Surgery Center of California, LLC, are modified as to Requests Nos. 3-7 as indicated above; and responsive records are ordered produced subject to a protective order (infra).

Responsive records to Requests Nos. 1, 2, 10-13 and 14-17 stated in the subpoenas to Scripps Memorial Hospital La Jolla and Surgery Center of California, LLC, are ordered produced subject to a protective order (infra).

Unless the parties provide written consent or obtain a court order, any records produced pursuant to this ruling shall not be disclosed to any person other than: (i) counsel for the parties to this case; (ii) counsel's employees; (iii) individual parties or party-officers/employees to the extent deemed necessary by counsel for the prosecution or defense of this litigation; (v) consultants or expert witnesses retained in the litigation; (vi) authors or recipients of the records. Further, if a party seeks to use these records at trial or in support or opposition to a motion or request, the party must comply with California Rules of Court 2.550 and 2.551 and first obtain a court order to do so.

Plaintiff is ordered to prepare and submit a proposed order, including any other language the parties agree to for the protective order(s), in accordance with any applicable laws and court rules.

Defendants are reminded to comply with Department 70's Policies and Procedures and to provide courtesy copies of all motion paperwork.

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