Judge Christian R. Gullon, Case Number: 23PSCV00156, Date: 2023-11-29 Tentative Ruling

Judge: Christian R. Gullon, Case: 23PSCV00156, Date: 2023-11-29 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, attorneys are advised to check this website to determine if any changes or updates have been made to the tentative ruling.

Counsel may submit on the tentative rulings by calling the clerk in Dept. O at 909-802-1126 before 8:30 the morning of the hearing. Submission on the tentative does not bind the court to adopt the tentative ruling at the hearing should the opposing party appear and convince the court of further modification during oral argument.

The Tentative Ruling is not an invitation, nor an opportunity, to file any further documents relative to the hearing in question. No such filing will be considered by the Court in the absence of permission first obtained following ex-parte application therefore.

(1) PLAINTIFF’S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT is GRANTED.

(2) MOTION FOR ORDER QUASHING SUBPOENA TO TESTRITE PRODUCTS CORPORATION; REQUEST FOR MONETARY SANCTIONS AGAINST DEFENDANT CLAREMONT COLLEGES, INC. AND THEIR ATTORNEYS IN THE AMOUNT OF $3,575.00 is DENIED because Plaintiff not met his burden to establish a reasonable expectation of privacy in personnel records as he has made them the subject of litigation.[1] The court would have modified the subpoena because some requests appear duplicative (e.g., items 1 and 2 seeking handbook for job duties addressed by item 4; item #1 is duplicative of item #5) or irrelevant (e.g., item 1 files maintained by loss prevention), but as Plaintiff has not sought a modification, the court will not do so. There is no need for an in-camera review as the parties have a stipulated protective order in place.[2]

This case is an alleged discrimination case. Plaintiff RICHARD CHOI alleges the following against Defendants THE CLAREMONT COLLEGES, INC. (“the Claremont Colleges”,” “Colleges” or “Defendant”), a California corporation; STAN SKIPWORTH, an individual; and CINDY CAHILL, an individual (collectively, “Defendants”): Plaintiff began his employment at Claremont College’s Department of Campus Safety as a Campus Safety Officer in 2004. Due to his religious Christian beliefs, around 2018, Plaintiff requested a religious accommodation for his schedule to be arranged so that he could ensure his attendance of church on Sundays. Defendants did not grant the request and instead engaged in a concerted effort to make Plaintiff quit such as (i) unwarranted and disproportionate discipline; (ii) extended meetings where Plaintiff would be verbally berated and yelled at; (iii) questioning of Plaintiff’s character and integrity; (iv) and precluding Plaintiff from being promoted due to his religious beliefs. Plaintiff was also alienated due to his Korea ethnicity.

On March 8, 2023, Plaintiff filed his first amended complaint (FAC) against Defendants for:

On September 11, 2023, Plaintiff a motion for relief from jury waiver, which the court granted. (The Claremont Colleges and Cahill filed a notice of non-opposition to the motion.)

On December 20, 2023, Plaintiff filed a MOTION FOR ORDER QUASHING SUBPOENA TO TESTRITE PRODUCTS CORPORATION; REQUEST FOR MONETARY SANCTIONS AGAINST DEFENDANT CLAREMONT COLLEGES, INC. AND THEIR ATTORNEYS IN THE AMOUNT OF $3,575.00. (On 2/28/24, the court conducted an IDC on the matter and, as the matter was left unresolved, the court allowed the parties to proceed with a formal hearing.)

On December 21, 2023, Plaintiff filed a motion for leave to file a second amended complaint (SAC), which on 1/31/24, the court, despite a filing of a non-opposition by the Claremont Colleges, the court denied without prejudice for various defects.

On March 6, 2024, the Claremont Colleges filed its Opposition to the instant motion for leave to file a SAC.

On March 12, 2024, the Claremont Colleges filed its opposition to the motion to quash. That same day, Plaintiff filed his Reply in support of the motion for leave to amend to file a SAC.

The court may, in furtherance of justice and on any proper terms, allow a party to amend any pleading. (Code Civ. Proc., § 473, subd. (a)(1); Branick v. Downey Savings & Loan Association (2006) 39 Cal.4th 235, 242.) The court may also, in its discretion and after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. (Code Civ. Proc., § 473, subd. (a); Branick, supra, 39 Cal.4th at 242.) The court may deny the plaintiff’s leave to amend if there is prejudice to the opposing party, such as delay in trial, loss of critical evidence, or added costs of preparation. (Id.)

Under California Rules of Court, rule 3.1324, a motion to amend a pleading before trial must (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. (Cal. Rules of Court, rule 3.1324(a).) A separate supporting declaration specifying (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reason why the request for amendment was not made earlier must accompany the motion. (Id., rule 3.1324(b).)

Plaintiff seeks leave to file a SAC to (1) add additional factual allegations/detail/context to allegations that were previously pled and (2) add two COAs for (1) Failure to Accommodate Religious Belief or Observance and (2) Failure to Prevent Discrimination, Harassment, and Retaliation.

Previously, the court denied Plaintiff’s initial motion for leave to file a SAC because the motion failed to comply with CRC[5] and CCP requirements. More specifically, the court denied the motion because there was no explanation as to why the request for amendment was not made earlier (suggesting lack of diligence on part of Plaintiff’s Counsel) considering the facts, based upon the similarity of the proposed new two COAs, were already known to Plaintiff before the action was filed. (See generally 1/31/24 Ruling.)

Now, though the motion is albeit vague as to the exact information learned,[6] abiding by principle of liberal leave to amend, the court grants the motion.

Plaintiff explains that the amendment is not delayed because the facts giving rise to the amendment were discovered on or about July 18, 2023 and November 29, 2023 when Plaintiff’s Counsel conducted further client interviews after the failed 6/22/22 mediation. (Motion p. 7, citing Kim Decl., ¶3.)

Though glossed over by the Colleges in opposition, it does appear that early mediation stalled discovery. To the extent that the Colleges suggests this is a case of “inexcusable delay” (Opp. pp. 7-8), it cites to two cases that are factually distinguishable.

In Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, the appellate court found that the trial court did not abuse its discretion in denying leave to amend for two reasons. First, the plaintiff sought leave to amend “on the eve of trial, nearly two years after the complaint was originally filed.” (Id. at p. 486.) Second, while the original complaint was based on breach of contract, misrepresentation, and intentional infliction of emotional distress arising from the plaintiff’s tenure as agent for the defendant, the proposed Unruh Act claim would prejudice the defendants because they “had not discovered or deposed many of the witnesses who would support the new allegations, and had not marshaled evidence to oppose the contention that a systemwide discriminatory policy existed.” (Id. at pp. 486-487.)

Here, however, the case is about one year old, there are no discovery cut offs, and no trial date is yet set.

Next, the Colleges’ citation to Melican v. Regents of University of California (2007) 151 Cal.App.4th 168 is equally distinguishable. There, the appellate court determined that the trial court did not abuse its discretion when the plaintiffs, at the summary judgment stage over five years later, sought to add a new claim, notably one that was not viable based on the facts. (Id. at p. 176.)

To the extent that the Colleges argues it will be prejudiced,[7] the Colleges has not provided authority that increased cost and time alone are sufficient for the type of prejudice the court is concerned with. Ultimately, whether it be through this motion or others, cost and time are but a necessary in any litigation.

Therefore, the court finds that Plaintiff did not engage in unreasonable delay in proposing the amendment nor would it (severely) prejudice the Colleges to warrant denying the motion. (See Magpali, supra, 48 Cal.App.4th at p. 487, quoting Estate of Murphy (1978) 82 Cal.App.3d 304, 311 [denying leave to amend is appropriate where inexcusable and prejudice is shown to the opposing party.]

All in all, the foregoing establishes that it isn’t necessarily new facts that warrant amendment but better due diligence on part of counsel. In fact, Counsel Kim appears to tacitly concede this point by noting involvement of new associated counsel provided additional legal insight and analysis. (Motion p. 7:22-23.) While an attorney should carefully review the facts to determine what COAs support said facts at the outset of litigation, leave to amend should be given where the complaint is merely “imperfectly pleaded.” (Kirby v. Albert D. Seeno Construction Company (1992) 11 Cal.App.4th 1059, 1067.) Thus, as this is a not a situation wherein the gravamen of the claims was not pleaded at all or a case wherein the proposed amendment would “open[] up an entirely new field of inquiry,”[8] denying leave to amend would be an abuse of discretion.

Based on the foregoing—as the amendment is not inexcusably delayed, the amendment would not severely prejudice Defendant as discovery is still on going and the issues are related to the underlying facts and ruling otherwise would very likely constitute as an abuse of discretion—the motion is GRANTED.

II. Motion for Order Quashing Subpoena to Test-Rite Products Corporation and Request for Monetary Sanctions

CCP section 1987.1 governs motions and orders to quash subpoenas. The statute provides that when a subpoena requires the production of documents:

[T]he 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.

As for attorney fees, “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.” (Code of Civ. Proc., § 1987.2, subd. (a).)

1. Any personnel file, wherever maintained; any departmental file, wherever maintained; any formal or informal file kept by any supervisor or manager, wherever maintained; any file maintained by any loss prevention or security department, wherever maintained?

2. Any and all employee handbooks provided to CHOI during his employment or tenure as an employee and/or independent contractor; any documents pertaining to any reference check done concerning CHOI; any payroll records, wherever maintained; appears partially moot since getting payroll records; extent handbook for job duties, that is addressed in number 4.

3. Any documents pertaining to any complaint or charge made by, or concerning, CHOI, internally, or with any local, state, or federal governmental agency, including, but not limited to, the State of California Department of Fair Employment and Housing, the United States Equal Employment Opportunity Commission, or the State of California Workers' Compensation Appeals Board; relevant agencies in terms of governing employment

4. Any and all documents pertaining to CHOI, wherever maintained, in YOUR possession, custody or control, including, but not limited to, documents concerning or pertaining to offers of employment; dates of employment; terms, benefits, and conditions of employment; employment contracts, if any, and/or assignments; job requirements; benefit statements; insurance-related documents; rates of pay; form and amount of compensation received by CHOI, whether as an employee or independent contractor; job title or job status; resumes; employment applications; termination and reasons for ending CHOI 's employment or independent contract relationship; complaints about job or work performance; formal or informal complaints concerning CHOI; any documents pertaining to any investigation concerning or relating to CHOI.

5. Any other documents, wherever maintained, that refer to CHOI, by name or by other description, including but not limited to, any notes, memoranda, or documents of any kind, in the possession, custody or control of your entity or any employee thereof, that refer to CHOI either by name, or by other description.

Plaintiff’s argument: Plaintiff seeks to quash the subpoena because Plaintiff’s personnel files are private and Defendant has not made a showing otherwise that the documents and information are relevant. (See Headers “A” and “B” Motion pp. 5, 6.)

The Colleges’ argument: The Colleges argues that Plaintiff has failed to demonstrate a privacy interest in his personnel records and to the extent he has, Defendant has legitimate and countervailing interests.

Here, for reasons to be discussed below, the court agrees with the Colleges that Plaintiff has not met its burden, a burden which was to be met before the burden shifts to the Colleges to demonstrate a countervailing interest in disclosure of the personnel files. Both Plaintiff’s motion and Reply fail to adhere to the directive set forth by the California Supreme Court (in Hill infra) regarding privacy concerns. In fact, as observed by Defendant in opposition, Plaintiff cites to cases that were expressly disapproved by the Williams court including Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516 and Life Technologies Corp. v. Superior Court (2011) 197 Cal.App.4th 640. The Reply not only ignores this point but continues to heavily rely upon the incorrect standard set forth in Board of Trustees.[11]

The California Supreme Court in Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 30-40 set forth a three-pronged test that a party asserting a right against discovery must establish:

(2) there is a “reasonable expectation of privacy in the circumstances;” and

The burden is “on the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion, and against that showing [a court] must weigh the countervailing interests the opposing party identifies.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 557, emphasis and underline added; see also Hill, supra, 7 Cal.4th at p. 37 [the invasion of privacy must be “sufficiently serious in [its] nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right.”], emphasis and underline added) The Williams court clarified, and disapproved of numerous cases holding otherwise, that a defendant need show a compelling need only if the information sought would invade “interests fundamental to personal autonomy.” (Id. at p. 557, emphasis and underline added.)

“[W]hether a legally recognized privacy interest exists is a question of law, and whether the circumstances give rise to a reasonable expectation of privacy and a serious invasion thereof are mixed questions of law and fact.” (Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 370 citing Hill, supra, 7 Cal.4th at p. 40.) “If the undisputed material facts show no reasonable expectation of privacy or an insubstantial impact on privacy interests, the question of invasion may be adjudicated as a matter of law.” (Ibid.) Ultimately, the court must utilize a “nuanced approach” by striking a balance “between privacy interests and a litigant’s need for discovery.” (Alch v. Superior Court (2008) 165 Cal.App.4th 1412, 1422.)

[T]he privacy claimant must possess a legally protected privacy interest, of which there are two general types, autonomy privacy (the interest in making intimate personal decisions or conducting personal activities without observation, intrusion or interference) and informational privacy. Informational privacy—the form at issue in this case—is the interest ‘in precluding the dissemination or misuse of sensitive and confidential information.’ [internal citation omitted.] Information in this class is deemed private ‘when well-established social norms recognize the need to maximize individual control over its dissemination and use to prevent unjustified embarrassment or indignity.’” (Id, at p. 1423, quoting Hill, supra, 7 Cal.4th at p. 35) (emphasis added.)

Here, “[p]ersonnel files at a person’s place of work are within a constitutionally protected zone of privacy….” (Motion p. 6, citing Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 526, 528-529.)[12] In fact, the California Supreme Court has construed the California Constitution to provide broader protection in employment litigation than the privacy rights guaranteed by the U.S. Constitution. (American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 327-328.)

Therefore, as the opposition does not otherwise dispute this factor, employees have a bona fide interest in the confidentiality of their personnel files.

“Second, the privacy claimant must have a reasonable expectation of privacy under the specific circumstances, including ‘customs, practices, and physical settings surrounding particular activities [which] may create or inhibit reasonable expectations of privacy.’” (Alch, supra, 165 Cal.App.4th at p. 1423, quoting Hill, supra, 7 Cal.4th at p. 36.) It is an “objective entitlement founded on broadly based and widely accepted community norms.” (Id. at p. 37.)

For example, matters wherein one has an indisputable reasonable expectation of privacy include those found within the intimacies of a marriage. (Motion p. 6, citing Tylo v. Superior Court (1997) 55 Cal.App.4th 1379.) Or other “patently sensitive items” include medical and financial records.[14] (Opp. p. 9, citing Chin, et al., Cal. Prac. Guide: Emp’t Litig. (Rutter Group ¶ 19:684, quoting Alch, supra, 165 Cal.App.4th at p. 1427.)

As for employment records, “California recognizes a limited privacy right in employment records.” (Opp. p. 9, quoting Sirota v. Penske Truck Leasing Co. (2006) WL 708910, at *2 (N.D. Cal. 2006).) And the limited privacy right becomes even more limited when a plaintiff initiates a lawsuit. (Ibid.)

Here, though there is no argument nor evidence that Plaintiff has voluntarily, knowingly, and publicly disclosed portions of his personnel file such that the information contained within those portions is no longer confidential and cannot support a constitutional violation of privacy claim, Plaintiff could not have a reasonable expectation that his personnel records would not be disclosed in this litigation. In an action alleging racial and religious discrimination, it would be “completely unreasonable” for Plaintiff to expect that his personnel file would not be disclosed to the Colleges so that the Colleges can determine (1) what Plaintiff communicated to his new employer regarding the reasons for leaving his employment with the Colleges (as to constructive discharge COA) and (2) whether Plaintiff has requested the same or similar religious accommodations and whether Test-Rite has accommodated those requests differently or in the same as TCC did (evidence of the reasonableness of the accommodations the Colleges provided). (See Rosales v. City of Los Angeles (2000) 82 Cal.App.4th 419, 428-429, emphasis and underline added [police officer “could not” have a reasonable expectation of privacy in his personnel file in an action alleging sexual misconduct during his employment as an officer]; see also Heller v. Norcal Mutual Ins. Co. (1984) 8 Cal.4th 30, 43-44 [no reasonable expectation of privacy where disclosed medical records “would have been inevitably discovered …Any expectation on plaintiff's part that such information would remain confidential was thus unreasonable.”].)

Moreover, in the context of Test-Rite’s work—wholesale distribution of home furnishings and housewares—[15] it is difficult to see how or why a warehouse worker might expect the logistics of his employment, his benefits, and/or salary to remain confidential when the information can be retrieved through internet searches (e.g., glassdoor.com) or a telephone call to the company’s human resources department. Additionally, given the nature of the work, which presumably involves physical tasks rather than requiring extensive specialized skills or advanced training,[16] it can be argued that a reasonable expectation of privacy in work records may not be as strong as in professions that involve highly specialized knowledge or creative expertise, such as in Alch wherein the writers’ evaluative materials were sensitive due to the inclusion of script coverages and other critiques.

Thus, Plaintiff does not have a reasonable expectation of privacy in his personnel record. As a defendant may prevail by negating any of the three elements (Hill, supra, at p. 40), the court need not address the third element.

To the extent that Plaintiff argues the evidence would constitute as improper character evidence, Plaintiff misstates rules governing discovery. Information within the scope of discovery need not be admissible in evidence to be discoverable.

To the extent that Plaintiff appears to argue that this rule does not apply if a privilege applies (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546 [information, unless privileged, is discoverable if it might reasonably lead to admissible evidence]), this argument is unclear. Plaintiff appears to conflate between a privilege and the right to privacy (the focus of the motion being the latter), but the right to privacy is not itself a privilege. (See Evidence Code section 900 et seq. for exclusive statutory source of recognized privileges.)[17]

[1] The court would have granted monetary sanctions due to Plaintiff’s motion not even meeting its burden nor addressing instructive cases on the issue. But as the Colleges does not seek monetary sanctions against Plaintiff and/or Plaintiff’s Counsel, the court does not impose any upon Plaintiff’s Counsel.

[2] Opp. p. 12:23-14.

[3] The factual background of the case will be updated upon a subsequent ruling using allegations found in the SAC.

[4] Neither party provided an analysis (i.e., comparing facts of this case to those cited).

[5] The instant motion now complies with CRC Rule 3.1324 as it provides a copy of the proposed amendment that shows what allegations will be deleted and what allegations will be added.

[6] Counsel Kim’s declaration still does not provide exactly what information Plaintiff provided during the client interviews and why Plaintiff could not previously provide that information. For example, there is no statement that Plaintiff looked through emails or texts to find certain statements made by Defendant’s employees or interactions he forgot to tell his attorney about. Frankly, the allegations forming the new COAs are boilerplate and do not contain different material facts, evidencing the two new causes of action could have been previously alleged.

[7] In its discussion section on prejudice, the Colleges cites to P&D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332 (Opp. p. 10), but that case focused on unreasonable delay. (Id. at p. 1345 [“The court's ruling was based on unreasonable delay.”].) Even taking P&D, there, the appellate court affirmed the trial court’s decision in denying leave to amend the complaint because the plaintiff waited until the trial readiness conference to make that request, one that “would require additional discovery and perhaps result in a demurrer or other pretrial motion.” (Ibid.) Here, as stated above, the case is in the beginning stages.

[8] Estate of Murphy, supra, 82 Cal.App.3d at p. 311.

[9] Plaintiff does not provide the statute under which he brings forth the motion.

[10] Personnel files generally contain person data including, but not limited to, where a person was born, name of parents, residences, results of examinations, and evaluations of work performance. (Department of the Air Force v. Rose (1976) 425 U.S. 352, 369.)

[11] "'Issues do not have a life of their own: If they are not raised or supported by argument or citation to authority, [they are] ... waived.' [internal citation omitted.] It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness. When [a party] fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived." (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 838, 852.) Should Plaintiff not provide a thorough analysis supported by instructive authority, future arguments will be deemed waived by this court.

[12] While Board of Trustees was overturned by Williams, it was only to the extent that the case assumes, without conducting the inquiry required by Hill, that a compelling interest or compelling need is required automatically when private information is sought.

[13] Defendant cites to federal cases because no California state court appears to have addressed this precise question of whether an employee has a reasonable expectation of privacy in his personnel records in an employment dispute. (Opp. p. 9, fn. 2.) From the court’s research, that appears to be correct. While an employee does have a reasonable expectation of privacy in one’s personnel files, that appears to for a public employee, not, as here, a private employee. (See e.g., Teamsters Local 856 v. Priceless, LLC (2003) 112 Cal.App.4th 1500, 1514-155, citing former Gov. Code, § 6254, subd. (c) [reliance on the fact that the California Public Records Act’s (CPRA) exemption of the disclosure of one’s personnel file as basis to determine reasonable expectation of privacy, but CPRA promotes disclosure of the conduct of governmental operations]; see also Detroit Edison Co. v. NLRB (1979) 440 U.S. 301, 319, fn. 16 [“A person's interest in preserving the confidentiality of sensitive information contained in his personnel files has been given forceful recognition in both federal and state legislation governing the recordkeeping activities of public employers and agencies.”].)

[14] Plaintiff has already agreed to provide medical records and documents reflecting his pay. (Motion p. 3, Opp. p. 5:17-18.) Thus, any concerns about privacy with disclosure of his salary are moot.

[15] Neither party explained the work Test-Rite engages in. The court, on its own motion, takes judicial notice of the corporation’s Statement of Information as provided by the Office of the Secretary State. This document is judicially noticeable pursuant to Evidence Code section 452, subdivision (c), because it is an official act of the Secretary State, a constitutional officer in the executive branch of government and subdivision (h) as it is capable of “immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (See Evidence Code section 452.)

[16] Presumption is also based on Plaintiff being hired because of previous work experience (i.e., campus security officer is a physical job).

[17] See e.g., Header A ‘Defendant’s Subpoenas Violate Plaintiff’s Right to Privacy;’ Header C ‘Plaintiff Employee has not Waived his Right to Privacy by Initiating a Legal Action.’ Evidence Code section 900 provides the exclusive statutory source of recognized privileges. (See also Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 656.) While the Constitution is the ultimate authority on compelled testimonial disclosure or production and thus may require courts to recognize other forms of protection (e.g., constitutional right to privacy), those are still not privileges.