Judge: Cynthia A Freeland, Case: 37-2022-00010632-CU-WT-NC, Date: 2023-09-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - September 28, 2023

09/29/2023  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  Wrongful Termination Motion Hearing (Civil) 37-2022-00010632-CU-WT-NC BUSALACCHI-RYDER VS SOLANA BEACH SCHOOL DISTRICT [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 08/31/2023

Plaintiff Lisa Busalacchi-Ryder ('Plaintiff')'s motion to quash: (1) the deposition subpoena of John Boesky, MFT, and (2) the medical subpoena and employment records subpoena propounded by Defendant Solana Beach School District ('Defendant') to Sumner County School District ('SCSD'), or, alternatively, for a protective order, is granted in part and denied in part.

Courts generally recognize that the right to discovery is broad, and disclosure is favored 'unless the request is clearly improper by virtue of well-established causes for denial.' Williams v. Sup. Ct. (2017) 3 Cal. 5th 531, 541. '[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, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.' Cal. Code Civ. P. § 2017.010. '[I]nformation is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating a settlement . . . .' Gonzalez v. Sup. Ct. (1995) 33 Cal. App. 4th 1539, 1546. Where a nonparty is involved, discovery must not be unduly burdensome nor merely a fishing expedition. See Calcor Space Facility, Inc. v. Sup. Ct.

(1997) 53 Cal. App. 4th 216, 225. Toward that end, California Code of Civil Procedure ('CCP') § 1987.1(a) provides that: If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, 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 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.

Cal. Code Civ. P. § 1987.1(a).

The court will address each subject subpoena in turn.

Deposition Subpoenas to Mr. Boesky On August 9, 2023, Defendant propounded a Deposition Subpoena for Production of Business Records to Mr. Boesky, asking that he produce the following records for the date range of January 1, 2017 to the present: (1) any and all therapy records, including but not limited to notes and summaries, pertaining to Calendar No.: Event ID:  TENTATIVE RULINGS

3015319 CASE NUMBER: CASE TITLE:  BUSALACCHI-RYDER VS SOLANA BEACH SCHOOL DISTRICT  37-2022-00010632-CU-WT-NC Plaintiff; (2) any and all facility billing records pertaining to Plaintiff; and (3) any and all therapy treatment billing records pertaining to Plaintiff. See Plaintiff's NOL, Ex. D. On August 17, 2023, Defendant propounded a Deposition Subpoena for Personal Appearance and Production of Documents and Things to Mr. Boesky, asking that he attend his deposition on September 18, 2023 and provide testimony and documents for the following categories for the date range of January 1, 2017 to the present: (1) any and all therapy records, including but not limited to notes and summaries, pertaining to Plaintiff; (2) any and all facility billing records pertaining to Plaintiff; (3) any and all therapy treatment billing records pertaining to Plaintiff; and (4) any and all written communications, including email, pertaining to Plaintiff. Ibid., Ex. E. Plaintiff moves to quash the foregoing Deposition Subpoenas on the grounds that the requested information and testimony violates her and Mr. Ryder's constitutional rights to privacy and is overly broad as requested.

The court finds that the Deposition Subpoenas to Mr. Boesky, in their present forms, must be modified/narrowed. More specifically, while the right to discovery is broad, it 'is not absolute, particularly where issues of privacy are involved. The right of privacy [is] in the California Constitution.' Puerto v. Sup. Ct. (2008) 158 Cal. App. 4th 1242, 1250 (citation omitted). Even relevant information may be shielded from discovery if it impermissibly impairs or seriously invades a person's constitutional privacy rights. See Cal. Const. Art. 1, § 1; Britt v. Sup. Ct. (San Diego Unified Port Dist.) (1978) 20 Cal. 3d 844, 855-856.

California recognizes a constitutional right to privacy in one's medical, psychiatric, and employment records. See Grafilo v. Soorani (2019) 41 Cal. App. 5th 497, 507; Bd. of Trustees of Leland Stanford Jr.

Univ. v. Super. Ct. (Dong) (1981) 119 Cal. App. 3d 516, 528-530; El Dorado Savings & Loan Assn. v. Super. Ct. (1987) 190 Cal. App. 3d 342, 346. A privacy interest in mental health records is particularly strong and has been afforded broader protections than other types of medical records. See Grafilo, 41 Cal. App. 5th at 507 (citing In re Lifschutz (1970) 2 Cal. 3d 415, 421-422; Susan S. v. Israels (1997) 55 Cal. App. 4th 1290, 1298-1299). However, the right to privacy is not absolute. See Hill v. Nat'l Collegiate Athletic Assn. (1994) 7 Cal. 4th 1, 7. The party alleging an invasion of privacy must establish each of the following: '(1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy.' Ibid. at 39-40. A party can prevail on an invasion to privacy claim by negating any of these elements or pleading and proving 'that the invasion of privacy is justified because it substantively furthers one or more countervailing interests.' Ibid. at 40. 'The showing required to overcome a privacy right depends on the nature of the privacy right asserted. In some cases, a compelling interest must be shown; while a simple balancing test is used in other situations.' Kirchmeyer v. Phillips (2016) 245 Cal. App. 4th 1394, 1403 (citing Hill, 7 Cal. 4th at 34-35). To overcome a right to privacy in medical and psychiatric records, the party seeking the information must demonstrate a compelling interest. See Cross v. Super. Ct. (2017) 11 Cal. App. 5th 305, 326; Manela v. Super. Ct. (2009) 177 Cal. App. 4th 1139, 1149. Even when a compelling interest is present, the proposed privacy invasion must still be narrowly tailored to protect the party's privacy to the fullest extent possible. Ibid. at 1151; John B. v. Super. Ct. (2006) 38 Cal. 4th 1177, 1199-1200.

In this case, the evidence shows that Plaintiff and Mr. Ryder began couples therapy with Mr. Boesky in 2018 to address issues including Mr. Ryder's emotional, verbal, and physical abuse of Plaintiff. See Sherman Decl., Ex. E. During this time, Plaintiff also sought individual therapy with Dr. Rakefet Benderly.

Ibid., Ex. F. Dr. Benderly diagnosed Plaintiff with adjustment disorder (unspecified) and partner relational difficulties. Ibid., Ex. G. She further testified that Plaintiff was experiencing partner relational difficulty.

The Ryders stopped seeing Mr. Boesky in February 2021. See Plaintiff's NOL, Exs. M-N. Plaintiff saw Dr. Benderly from the Fall of 2018 until approximately February 2023. Dr. Benderly testified that she received emails from, and exchanged telephone calls with, Mr. Boesky in 2019 and 2020 concerning, inter alia, Mr. Boesky's concerns for Plaintiff's well-being should she remain in her marriage. See Sherman Decl., Ex. J. In March 2021, Defendant commenced an investigation into the alleged conduct that led to Plaintiff's employment being terminated. Plaintiff was ultimately terminated in August 2021.

Form Interrogatory No. 212.2 asked Plaintiff to identify each physical, mental, or emotional injury she Calendar No.: Event ID:  TENTATIVE RULINGS

3015319 CASE NUMBER: CASE TITLE:  BUSALACCHI-RYDER VS SOLANA BEACH SCHOOL DISTRICT  37-2022-00010632-CU-WT-NC attributed to the adverse employment action and the area of her body affected. In response, Plaintiff stated '[w]eight gain, stress, reduced sleep, sadness, loss of confidence, decreased stamina, distrust, full body tension, headaches.' See Plaintiff's NOL, Ex. A. Plaintiff, in part, seeks emotional distress damages in this action. Consequently, Plaintiff has placed her mental health/emotional distress at issue in this case. See Davis v. Sup. Ct. (1992) 7 Cal. App. 4th 1008, 1014; Britt v. Sup. Ct. (1978) 20 Cal. 3d 844, 859.

The court finds that Plaintiff has demonstrated that both she and Mr. Ryder have a legally protected privacy interest and a reasonable expectation of privacy in the information sought by way of the Deposition Subpoenas to Mr. Boesky. As a result, Defendant must demonstrate that the information it seeks is directly relevant and that there is a compelling interest for disclosure of the information. In this case, the court finds that Defendant has failed to demonstrate a compelling need for any records to the extent they disclose Mr. Ryder's private and confidential mental/emotional/medical information.

Consequently, the Deposition Subpoenas must be modified to remove any such request. This includes any communications between Mr. Boesky and Dr. Benderly regarding Mr. Ryder's mental/emotional/medical information. That being said, the court agrees with Defendant that the cause(s) of Plaintiff's alleged emotional distress is highly relevant to this dispute. That would include the degree to which her emotional distress was caused by her employment issues as opposed to her marital issues. Accordingly, the court will permit the Deposition Subpoenas for the requested time period on the limited topic of the degree to which Plaintiff's stated weight gain, stress, reduced sleep, sadness, loss of confidence, decreased stamina, distrust, full body tension, and headaches were attributable to her marital issues. To the extent this may implicate Plaintiff's medical records unrelated to this litigation, the parties are directed to meet and confer on the appropriate protective order.

Accordingly, the court grants the motion in part and denies it in part as to the Deposition Subpoenas to Mr. Boesky as set forth above.

Deposition Subpoena to SCSD On August 10, 2023, Defendant propounded a Deposition Subpoena for Production of Business Records to SCSD, asking that it produce the following records for the date range of January 1, 2017 to the present: any and all employment records pertaining to Plaintiff including but not limited to email correspondence, notes, application for employment, pay stubs, salary and/or hourly pay records, benefit information, records and information relating to pension and/or retirement savings, disciplinary reports, employee file, and any other documents relating in any way to Plaintiff. See Sherman Decl., Ex. U.

California recognizes a constitutional right to privacy in one's employment records/personnel file. See Board of Trustees of Leland Stanford Jr. Univ. v. Sup. Ct. (Dong) (1981) 119 Cal. App. 3d 516, 528-530.

However, as with one's right to privacy in his or her mental health/medical records, the right is not absolute. See Hill, 7 Cal. 4th at 7. The party alleging an invasion of privacy must establish each of the following: '(1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy.' Ibid. at 39-40. A party can prevail on an invasion to privacy claim by negating any of these elements or pleading and proving 'that the invasion of privacy is justified because it substantively furthers one or more countervailing interests.' Ibid. at 40. 'The showing required to overcome a privacy right depends on the nature of the privacy right asserted. In some cases, a compelling interest must be shown; while a simple balancing test is used in other situations.' Kirchmeyer, 245 Cal. App. 4th at 1403 (citing Hill, 7 Cal. 4th at 34-35). Since one's employment records/personnel file does not invade an interest fundamental to personal autonomy, the court employs a balancing test to determine the right to discover such information. See Williams, 3 Cal. 5th at 577.

The court agrees with Defendant that the requested information is highly relevant to this litigation.

Notably, while Plaintiff contends that Defendant has already received the requested information and that Plaintiff will supplement the information as it becomes available, a review of Plaintiff's discovery responses reveals that she has not fully responded to Defendant's request. For example, Plaintiff has Calendar No.: Event ID:  TENTATIVE RULINGS

3015319 CASE NUMBER: CASE TITLE:  BUSALACCHI-RYDER VS SOLANA BEACH SCHOOL DISTRICT  37-2022-00010632-CU-WT-NC produced a salary schedule and responded with her estimated salary for the upcoming school year as well as limited information concerning her anticipated and/or actual benefits. See Sherman Decl., Ex. T.

Moreover, given that the records are sought from SCSD which Plaintiff, herself, has identified as her current employer, there is no less intrusive means to obtain the pertinent records than the subpoena at issue. That being said, the Deposition Subpoena seeks information relevant to, inter alia, the cause(s) of Plaintiff's separation from Defendant, Plaintiff's claims concerning her ability to obtain employment elsewhere and/or her efforts to mitigate damages, Plaintiff's economic damages, and Plaintiff's disciplinary history with SCSD, if any. Plaintiff is correct that Defendant may not be able to use Plaintiff's performance at SCSD to demonstrate that Plaintiff engaged in similar conduct when employed with Defendant. However, this is not an appropriate argument for the present motion's purposes. 'A claim that discovery is not warranted because the evidence disclosed would not itself be admissible is untenable. It is settled that admissibility is not prerequisite to discovery.' Volkswagen of America, Inc. v. Sup. Ct. (2006) 139 Cal. App. 4th 1481, 1490-1491.

Accordingly, the court denies the motion as to the Deposition Subpoena to SCSD.

In light of the foregoing, the court: (1) grants the motion in part and denies it in part as to the Deposition Subpoenas to Mr. Boesky as set forth herein, and (2) denies the motion as to the Deposition Subpoena to SCSD.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, September 29, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of September 29, 2023.

If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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