Judge: David Sotelo, Case: 20STCV23430, Date: 2022-10-11 Tentative Ruling
Case Number: 20STCV23430 Hearing Date: October 11, 2022 Dept: 40
MOVING PARTY: Plaintiff Luz
Hernandez.
Plaintiffs Grace Fitzmaurice and Luz Hernandez each allege independent
Breach of Contract claims and Luz Hernandez makes six separate Fair Employment
and Housing Act (“FEHA”) claims, all against Defendants Montebello Unified
School District (“MUSD”), Doe 1 (Cleve Pell), Doe 2 (Dr. Angel Gallardo).
Plaintiff Hernandez alone makes this opposed Motion to Quash
Defendant MUSD’s Subpoena for Production of Business Records (the “Edjoin
Subpoena”), served on “Edjoin, c/o Karen Stapf Walters, Cal. Cnty.
Superintendents Educ. Svcs. Assn. - 1121 L St #510, Sacramento, CA 95814” on
June 23, 2022, seeking any and all documents showing that Hernandez made
efforts to mitigate her loss of wages damages sought against Defendant MUSD.
Plaintiff Luz Hernandez claims she worked for the MUSD in a
variety of capacities between 1985 and 2019—including Acting Principal of
Schurr Adult School, overseer for the Comprehensive Adult Student Assessment
System (CASAS) program at Ford Park and Montebello adult schools, and trainer
for Grade Level Intervention Team trainings.
In January 2014, Hernandez claims to have suffered a
work-related injury when the contents of three shelves of a bookcase fell on her,
causing her to seek medical advice as a result. In February 2014, the Director
of the Adult Department stripped Hernandez of her administrative
responsibilities, including her Montebello Adult and CASAS duties. Hernandez was
reassigned to several schools within the MUSD—sometimes without the MUSD’s Board’s
approval—including assignments requiring physical labor exceeding the physical restrictions
set by Hernandez’s doctor’s recommendation(s). For example, the MUSD assigned
Hernandez to direct the Community Day School, which “served the most at-risk
students who often had physical altercations with one another” and “often
required” “the principal” “to break up these fights.” Hernandez also felt
embarrassed by colleagues like Defendant Gallardo, who remarked that Hernandez
“can’t even pick up trash” due to her on-the-job injuries. Hernandez requested
an interactive accommodations meeting, which was ultimately scheduled for April
2018, at which time Hernandez—who was not allowed to participate in this
initial meeting—was told she “would have an interactive accommodations meeting
every four months, (which ultimately did not take place), and (2) a meeting if
a new principal was hired at Vail High School.” Hernandez brought her concerns
regarding the lack of an interactive accommodations meetings with Hernandez to Vail
High School Principal Horacio Perez, who ignored Hernandez’s requests for an accommodation
meeting. Hernandez found these circumstances so discriminatory and hostile that
she had no choice but to submit her retirement paperwork in June 2019. Hernandez
also filed a Complaint with the Department of Fair Employment and Housing on
June 19, 2019, which issued a Right to Sue letter the same day.
Based on these allegations, on June 19, 2020, Hernandez sues
in COA (2) a Breach of Contract, and six FEHA claims: (3) Failure to Prevent
Discrimination, Harassment, and Retaliation; (4) Disability Harassment; (5) Disability
Retaliation; (6) Disability Discrimination; (7) Failure to Engage in the Interactive
Process; and (8) Failure to Provide Reasonable Accommodations.
Plaintiff Hernandez this Motion to Quash Defendant’s
Subpoena for Production of Business Records, as served on “Edjoin, c/o Karen
Stapf Walters, Cal. Cnty. Superintendents Educ. Svcs. Assn. - 1121 L St #510, Sacramento,
CA 95814” on June 23, 2022. The subpoena for employment records seeks a
disclosure as “[a]ny and all DOCUMENTS constituting, reflecting, or referring
to LUZ HERNANDEZ aka LUZ HERNANDEZ-RICH, Date of Birth 12/17/1958, SSN [Omitted
by Court], regarding any and all employment paperwork, job applications,
resumes, job descriptions, employment history, job search histories, emails or
other DOCUMENTS between her and potential employers, login history, saved job
searches, metadata, and any and all DOCUMENTS saved in any login or related
program, readily traceable to LUZ HERNANDEZ using the above information.” The
MUSD seeks these disclosures to support their affirmative defense of Failure to
Mitigate damages against Plaintiff Hernandez, who seeks “lost earnings” against
the Defendants.
Service: Due to lack of prejudice, the Court finds
negligible merit to the MUSD’s argument regarding service on Ms. Hale and thus declines
to issue an Order on these grounds. (Opp’n, 6:19-7:15.)
Edjoin is “a website where educators may search for
employment positions[] and submit[] applications for teaching positions in
other school districts.” (Opp’n, 6:9-11 & Cohn Decl., ¶ 7, Exs. F, G.) The
Edjoin Subpoena requests:
Any and all DOCUMENTS constituting, reflecting, or referring
to LUZ HERNANDEZ aka LUZ HERNANDEZ-RICH, Date of Birth 12/17/1958, SSN [Omitted
by Court], regarding any and all employment paperwork, job applications,
resumes, job descriptions, employment history, job search histories, emails or
other DOCUMENTS between her and potential employers, login history, saved job
searches, metadata, and any and all DOCUMENTS saved in any login or related
program, readily traceable to LUZ HERNANDEZ using the above information.
The term “DOCUMENT” and “DOCUMENTS” as used in this request
and hereinafter refer to and mean resumes, job applications, job references,
job descriptions, drafts, saved searches, search histories, emails, internal
data descriptions, reports, photographs, witness statements, handwriting,
typewriting, drawing, graphs, charts, printing, photostating, communications,
photographing, computer impulses, microfilming, video recordings, audio
recordings, diaries, written reports, notes, and every other means of recording
upon any tangible thing and any form of communication or representation,
including letters, words, pictures, sounds or symbols, or a combination
thereof. The terms are broadly defined to include all originals of DOCUMENTS
and all reproductions, copies, facsimiles and drafts, and prior versions, and
both sides thereof, whether sent or received or not, of DOCUMENTS.
The Court first notes that, as a party to this action,
Hernandez is statutorily entitled to move for an order quashing the Edjoin Subpoena.
(See Code Civ. Proc., 1987.1, subd. (b)(1).)
Discussion
Hernandez argues that this Court should issue an Order quashing
the Edjoin Subpoena for two general reasons: The Edjoin Subpoena invades
Hernandez’s right to privacy in her employment records because the subpoena “1)
… requires production of employment records that neither relate to Ms.
Hernandez’[s] claims in this lawsuit, nor to Defendant[]s[’] affirmative
defenses” and “2) would be highly intrusive to Plaintiff Hernandez’s privacy
rights.” (Mot., 4:16-18; see Mot. 5:22-6:18 generally.) Elaborating on the
first point, Hernandez argues that the records sought in the Edjoin Subpoena
are neither relevant to this action nor necessitated by a compelling need for their
production insofar as the MUSD may seek to use these records as “inadmissible
character evidence” to dispute “Ms. Hernandez had the skills and qualifications
for her position while working for Defendants, and whether she accurate
represented those skills and qualifications to Defendants.” (Mot., 5:13-20; see
Mot., 4:19-5:23 generally.) Elaborating on the second point, Hernandez argues
that “[s]erving this subpoena on Ms. Hernandez’ [sic] and forcing her to
disclose her employment history would notify Defendant of [Hernandez’s]
personal information and may adversely affect Ms. Hernandez current and ongoing
employment.” (Mot., 6:3-7; see Mot., 5:24-6:11.)
MUSD argues that “[t]he Court should deny Plaintiff’s
Motion, as this is an employment case in which Defendants seeks employment
records relevant to their affirmative defenses.” (Opp’n, 8:25-26.) More
specifically, the MUSD argues that “[d]irectly relevant to Defendants’
affirmative defense of failure to mitigate is the effort Plaintiff expended to
cover her lost wages” and that the MUSD’s “requests for [Hernandez’s] job applications,
resume, and the number of times she searched for positions on Edjoin are
relevant to determine the efforts she made to obtain similar employment.”
(Opp’n, 9:15-18; see First Amended Complaint, ¶¶ 52, 58, 67, 77, 91, 104, 116
[Hernandez’s seven causes of action seeking “lost earnings” in amount according
to proof at trial] & Prayer, ¶ 2 at 18:4 [Hernandez seeking “loss of
earnings” in amount according to proof at trial]; see also Sep. 24, 2021 MUSD
Answer, 2:18-21, Second Affirmative Defense, Mitigation of Damages [“Plaintiff
is not entitled to relief on the claims against Defendant because Plaintiff has
failed to take steps to mitigate her alleged damages, if any”]; Oct. 18, 2021
Gallardo Answer, 2:20-23 [same]; Dec. 15, 2021 Pell Answer, 2:20-23 [same].)
On Reply, Hernandez mentions that she “has also suffered
economic damages, including loss of income and benefits” but altogether fails
to connect her loss of earnings to a failure to mitigate those damages and the
need for the Edjoin Subpoena discovery to determine whether Hernandez in fact
attempted to mitigate her alleged loss of earnings.
Because the Edjoin Subpoena is overbroad in defining the
Documents it seeks, the Court GRANTS, in Part, as follows.
1. The Court
first finds that the requested discovery is clearly relevant to this action and
within the scope of discovery (Code Civ. Proc., § 2017.010) because the
discovery sought relates to whether Hernandez mitigated her damages—i.e., lost
earnings—and to the Defendants’ affirmative defense of Failure to Mitigate.
(See First Amended Complaint, ¶¶ 52, 58, 67, 77, 91, 104, 116 & Prayer, ¶ 2
at 18:4; see also Sep. 24, 2021 MUSD Answer, 2:18-21, Second Affirmative
Defense, Mitigation of Damages; Oct. 18, 2021 Gallardo Answer, 2:20-23 [same];
Dec. 15, 2021 Pell Answer, 2:20-23 [same].)
2. However, the
Court also finds that the Edjoin Subpoena is overbroad in defining “Document” and
thus GRANTS Hernandez’s Motion to Quash, in Part.
The Court limits paragraph 2 in Attachment 3 to the Edjoin
Subpoena (leaving paragraph 1 intact) by striking certain Document categories
as follows, with the deletions and single addition to the “Document”
description noted in brackets:
The term “DOCUMENT” and “DOCUMENTS” as used in this request
and hereinafter refer to and mean resumes, job applications, [stricken], job
descriptions, drafts, saved searches, search histories, emails [RELATED TO JOB
SEARCHES], [stricken], [stricken], [stricken], witness statements, [and] handwriting,
[stricken], [stricken], [stricken], [stricken], printing, [stricken], [stricken],
[stricken], [stricken], [stricken], [stricken], [stricken], [stricken], [stricken],
[stricken], and [stricken]. The terms are [stricken] defined to include all
originals of DOCUMENTS and all reproductions, copies, facsimiles and drafts,
and prior versions, and both sides thereof, whether sent or received or not, of
DOCUMENTS.
Plaintiff Luz Hernandez’s Motion to Quash Defendant’s
Subpoena for Production of Business Records is GRANTED, in Part, because the
Edjoin Subpoena is overbroad