Judge: Elaine Lu, Case: 19STCV34805, Date: 2023-05-23 Tentative Ruling

Case Number: 19STCV34805    Hearing Date: May 23, 2023    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Procedural Background

On September 30, 2019, Plaintiff Ana Rubio (“Plaintiff”) filed the instant wrongful termination actions against defendants Partnership Staffing Solutions dba PSS, Saputo Cheese USA, Inc. (“Saputo”), Saputo Dairy Foods USA, LLC[1], and Abel Duron (“Duron”).  The complaint asserts five causes of action for (1) Gender Discrimination, (2) Sexual Harassment/Hostile Work Environment, (3) Failure to Prevent Sexual Harassment/Hostile Work Environment, (4) Retaliation, and (5) Wrongful Termination.  On December 12, 2019, Plaintiff filed a Doe amendment to the complaint correcting the name Partnership Staffing Solutions dba PSS to Partnership, Inc. dba Partnership Staffing Solutions, Inc. dba PSS (“PSS”).

On November 9, 2022, Plaintiff filed the instant motion to quash deposition subpoenas that Defendant Saputo has issued to third parties.  On February 24, 2023, the Court held an informal discovery conference.  At the conclusion of the informal discovery conference, the Court ordered the parties to further meet and confer regarding the instant motion and to file a joint statement regarding what issues, if any, the parties resolved through their further meet and confer efforts.  On May 10, 2023, Defendant Saputo filed an opposition.  In addition, on May 10, 2023, the parties filed a joint statement as to the remaining items in dispute for the instant motion.  On May 16, 2023, Plaintiff filed a reply.

Allegations of the Operative Complaint

            The Complaint alleges that:

            Plaintiff was employed by Defendants PSS and Saputo from September 2, 2016 until October 2, 2017 as a warehouse packer.  (Complaint ¶ 11.) 

            “Beginning in or around April 2017, [Plaintiff] began being subjected to sexual harassment by her co-worker, Mr. Abel Duron. Mr. Duron would regularly make inappropriate comments to and physical contact with [Plaintiff], such as moving his body too closely behind [Plaintiff] and touching her backside with his erect penis while telling her how ‘pretty’ she was.”  (Id. ¶ 12.)  Despite the constant objections from Plaintiff, Duron’s harassment of Plaintiff continued.  (Id. ¶ 13.) 

            “Towards the end of April, [Plaintiff] had to take time off of work for to care for her terminally ill father in Mexico. Upon informing Lydia in Human Resources, Lydia advised her ‘if you leave, you come back at square one.’”  (Id. ¶ 14.)  “End of May 2017, [Plaintiff]’s father passes away and she request[ed] time to attend her father’s funeral.”  (Id. ¶ 15.)

            “In August 2017, after months of being subjected to inappropriate behavior by Mr. Duron, and Mr. Duran physically assaulting and grabbed [Plaintiff]’s buttocks, [Plaintiff] proceeded to complain to Human Resources about the harassment she had been subjected to over the last 4 months. However, again no corrective actions were taken by Defendants.”  (Id. ¶ 16.)

            “In September 2017, [Plaintiff] applied for an internal position. However, she was told she was not qualified because she could not get along with her coworkers.”  (Id. ¶ 17.)  “Shortly thereafter, Ms. Rubio was terminated for ‘being with the agency too long’ without any incidents or further explanation.”  (Id. ¶ 18.)

Legal Standard

Where the witness whose deposition is sought is not a party, a subpoena must be served to compel his or her attendance, testimony, or production of documents.  (CCP § 2020.010(b).) A deposition subpoena may request (1) only the attendance and testimony of a deponent, (2) only the production of business records for copying, or (3) the attendance and testimony, as well as the production of business records.  (CCP § 2020.020.)  “A deposition subpoena that commands only the production of business records for copying shall designate the business records to be produced either by specifically describing each individual item or by reasonably particularizing each category of item . . .”  (CCP § 2020.410(a).)  The court, upon motion or the court’s own motion, “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.”  (CCP § 1987.1(a).)  In addition, the court may make any other orders as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.”  (CCP § 1987.1(a).) 

Pursuant to Code of Civil Procedure section 2017.010:

Unless otherwise limited by order of the court…any 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.  Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action.  Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.

(Ibid.)

“‘[F]or discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement’ and ‘[a]dmissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence.’  These rules are applied liberally in favor of discovery . . . and (contrary to popular belief) fishing expeditions are permissible in some cases.”  (Cruz v. Superior Court (2004) 121 Cal.App.4th 646, 653, [internal citations omitted].) 

Discussion

            On October 12, 2022, Defendant Saputo issued the challenged subpoenas for Plaintiff’s medical records from Harbor Free Clinic: Adult Center and Harbor UCLA Medical Center, and Plaintiff’s employment records from her former employer Quest Nutrition and Plaintiff’s current employer Teledyne Technologies (“Teledyne”).  (Torres Decl. ¶¶ 6-9, Exhs. 2-5.)  Pursuant to the joint statement filed by the parties, only part of the subpoena to Plaintiff’s current employer Teledyne remains at issue.  Specifically, request numbers 1, 2, 6, 7, and 8.

Request No. 7

            “All job descriptions for any position held by RUBIO[.]” (Teledyne Subpoena Request No. 7.)

            As the joint statement notes, Plaintiff contends that this request is irrelevant and that any records showing Plaintiff’s current employment can be obtained through Plaintiff’s testimony.

            “[A]ny party may obtain discovery regarding any matters, 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.”  (CCP § 2017.010.)  “[A]n implicit waiver of a party's constitutional rights encompasses only discovery directly relevant to the plaintiff's claim and essential to the fair resolution of the lawsuit.”  (Vinson v. Superior Court (1987) 43 Cal.3d 833, 842.)  However, discovery should not be denied if the information sought has any relevance to the subject matter. Thus, while relevancy is a possible ground for an objection, it is difficult to adequately justify it.  (See generally Coy v. Superior Court of Contra Costa County (1962) 58 Cal.2d 210, 217.)  “These rules are applied liberally in favor of discovery, and (contrary to popular belief), fishing expeditions are permissible in some cases.”  (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546 [internal citation omitted].)  However, “[a]s between parties to litigation and nonparties, the burden of discovery should be placed on the latter only if the former do not possess the material sought to be discovered. An exception to this may exist where a showing is made the material obtained from the party is unreliable and may be subject to impeachment by material in possession of the nonparty.”  (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 225.)

            Here, Plaintiff claims loss of future wages and earnings.  (Complaint, Prayer at ¶ 1.)  Accordingly, information regarding Plaintiff’s current employment is directly relevant to Plaintiff’s claim of ongoing and future damages.  For example, the subpoenaed records may reveal that Plaintiff’s current overall pay may be similar or comparable to Plaintiff’s former compensation during her employment with Defendants or may reveal that Plaintiff’s current employment entails significantly less job duties and fewer work hours, all of which mitigates Plaintiff’s claimed loss of future wages and earning.  Thus, the information sought from Teledyne in request no. 7 is relevant.

            Moreover, Plaintiff likely has possession of the information sought concerning Plaintiff’s job description and any positions held by Plaintiff, Defendant Saputo is entitled to test the accuracy of the information it receives from Plaintiff herself for purposes of impeachment.  Indeed, at her deposition, Plaintiff was asked whether she had been convicted of any crimes and had lied on an employment application stating that she had never been convicted of a felony or misdemeanor.  Plaintiff responded in the negative.  (Black Decl. ¶ 17, Exh. Q [Plaintiff Depo. at pp.20:9-10, 31:2-13].)  However, when later pressed Plaintiff admitted that she had in fact been convicted of a misdemeanor.  (Black Decl. ¶ 17, Exh. Q [Plaintiff Depo. at pp.35:18-37:8].)  As such, there is some indication that Plaintiff’s discovery responses may be unreliable, and Plaintiff cites insufficient justification to preclude Saputo from testing the veracity of her responses.  Therefore, confirming Plaintiff’s current employment information through a third party is reasonable.

            Accordingly, there is no basis to deny discovery as to request no. 7.

Requests 1, 2, 6, and 8

            “All personnel files maintained for RUBIO, including but limited to any evaluations, written warnings, or other disciplinary records for RUBIO.”  (Teledyne Subpoena Request No. 1.)

            “All email, diaries, journal entries, or other notes not stored in ANA RUBIO’s personnel file, including but limited to any evaluations, written warnings, or other disciplinary records for RUBIO.”  (Teledyne Subpoena Request No. 2.)

            “All documents referring to any claims, charges, grievances or lawsuits involving any dispute with RUBIO.”  (Teledyne Subpoena Request No. 6.)

            “All documents referring to RUBIO’s hiring and separation of employment.”  (Teledyne Subpoena Request No. 8.)

            As noted in the joint statement as to request no. 8, Defendant Saputo has agreed to limit the request to “All documents referring to RUBIO’s separation of employment.”

            In sum, each of these categories requests that Teledyne produce Plaintiff’s employment records.  Plaintiff urges the Court to quash each of these requests for production of records based on Plaintiff’s right to privacy in her employee and personnel records.

            The right of privacy in the California Constitution (art. I, § 1), “protects the individual's reasonable expectation of privacy against a serious invasion.”  (Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1250 [italics in original]; See Williams v. Superior Court (2017) 3 Cal.5th 531, 552 [“In Hill, we established a framework for evaluating potential invasions of privacy. The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious.  The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations.”].)

            As the Supreme Court has “previously observed, the right of privacy extends to sexual relations (Vinson v. Superior Court, supra, 43 Cal.3d at p. 841, 239) and medical records (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 41.).”  (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1198.)  Similarly, the constitutional right to freedom of association requires protection of a person’s membership in associations, whether they pertain to religious, political, economic, or even purely social matters.  (Britt v. Superior Court (1978) 20 Cal.3d 844, 852; see also Pacific-Union Club v. Superior Court (1991) 232 Cal.App.3d 60, 71.)  Further, “‘Courts have frequently recognized that individuals have a substantial interest in the privacy of their home.’ [Citation.]”  (Puerto, supra, 158 Cal.App.4th at p.1252.)

            In establishing a privacy interest “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 must weigh the countervailing interests the opposing party identifies, as Hill requires.”  (Williams, supra, 3 Cal.5th 531, 557.)  “Only obvious invasions of interests fundamental to personal autonomy must be supported by a compelling interest.”  (Ibid.)

            Thus, the burden falls first on Plaintiff as the objecting party to show the extent and seriousness of the prospective invasion. It is clear that there is a privacy interest in employment records. (See Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 528 disapproved on other grounds by Williams v. Superior Court (2017) 3 Cal.5th 531, 557, Fn. 8, [finding that confidential personnel files at a person's place of employment are within the zone of privacy.]; accord El Dorado Savings & Loan Assn. v. Superior Court (1987) 190 Cal.App.3d 342, 344 disapproved on other grounds by Williams v. Superior Court (2017) 3 Cal.5th 531, 557, Fn. 8.)  However, contrary to Plaintiff’s contention, there is no automatic requirement that Defendant show a compelling need to gain access to Plaintiff’s employment personnel files.  Notably, Williams has directly overruled the case law Plaintiff cites, such as Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, “to the extent [those cases] assume, without conducting the inquiry Hill requires, that a compelling interest or compelling need automatically is required.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 557, Fn. 8.) 

            Though there is some privacy interest in the requested documents, Plaintiff has failed to show the seriousness of the resulting invasion.  Moreover, Plaintiff does not contend that the employment records contain particularly sensitive matters or involve the privacy interests of third parties.  (See Volkswagen of America, Inc. v. Superior Court (2006) 139 Cal.App.4th 1481, 1492 [“the cases that have approved a heightened standard are concerned primarily with protecting particularly sensitive matters, such as sexual or psychiatric histories, or the privacy interests of third parties.”].)  Regardless, while a compelling need is not necessary, the documents sought must still be sufficiently relevant in balancing disclosure to the right of privacy that exists in Plaintiff’s employment records with her current employer.

            Here, Defendant Saputo asserts that the records are relevant to Plaintiff’s damages claim of future economic damages and ongoing mental damages.  (See Complaint ¶¶ 27, 28, 35, 36, 43, 44, 52, 53, 59-60.)  Specifically, that “[w]hether Plaintiff is likely to continue in that employment, her prospects for advancement, what her job entails, internal grievances, and the potential for and/or her actual termination or other adverse employment action(s) would tend to prove or disprove the amount of any backpay and future damages Plaintiff may claim.”  (Opp. at pp.4:28-5:3.)  In addition, Defendant Saputo asserts  that the employment documents such as disciplinary records, performance reviews, internal complaints, internal grievances and disputes with her employer, and Plaintiff’s separation, if any would be relevant to Plaintiff’s mental status.  “[B]y asserting a causal link between her mental distress and defendants' conduct, plaintiff implicitly claims it was not caused by a preexisting mental condition, thereby raising the question of alternative sources for the distress.”  (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.)  As such, evidence regarding other possible causes of Plaintiff’s current mental distress is directly relevant to the instant action.   

            Request 6, which seeks any claims, charges, grievances or lawsuits involving Plaintiff is directly relevant to Plaintiff’s claims of economic and mental damages.  As the judicially noticed record reflects, Plaintiff has filed two lawsuits after the instant action – Ana Rubio v. Clougherty Packing LLC and Lilianna Sanchez, Los Angeles Superior Court Case No. 19STCV34803 and Ana Rubio v. Personnel Staffing Group, LLC, Ameripride Services, Inc., and Talentone Recruitment & Staffing Specialists, Los Angeles Superior Court Case No. 20STCV13057 – which both allege and seek damages for ongoing mental suffering and future economic damages.  (RJN No. 3; Black Decl. ¶ 17, Exh. O.)  Therefore, Plaintiff herself has identified other potential causes for her ongoing mental suffering and future economic damages.  Any claims, charges, grievances or lawsuits are clearly relevant as to the existence of alternative causes of Plaintiff’s alleged ongoing economic and emotional damages.  Moreover, any privacy interest in such claims is minimal and clearly outweighed by the needs of the instant action because Plaintiff has put alternative causes of ongoing economic and emotional damages at issue.

            Similarly, as to request 8, information about any separation from Teledyne, including whether Plaintiff is still employed by Teledyne, is clearly relevant to ongoing economic damages.  Further, any documents regarding separation – if they exist – would likely set forth alternative causes for any ongoing emotional damages that Plaintiff is suffering. 

            However, as to the remaining requests at issue, Defendant Saputo’s reasoning and evidence is insufficient to support the entirety of the documents sought.  Request 1 seeks every document in Plaintiff’s personnel file.  Similarly, Request 2 seeks all documents outside Plaintiff’s personnel file.  These requests are clearly overbroad.  Requests 1 and 2 extend far beyond information that would be relevant for Plaintiff’s future economic and mental damages.  The records involving Plaintiff’s pay, job duties, and any separation from Teledyne, which would be relevant in calculating Plaintiff’s future economic damages, are already covered under the above requests and the requests no longer at issue per the joint statement.

            In contrast, documents such as performance reports, internal work emails, disciplinary records, etc. are not relevant to Plaintiff’s economic damages.  At most, Defendant Saputo speculates that all of the documents from Plaintiff’s current employer might contain some evidence relevant to Plaintiff’s claim of ongoing damages.  This is insufficient to overcome Plaintiff’s privacy interest in these documents.  (See Board of Trustees, supra, 119 Cal.App.3d at p, 528.)  Defendant Saputo has failed to show that its need for such evidence outweighs Plaintiff’s privacy interest in these records. “Mere speculation as to the possibility that some portion of the records might be relevant to some substantive issue does not suffice.”  (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1017.)

            Accordingly, Plaintiff’s motion to quash is granted as to requests no. 1 and no. 2 to Teledyne and otherwise denied.

Sanctions

Plaintiff requests sanctions of $4,610.00 against Defendant Saputo and its counsel of record. 

“[I]n making an order pursuant to motion made under subdivision (c) of Section 1987 or under Section 1987.1, 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.”  (CCP § 1987.2(a).)  “An award for sanctions based on bad faith generally requires a subjective element of bad faith.”  (Evilsizor v. Sweeney (2014) 230 Cal.App.4th 1304, 1311.)  “‘Substantial justification’ means ‘that a justification is clearly reasonable because it is well grounded in both law and fact.’ [Citation.]”  (Id. at p.1312.)  Further, the Court may issue sanctions for misuse of the discovery process for failing to meet and confer.  (CCP §§ 2023.010(i), 2023.030(a).) 

Per Plaintiff’s Counsel’s declaration, Plaintiff attempted to meet and confer on November 1, 2022, but Defendant Saputo’s Counsel failed to respond before filing the instant motion on November 9, 2022.  (Torres Decl. ¶¶ 10-14, Exh. 6.)  Defendant Saputo’s Counsel states that the failure to timely respond to the meet and confer was in error.  (Black Decl. ¶ 21.)  Given that the parties did eventually meet and confer and resolve most of their issues regarding the subpoenas, the Court finds that Defendant Saputo’s Counsel’s failure to timely respond to the meet and confer efforts resulted from an oversight not warranting sanctions.

Similarly, Plaintiff fails to show that Saputo opposed the instant motion in bad faith or without substantial justification.  Notably, the results of the Court’s ruling is mixed, and Plaintiff’s motion seeks to quash the subpoena with respect to certain records to which Defendant Saputo is entitled.  Nor does Plaintiff show that the subpoena was oppressive.  Plaintiff did place her a portion of current employment records at issue by bringing the instant action and claiming ongoing mental and economic damages.  Accordingly, Plaintiff’s request for sanctions is DENIED.

CONCLUSION AND ORDER

            Based on the foregoing, Plaintiff Ana Rubio’s motion to quash deposition subpoenas is GRANTED IN PART.

            The subpoena Saputo Cheese USA, Inc. issued to Teledyne Technologies is limited as follows:

            4. All summary plan descriptions, plan booklets, and other documents setting forth    health, welfare, and retirement benefits for which RUBIO is/was eligible and/or received.  

            5. All documents referring to RUBIO’s compensation, including but not limited to         payroll records, pay stubs, time records, W-2s and overtime records;

            6. All documents referring to any claims, charges, grievances or lawsuits involving any dispute with RUBIO.

            7. All job descriptions for any position held by RUBIO; and

            8. All documents referring to RUBIO’s separation of employment.

            //

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            Plaintiff’s request for sanctions is DENIED.

            Moving Party is to give notice and file proof of service of such.

DATED:  May 23, 2023                                                         _____________________________

                                                                                                  Elaine Lu

                                                                                                  Judge of the Superior Court