County of Los Angeles

Department 26

sharmel jackson,

Plaintiff,

kedren community health center, et al.

Defendants.

Case No.: 21STCV29683

Hearing Date: February 27, 2023

[TENTATIVE] order RE:

defendant’s motion to quash subpoena

Background

On August 11, 2021, Plaintiff Sharmel Jackson (“Plaintiff”) filed the instant employment discrimination action against Defendant Kedren Community Health Center, Inc. (“Defendant”). On March 3, 2022, Plaintiff filed the operative First Amended Complaint (“FAC”) against Defendant. The FAC asserts fourteen causes of action for (1) Failure to Pay Wages, (2) Failure to Pay Overtime Wages, (3) Failure to Pay Wages Due Upon Termination, (4) Failure to Issue Accurate Itemized Wage Statements, (5) Disability Discrimination, (6) Disability Discrimination – Failure to Provide Reasonable Accommodation, (7) Disability Discrimination – Failure to Engage in the Interactive Process, (8) Retaliation, (9) Failure to Prevent Harassment, Discrimination, and Retaliation, (10) Constructive Termination, (11) Intentional Infliction of Emotional Distress, (12) Whistleblower Action, (13) Failure to Reimburse Required Business Expenses, and (14) Unfair Business Practices.

On August 5, 2022, Defendant filed the instant motion to quash the subpoena directed to Verizon/VSAT. On February 17, 2023, Plaintiff filed an opposition. On February 17, 2023, Defendant filed a reply.

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

Defendant moves to quash the business records subpoena issues to Verizon/VSAT which seek the call records, text messages, data usage, and billing records associated with the phone number (323) 829-0075 from August 2017 to February 2021.

The Subpoena is Not Procedurally Improper

Defendant contends that the subpoena is procedurally improper because Plaintiff failed to provide timely notice under Code of Civil Procedure section 1985.3 to Defendant and at all affected persons.

Pursuant to Code of Civil Procedure section 1985.3, “[a] subpoenaing party must give notice to a consumer when seeking its personal records through a third party subpoena. (Code Civ. Proc., § 1985.3, subds. (b) & (e).)” (Thai v. Richmond City Center, L.P. (2022) 86 Cal.App.5th 282, 285.) The notice must be served ten days before being served on the third party if the notice is by mail. (CCP § 1985.3(b)(3).)

Here, Plaintiff served Defendant with the Subpoena and accompanying Notice to Consumer via mail on July 22, 2022. (Beale Decl. ¶ 2, Exh. A.) Thus, Defendant claims that the earliest that Plaintiff could have served Verizon/VSAT would be on August 1, 2022. However, as the subpoena was served on Verizon/VSAT on July 25, 2022, Defendant contends that the service is improper. (See Opp., Exh. 1.) Therefore, Defendant contends that the instant subpoena should be quashed. The Court disagrees.

The Notice requirement under Code of Civil Procedure section 1985.3 is inapplicable to the instant subpoena. Defendant is not a consumer under the statute. As noted under the statute, a “‘Consumer’ means any individual, partnership of five or fewer persons, association, or trust which has transacted business with, or has used the services of, the witness or for whom the witness has acted as agent or fiduciary.” (CCP § 1985.3(a)(2).) Defendant is a corporation and is therefore not a consumer entitled to notice under Code of Civil Procedure section 1985.3.

Defendant’s contention that Plaintiff failed to give notice to all affect persons because “[t]he scope of the subpoena includes records pertaining to those persons with whom the telephone number 3238290075 communicated[,]” (Motion at p.6:10-12), is similarly misplaced. The subpoena only requests records regarding the telephone number 3238290075. (Beale Decl. ¶ 2, Exh. A.) To the extent that information such as other phone numbers are included, this information does not constitute “personal records” under Code of Civil Procedure section 1985.3(a)(1). Personal records under the statue specifically refers “original, any copy of books, documents, other writings, or electronically stored information pertaining to a consumer …” (CCP § 1985.3(a)(1).) The phone numbers of phones that communicated with telephone number 3238290075 do not fall under this definition as they are not writings or electronically stored information pertaining to a consumer. Thus, no additional notice to unidentified consumers were required.

Privacy Interests

Defendant additionally contends that the subpoena to Verizon/VSAT should be quashed because it invades Defendant’s and Third Parties’ Right to Privacy.

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.)

Critically, however, “[t]he constitutional provision simply does not apply to corporations. The provision protects the privacy rights of people.” (Roberts v. Gulf Oil Corp. (1983) 147 Cal.App.3d 770, 791.) However, while no constitutional right of privacy exists as to corporations, “‘the nature and purposes of the corporate entity and the nature of the interest sought to be protected will determine the question whether under given facts the corporation per se has a protectible privacy interest....’ [Citation] It is clear to us that the law is developing in the direction that the strength of the privacy right being asserted by a nonhuman entity depends on the circumstances. Two critical factors are the strength of the nexus between the artificial entity and human beings and the context in which the controversy arises.” (Ameri-Medical Corp. v. Workers' Comp. Appeals Bd. (1996) 42 Cal.App.4th 1260, 1288.)

Here, the phone number at issue was Plaintiff’s work phone number while working for Defendant. Defendant as a corporation has no privacy interest in the phone absent the nexus between the party who used the phone during the relevant time period. As the privacy interest would to the extent it exist for Defendant be tied to Plaintiff – who used it during that time period – there is no invasion of privacy for Plaintiff to request such documents. Moreover, any modicum of privacy is outweighed as the records sought are clearly relevant to the case. The FAC alleges that Defendant would call Plaintiff off hours and would not reimburse Plaintiff for those calls. (FAC ¶¶ 15-16.) Accordingly, the relevance of the records outweighs the unidentified privacy interest in the phone records for Plaintiff’s work phone.

Sanctions

In opposition, Plaintiff requests sanctions of $4,725.00 against Defendant 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.)
Here, there is no evidence that the instant motion was brought in bad faith. Nor was the motion brought without substantial justification. Accordingly, the request for sanctions is DENIED.

CONCLUSION AND ORDER

Based on the foregoing, Defendant Kedren Community Health Center, Inc.’s motion to quash subpoena for production of business records of Verizon/VSAT is DENIED.

Plaintiff’s request for sanctions is DENIED.

The Moving Party is ordered to provide notice and file proof of service of such.

DATED: February 27, 2023 ___________________________

Elaine Lu

Judge of the Superior Court