Judge: Elaine Lu, Case: 22STCV29232, Date: 2024-03-05 Tentative Ruling

Case Number: 22STCV29232    Hearing Date: March 5, 2024    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Procedural Background

On September 8, 2022, Plaintiffs German Murillo, et al.[1] (collectively “Plaintiffs”) filed the instant breach of habitability action against Defendants Sunset Junior, LLC (“Defendant”) and Robert Eric Stabeck, as Trustee of the Rudolph Staback and Grace Staback inter vivos Trust (jointly “Defendants”).  On April 11, 2023, Plaintiffs filed the operative Second Amended Complaint (“SAC”) against Defendants.  The SAC asserts nine causes of action for (1) Breach of the Implied Warranty of Habitability, (2) Negligence, (3) Breach of the Covenant of Quiet Enjoyment, (4) Nuisance, (5) Intentional Infliction of Emotional Distress, (6) Violation of Business & Professions Code section 17200 et  seq., (7) Violation of Civil Code § 1942.4, (8) Violation of LAMC section 45.30 et seq, and (9) Violation of LAMC § 152.00 et seq.

On December 14, 2023, Plaintiff Lucas Herchenroeder (“Herchenroeder”) filed the instant motion to quash Defendant Sunset Junior, LLC’s (“Sunset”) subpoena to USC for Herchenroeder’s employment records.  On February 21, 2024, Defendant Sunset filed an opposition.  No reply has been filed.

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

            Plaintiff Herchenroeder contends that the subpoena for employment records to USC invades Herchenroeder’s right to privacy and should be quashed in its entirety.

            In his October 11, 2023 response to Defendant Sunset’s Form Interrogatory, 2.6, Plaintiff Herchenroeder identified USC as his employer.  (Derflinger Decl. ¶¶ 2-3, Exh. 1; Medina Decl. ¶ 4.)  On November 17, 2023, Defendant Sunset served a deposition subpoena on USC requesting:

All personnel records, payroll records, W-2s, W4s, application for employment, resumes, pre-employment exam records, incident reports, performance appraisals, awards, retirement benefits and any other documents which refer or relate to the within named individual, as an employee, independent contractor, or in any other capacity. Any and all records of any COMMUNICATIONS to and/or LUCAS HERCHENROEDER and/or his legal representative up until the present date (i.e. the date of production for the subject subpoena).

(Medina Decl. ¶ 5, Exh. A.)

            Plaintiff’s Counsel telephonically met and conferred with Defense Counsel on November 30, 2023 and sent a further meet and confer letter on December 11, 2023.  (Medina Decl. ¶¶ 6-7, Exh. C.)  However, Defense Counsel refused to agree to quash the subpoena.  (Medina Decl. ¶ 8.) 

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.)

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.)

            Here, 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.)  Thus – at a minimum – some relevance is required to support Defendant Sunset’s subpoena for the employment records.

            Here, Plaintiff Herchenroeder contends that there is no relevance at all because Plaintiff Herchenroeder admitted that he is not making a loss of earnings claim or loss of future earnings capacity claim in the instant action.  (Medina Decl. ¶ 4, Exh. B [responses to Requests for Admissions 40-41].)  In opposition, Defendant Sunset contends that the documents sought are nonetheless relevant because they relate to Plaintiff Herchenroeder’s claim of physical and emotional harm.

            In response to Defendant Sunset’s Form Interrogatory 6.2, Plaintiff Herchenroeder reported physical injuries consisting of “[b]reathing problems, chest pains” and emotional injuries consisting of “[a]nxiety, emotional distress, frustrated, inability to sleep, or focus.”  (Derflinger Decl. ¶ 4, Exh. 1 at Form Interrogatory 6.2.)  Defense Counsel claims that these claims of harm would likely be significantly detrimental to Herchenroeder’s employment with USC.  (Derflinger Decl. ¶ 4.)  Further, “Plaintiff Herchenroeder alleges receiving treatment for these conditions, but has few details regarding such treatment. In order to verify the legitimacy of Plaintiff’s claim, Defendant seeks documents from Plaintiff’s employer indicating reports of illness, missing days due to doctors appointments, doctors notes, or anything that may somehow verify Plaintiff’s complaint.” (Deflinger Decl. ¶ 5.) 

            While Plaintiff Herchenroeder’s claim of “[b]reathing problems, chest pains” and “[a]nxiety, emotional distress, frustrated, inability to sleep, or focus” may warrant some document production from Plaintiff’s employer, the request is overbroad.  Defendant Sunset puts forth no evidence why Plaintiff’s pay statements or employment tax records are relevant to the instant action or how these would prove or disprove Plaintiff Herchenroeder’s claim of physical or emotional injuries.  Thus, Defendant Sunset’s subpoena to USC must be limited to a more reasonable scope as follows:

All incident reports, performance appraisals, awards, and requests for medical/sick leave which refer or relate to the within named individual, as an employee, independent contractor, or in any other capacity. Any and all records of any COMMUNICATIONS to and/or from LUCAS HERCHENROEDER and/or his legal representative up until the present date (i.e. the date of production for the subject subpoena).

Sanctions

            Plaintiff requests sanctions of $800.00 against Defendant Sunset.  (Medina Decl. ¶ 9.) 

            “[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).) 

            The Court is of the view that a more robust meet and confer by real time conversation could have avoided the litigation of the instant motion.  In light of the mixed result of the instant motion, and the totality of the circumstances, no sanctions are warranted.  Thus, Plaintiff’s request for sanctions is DENIED.

CONCLUSIONS AND ORDER

Based on the foregoing, Plaintiff Lucas Herchenroeder’s motion to quash Defendant Sunset Junior, LLC’s subpoena to USC for Herchenroeder’s employment records is GRANTED IN PART.  The subpoena is modified to only include the requested documents as follows:

All incident reports, performance appraisals, awards, and requests for medical/sick leave which refer or relate to the within named individual, as an employee, independent contractor, or in any other capacity. Any and all records of any COMMUNICATIONS to and/or from LUCAS HERCHENROEDER and/or his legal representative up until the present date (i.e. the date of production for the subject subpoena).

Plaintiff’s request for sanctions is DENIED.

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

DATED:  March ___, 2024                                                    ___________________________

Elaine Lu

                                                                                          Judge of the Superior Court