Judge: Gregory Keosian, Case: 20STCV19075, Date: 2023-03-30 Tentative Ruling

Case Number: 20STCV19075    Hearing Date: March 30, 2023    Dept: 61

Plaintiff Jane Doe’s Motion to Quash Deposition Subpoenas is DENIED. No sanctions are awarded.

I.                   MOTION TO QUASH DEPOSITION SUBPOENA

“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.” (Code Civ. Proc. § 1987.1, subd. (a).) A party may bring a motion under this section. (Code Civ. Proc. § 1987.1, subd. (b)(1).)

Plaintiff Jane Doe (Plaintiff) moves to quash several subpoenas issued by Defendant TPUSA-FHCS, Inc. (Defendant), to six of Plaintiff’s prior employers. Plaintiff claims that the notices to consumer were impermissibly served upon her by electronic mail, that they include private information about herself (including a portion of her social security number), and they encompass a broad intrusion into her private personnel information. (Motion at pp. 6–11.)

Defendant in opposition contends that the documents sought are relevant to the subject matter of this action, as they encompass records relevant to Plaintiff’s credibility, qualifications, mitigation of damages, and earning potential, based on her claim for lost income for wrongful termination. (Opposition at pp. 12–14.) Defendant contends that Plaintiff has waived her privacy concerns to the subject records by her filing of this action, and further contends that Plaintiff’s motion is untimely, as it was filed and served on the appointed date of production, and was not preceded by the service of any timely objections under Code of Civil Procedure § 1985.3. (Opposition at pp. 10–11.)

There was no defect of service of the subpoenas at issue here that warrants quashing the subpoenas. Plaintiff’s objection is that she was served with notices to consumer via email, when she has not consented to electronic service. (Plaintiff Decl. ¶¶ 3–4.) But there is no dispute that email service here gave Plaintiff timely, actual notice of the subpoenas, since Plaintiff reserved a date for the present motion to quash the day after the subpoenas were served. Plaintiff has thus received notice and an opportunity to be heard on her objections to the subpoena consistent with due process. (See People v. Silva (2021) 72 Cal.App.5^th 505, 523.) Under Code of Civil Procedure § 1985.3, it was unnecessary to obtain Plaintiff’s consent when such service has been accomplished. (Code Civ. Proc. § 1985.3, subd. (c).)[1]

Plaintiff’s motion is not untimely, however. Code of Civil Procedure § 1985.3 states that party-consumers whose records are sought by subpoena must provide notice of any motion to quash “at least five days prior to production,” but simultaneously states that the failure to provide notice “shall not invalidate the motion to quash,” but shall only operate as a defense for the subpoenaed party against liability for improper production. (Code Civ. Proc. § 1985.3, subd. (g).) Here, Plaintiff served the present motion after the appointed date of production (March 3), but Defendant concedes that only partial production of the documents requested has been made, and that the motion is thus not moot. (Opposition at p. 1.)

But even if Plaintiff’s motion isn’t moot, it is still unpersuasive, as Defendant’s need for the documents outweighs Plaintiff’s privacy interests. The requested documents consisted of the following categories:

1.      Resumes, job applications, or other employment histories

2.      Performance evaluations and disciplinary actions

3.      Documents showing Plaintiff’s hours worked

4.      Documents showing Plaintiff’s compensation

5.      Documents showing Plaintiff’s benefits

6.      Documents showing Plaintiff’s job titles, promotions, and demotions

7.      Documents related to Plaintiff’s termination

8.      Documents related to Plaintiff’s eligibility for rehire

9.      Plaintiff’s requests for time off or disability accommodations

10.  Complaints made by or against Doe during her employment

These documents are discoverable. Although employees generally have a privacy right in their personnel records (See El Dorado Savings & Loan v. Superior Court (1987) 190 Cal.App.3d 342, 345, overruled on other grounds in Williams v. Superior Court (2017) 3 Cal.5th 531.), in employment cases, “defendants are generally entitled to discover plaintiff’s previous employer’s payroll records and personnel files (including performance evaluations).” (Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2017) ¶ 19:684.) Indeed, “[e]vidence of the plaintiff's work history and earnings is a standard subject of discovery.” (Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 296 fn. 9.) The reasons are as described in Defendant’s opposition: Such documents are relevant to Plaintiff’s earning potential, mitigation of damages, and credibility. (Opposition at pp. 12–14.)

The motion to quash is therefore DENIED.

Defendant in opposition seeks sanctions under Code of Civil Procedure § 1987.2, which allows the court “in its discretion” to “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.” However, Plaintiff’s motion was founded on substantial objections based on service. No sanctions are awarded.

Defendant to provide notice.