Judge Jill Feeney, Case 20STCV47965 2022-12-22 Tentative Ruling

This is an action for premises liability arising from an accident in December 2018 where Plaintiff was injured after part of a ceiling fell on her head and body. Plaintiff Celida Hernandez filed her Complaint against Sunset International, Inc. and Tacos Mexico, Inc. on December 15, 2020.

Plaintiff moves for a protective order limiting the scope of a subpoena issued to Plaintiff’s current employer, the Department of Public Social Services, by Defendant Tacos Mexico, Inc. (“Tacos Mexico”). Plaintiff argues the subpoena violates her right to privacy and seeks information that is not relevant to this matter. Plaintiff alleges that her current employer and personnel files are not relevant to the 2018 accident. Plaintiff also argues her financial information is privileged.

Tacos Mexico argues that the subpoena seeks information relevant to Plaintiff’s lost wages and future loss of earnings claims. Tacos Mexico additionally argues that Plaintiff’s right to discovery is not absolute, and that Plaintiff has not met the burden of showing good cause for a protective order.

“Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040. (Code Civ. Proc., section 2025.420, subd. (a).) The court, for good cause shown, may make any order “that justice requires” to protect any party from “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., section 2025.420, subd. (b).)

California Code of Civil Procedure section 1987.1, subdivision (a) states, “[i]f a subpoena requires the attendance of a witness or the production of books, documents, 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.”¿

[E]ven when discovery of private information is found directly relevant to the issues of ongoing litigation, it will not be automatically allowed; there must then be a careful balancing of the compelling public need for discovery against the fundamental right of privacy. . . . [I]f an intrusion on the right of privacy is deemed necessary under the circumstances of a particular case, any such intrusion should be the minimum intrusion necessary to achieve its objective . . . [meaning] the least intrusive means to satisfy the interest. Mere convenience of means or cost will not satisfy that test for that would make expediency and not the compelling interest the overriding value.

When evaluating invasions of the right to privacy in discovery, the party asserting a privacy right must establish “(1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy.” (Hill v. National Collegiate Athletic Assn. (1994) 26 Cal.Rptr.2d 834, 865.) A responding party may prevail by negating any of these three elements “or by pleading and proving, as an affirmative defense, that the invasion of privacy is justified because it substantively furthers one or more countervailing interests.” (Id.) “[T]he party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 533.) A court then balances these competing considerations. (Id.) As guidance in balancing these competing considerations, it should be noted, “[o]nly obvious invasions of interest fundamental to personal autonomy must be supported by a compelling interest.” (Id.) When lesser interests are at stake, “the strength of the countervailing interest sufficient to warrant disclosure of private information var[ies] according to the strength of the privacy interest itself, the seriousness of the invasion, and the availability of alternatives and protective measures.” (Id.)

California Code of Civil Procedure section 1987.2 provides that “the court may in its discretion award the amount of reasonable expenses incurred in making or opposing [a motion to quash], 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.” (Code Civ. Proc. section 1987.2(a).)

Any and all employment records, including but not limited to earnings, profits, commissions, bonuses, business income, salary, payroll, attendance, health records, workers’ compensation claims, medical information, employment records, job performance evaluations, date of hire, date and reason for termination, personnel records, and records related to employment or employee benefits, including any and all W2s and/or 1099’s regarding Celida Hernandez, born on January 15, 1978, with SS# UNK, from any and all dates. Employed at IHSS 2707 S Grand Ave Los Angeles, CA 90007.

California’s Constitutional right to privacy protects against the unwarranted, compelled disclosure of various private or sensitive information regarding one’s personal life. (Britt v. Superior Court (1978) 20 Cal.3d 844, 855-856.) This includes confidential personnel information. (Hooser v. Superior Court (2000) 84 Cal.App.4th 997, 1004; El Dorado Savings & Loan Assn. v. Superior Court (1987) 190 Cal.App.3d 342.)

Here, Plaintiff seeks to limit the scope of Tacos Mexico’s subpoena with respect to her employment records. Plaintiff supports her argument with conclusory statements that the subpoena violates her right to privacy. However, Plaintiff placed her future earning capacity at issue by alleging in her SAC that she suffered wage loss and a loss of earning capacity. Tacos Mexico has a legitimate discovery interest in determining whether Plaintiff’s injuries from the subject accident caused a loss of earning capacity. Tacos Mexico’s demands for Plaintiff’s wage and earnings information and other records pertaining to her health and attendance would reasonably lead to information about whether Plaintiff’s injuries continue to affect her ability to work and impacted her earnings capacity. Although Plaintiff proposes that information about her health could be obtained from her medical providers, her medical providers cannot provide information on how her injuries have impacted her performance at work. Thus, the records are relevant to her claims for lost earning capacity.

Plaintiff objects for the first time on reply to the disclosure of the names and addresses of the people she provides in-home care to and private conversations between Plaintiff and her employer. Because these records are the medical records of third-parties unrelated to the action, Plaintiff may properly require that the records be redacted from records to be produced.

The right to privacy also extends to an individual’s confidential financial information, including tax returns, checks, statements, or other account information. (Look v Penovatz (2019) 34 CA5th 61, 73.) A party seeking discovery of another party’s financial information must show that this information is directly relevant to a cause of action or defense, such that disclosure is essential to a fairly resolution of the lawsuit. (Id.)

Plaintiff also objects to the disclosure of her social security number. Tacos Mexico does not show that Plaintiff’s social security number is directly relevant to any cause of action or defense. Thus, Plaintiff may properly require that her social security number be redacted from any documents to be produced.