Judge Jill Feeney, Case 21STCV11715 2023-02-16 Tentative Ruling

Judge: Jill Feeney, Case: 21STCV11715, Date: 2023-02-16 Tentative Ruling

Case Number: 21STCV11715 Hearing Date: February 16, 2023 Dept: 30

Department 30, Spring Street Courthouse

February 16, 2023

21STCV11715

Motion to Quash Defendants’ Subpoena for Employment Records filed by Plaintiff Iraj Rahim

DECISION

The motion is granted in part and denied in part.

Defendant’s subpoena must be modified to exclude tax records and to exclude Plaintiff’s social security number.

Moving party to provide notice and to file proof of service of such notice.

Background

This action for negligence arising from a vehicle collision which took place in April 2019. Plaintiff Iraj Rahim filed his Complaint against Defendants Edmundo G. Castro Alvarez and John Pierre Argueta.

On November 16, 2022 Plaintiff filed the instant motion to quash Defendants’ subpoena for employment records.

Summary

Moving Arguments

Plaintiff moves to quash Defendants’ subpoena for employment records on the grounds that (1) not all employment records are relevant to Plaintiff’s wage loss claim, (2) tax documents are privileged and must not be produced, and (3) Plaintiff’s social security number is irrelevant and confidential.

Opposing Arguments

Defendants argue that Plaintiff’s motion should be denied on procedural grounds because Plaintiff failed to meet and confer, Plaintiff’s notice of motion failed to cite Code Civ. Proc., section 1987.1, and Plaintiff’s motion was not reasonably made because he failed to meet and confer. Defendants argue Plaintiff’s motion should be denied on substantive grounds because the subpoena is not vague and the requested documents are relevant to the issue of Plaintiff’s earnings capacity. Defendants also argue that Plaintiff waived objections to the production of his employment records because he previously agreed to their production.

Reply Arguments

None.

Legal Standard

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.”¿

“[U]pon motion reasonably made by the party, judges may rule upon motions for quashing, modifying or compelling compliance with, subpoenas.”¿ (Lee v. Swansboro Country Property Owners Ass'n (2007) 151 Cal.App.4th 575, 582-583.)¿

[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. (Lantz v. Superior Court (1994) 28 Cal.App.4th 1839, 1854-1855 [internal quotes and citations omitted].)

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).)

Discussion

Plaintiff seeks to obtain an order quashing Defendants’ deposition subpoenas seeking production of Plaintiff’s employment and financial records from Plaintiff’s employer, Forplay Catalog. Defendants’ subpoena seeks:

“Any and all records, including but not limited to, work or employment records, wage records, personnel records, attendance records, employment applications, W-2S, W-4S, 1099S, taxes paid to any governmental authority on behalf of worker, resumes, curriculum vitae, certifications, licenses, training documents, payroll records, vacation, schedule, sick leave, benefits, retirement contributions, 401KS, pensions, SEP plans, profit sharing, disability documents, workers compensation documents, social security documents, evaluations and any other records, including but not limited to any records/documents that may be stored digitally and/or electronically pertaining to the employment of the worker Iraj Rahim noted herein regardless of date. Records should also include any and all documentation re: commissions, plaintiff’s income, salary, promotions, legal structure, corporate documents, wage loss, etc. From 2017 to present and any loans concerning plaintiff (viz. documents produced during discovery referenced “loan” but does not give details about terms, parties, rates, interest, borrower, lender, purpose, secured, unsecured, etc.) Any and all documents re: commissions plaintiffs earned in 2017.”

(Motion, Exh. A.)

Plaintiff’s Complaint seeks damages for wage loss and loss of earning capacity, among other damages.

Procedural Considerations

Defendants argue that Plaintiff’s motion should be denied because Plaintiff failed to meet and confer, failed to cite the controlling statute in his notice of motion, and makes this motion unreasonably because he failed to meet and confer.

There is no requirement that a party meet and confer before filing a motion to quash a subpoena served on a non-party. (See Code Civ. Proc. § 1985.3 [requiring an attempt at informal resolution only before the party propounding the subpoena moves to enforce the subpoena over objections].) Moreover, a discovery motion should not be denied automatically because the moving parties failed to meet and confer in good faith. (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 434.)

Here, Forplay Catalog is not a party to this action. Because there is no requirement that a party meet and confer before filing a motion to quash a subpoena served to a non-party, Defendants’ arguments pertaining to meet and confer efforts are without merit.

Defendants’ argument with respect to Plaintiff’s failure to cite Code Civ. Proc., section 1987.1 in his notice of motion is also without merit. Plaintiff cites the statute in the body of his memorandum of points and authorities.

Employment Records

Plaintiff argues that Defendants’ subpoena is overbroad because it requests an unlimited span of all personnel records, including irrelevant documents such as pre-employment records , physical examinations, incident reports, vacation records, disciplinary records, internal investigation records, and other records.

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 has placed his earning capacity and wages at issue by seeking such damages in his Complaint. Because his claims include damages for loss of earning capacity in addition to lost wages, Plaintiff’s employment records are relevant to show whether Plaintiff’s injuries from the subject collision has impacted Plaintiff’s performance at work. The subpoena is also properly limited in time from 2017 to the present. Plaintiff's motion to quash is denied on this ground.

Financial Records

Plaintiff also argues that Plaintiff’s tax documents and social security number are confidential and should not 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.)

Here, Defendants fail to explain why Plaintiff’s tax forms are necessary if the information can be obtained from other sources, such as payroll records already requested. The tax forms may not be produced as wage information can be obtained without these forms.

Plaintiff also objects to the disclosure of her social security number. Defendants do not make an argument with respect to the number. Hence, the motion is granted in this regard.