Judge Kerry Bensinger, Case Number: 23STCV06111, Date: 2024-05-02 Tentative Ruling

Plaintiff Alison Cassidy (“Cassidy” or “Plaintiff”) was hired by WB Studio Enterprises, Inc. (“WB Studio”) as Manager of Food Service Operations in July 2021. Plaintiff’s supervisor was Director of Food Services Steve Caloca (“Caloca”). In February 2022, Plaintiff complained to human resources that Caloca was creating a hostile work environment. After making the complaint, Caloca undermined Plaintiff’s relationships with the rest of the staff, ignored her ideas, excluded her from important discussions, gave her job duties belonging to others, and did not credit Plaintiff for her ideas that were adopted. In September 2022, Plaintiff complained to human resources about Caloca’s retaliation. In October 2022, WB Studio terminated Plaintiff’s employment.

On March 20, 2023, Plaintiff filed a Complaint against WB Studio and Caloca (hereafter, Defendants”), for (1) Hostile Work Environment, (2) Retaliation, (3) Failure to Prevent Harassment and Retaliation, and (4) Wrongful Termination in Violation of Public Policy.

On November 8, 2023, the parties entered into a Joint Stipulation and Protective Order Re: Confidential Designation Only (“Protective Order”). The court signed the Protective Order on November 13, 2023.

On February 23, 2024, Plaintiff filed this motion to quash Defendants’ subpoenas directed at Plaintiff’s past employer and present employers, Level 8, Houston Hospitality LLC, Mann Gelon Glodney Gumerove Yee LLP, Bourbon Steak, and the Ming Group, LLC. Plaintiff does not seek sanctions.

On April 19, 2024, Defendants filed an opposition.[1] Defendants request sanctions.

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 such as unreasonable violations of the right of privacy.¿ (Code Civ. Proc., § 1987.1.)¿

Defendant issued a total of five subpoenas. The subpoenas are directed at Plaintiff’s past and present employers and contain the following identical categories:

1. Application for employment (or engagement as an independent contractor piece rate work or assignments, consultant, etc.), resume(s), and interview notes of CASSIDY;

2. DOCUMENTS and correspondence, electronic or otherwise, pertaining to offers of employment or engagement extended to CASSIDY;

3. DOCUMENTS and correspondence, electronic or otherwise, sent by CASSIDY in response to offers of employment (or engagement as an independent contractor, piece rate work or assignments, consultant, etc.);

4. DOCUMENTS and correspondence, electronic or otherwise, RELATING to reference checks for employment (or engagement as an independent contractor) of CASSIDY;

5. DOCUMENTS that reflect the job titles, duties, and compensation earned for each position CASSIDY applied for, and/or held;

7. Performance reviews and/or evaluations, warnings, and disciplinary notices (electronic, verbal or written), issued to CASSIDY;

8. DOCUMENTS and correspondence, electronic or otherwise, concerning discrimination, harassment, or retaliation investigations conducted, and findings thereof, that reference CASSIDY;

9. The complete contents of CASSIDY’s personnel/employment file, including the file jacket;

10. Payroll and salary information including, but not limited to, any and all checks or other evidence of payment for salary, compensation, commissions, and/or bonuses issued to CASSIDY;

11. DOCUMENTS RELATED to reasons for the termination of CASSIDY’s employment, if applicable;

12. DOCUMENTS RELATED to reasons for CASSIDY’s resignation of employment, if applicable;

13. Civil, administrative, and/or internal complaints that reference CASSIDY; and

14. All settlement terms, agreements, and/or memoranda of understanding, whether verbal or written, that reference CASSIDY, unless subject to a confidentiality agreement.

Plaintiff challenges the subpoenas on the following grounds: (1) the subpoenas violate Plaintiff’s right to privacy, and (2) the subpoenas seek records that are neither relevant nor reasonably calculated to lead to the discovery of admissible evidence.

The right of privacy of individuals is protected by the California Constitution. (Cal. Const., Art. I, § 1.) In ruling on discovery motions, the court must balance the privacy claims of the responding party with the requesting party’s need for the information. (Schnabel v. Superior Court (1993) 5 Cal.4th 704, 718-722.)¿¿ In Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35, the California Supreme Court fashioned a framework for evaluating potential invasions of privacy. The party asserting the right of privacy must establish (1) a “legally protected privacy interest”; (2) an “objectively reasonable expectation of privacy in the given circumstances”; and (3) a “threatened intrusion that is serious.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 552 (Williams).) If Plaintiff meets this standard, Defendants must then show that the requested documents are “directly relevant” to the litigation.[2]¿¿¿

Plaintiff turns to Lantz v. Superior Court (1994) 28 Cal.App.4th 1839 and Britt v. Superior Court (1978) 20 Cal.3d 844, in support of her contention that Defendant must demonstrate a compelling need for the discovery. Lantz does not help Plaintiff’s cause. Lantz involved privacy limitations on the scope of medical records in a sexual harassment case. Similarly in Britt v. Superior Court (1978) 20 Cal.3d 844, the defendant sought to discover plaintiff’s entire medical history, including all illnesses, injuries, and mental or emotional disturbances for which they had sought treatment any time in their lives. With respect to these types of invasions of privacy, the California High Court had little trouble requiring a defendant to explain why “probing into this area is directly relevant.” (Vinson v. Superior Court (1987) 20 Cal.3d 844, 842.) That is not this case.

Having filed suit and having asserted a privacy interest in her employment records, Plaintiff bears the initial burden under Hill. Plaintiff does not meet that burden. Plaintiff fails to establish a blanket privilege to the information sought, an expectation of privacy in all of the information sought or how the threatened intrusion is serious, especially in light of the Protective Order in place. As such, the burden does not shift to Defendants to demonstrate the direct relevance of the requested documents. Instead, unless specifically addressed, the general rules of discovery apply: “For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement .... Admissibility 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.” (Garamendi v. Golden Eagle Ins. Co (2004) 116 Cal.App.4th 694, 712, fn 8.) Plaintiff’s blanket challenge to the subpoenas on privacy grounds fails.

As a threshold issue, Plaintiff indicates in her Reply that there is no dispute as to payroll records, dates worked, job duties and titles, and reasons for separation. (Reply, p. 3:7-13.) Without stating it, those records are requested under categories 5, 6, and 9-12. Accordingly, the motion is MOOT as the categories 5, 6, and 9-12. The court reviews the remaining categories.

Category No. 1: Application for employment (or engagement as an independent contractor piece rate work or assignments, consultant, etc.), resume(s), and interview notes of CASSIDY.

Category No. 2: DOCUMENTS and correspondence, electronic or otherwise, pertaining to offers of employment or engagement extended to CASSIDY.

Category No. 3: DOCUMENTS and correspondence, electronic or otherwise, sent by CASSIDY in response to offers of employment (or engagement as an independent contractor, piece rate work or assignments, consultant, etc.).

Category No. 4: DOCUMENTS and correspondence, electronic or otherwise, RELATING to reference checks for employment (or engagement as an independent contractor) of CASSIDY.

Category No. 7: Performance reviews and/or evaluations, warnings, and disciplinary notices (electronic, verbal or written), issued to CASSIDY.

Defendants argue these categories are relevant to Plaintiff’s emotional distress claims and mitigation of damages inquiry. The court agrees on both counts. “[B]y asserting a causal link between [plaintiff’s] mental distress and defendant’s conduct, plaintiff implicitly claims that it was not caused by a preexisting mental condition, thereby raising the question of alternative sources for the distress[.]” (Vinson, supra, 43 Cal.3d at p. 842.) Plaintiff’s performance reviews and/or evaluations, warnings, and disciplinary notices may very well show whether Plaintiff’s alleged emotion distress pre-existed her employment with WB Studio, or generally, whether Plaintiff has a history of emotional distress.

As to mitigation of damages, “[t]he wrongfully terminated employee … can (and must, in order to mitigate damages [citation]) make reasonable efforts to seek alternative employment.” (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 692; accord Stanchfield v. Hamer Toyota, Inc. (1995) 37 Cal.App.4th 1495, 1502.) The mitigation inquiry is not limited to whether Plaintiff is employed and the amount she earned, but factors to be considered include the nature of the work, whether the job is superior/inferior, salary, benefits, hours, the job requirements, job responsibilities, and the job locality. (See CACI No. 3963; Kao v. Univ. of San Francisco (2014) 229 Cal.App.4th 437, 454.) Consequently, evidence of mitigation damages is relevant in wrongful termination claims. (West v. Bechtel Corp. (2002) 96 Cal.App.4th 966, 984-85.)

Here, the information sought bears directly upon the nature of the work Plaintiff can obtain, and the responsibilities she can handle. The categories are relevant to the mitigation inquiry.

Category No. 8: DOCUMENTS and correspondence, electronic or otherwise, concerning discrimination, harassment, or retaliation investigations conducted, and findings thereof, that reference CASSIDY.

Category No. 13: Civil, administrative, and/or internal complaints that reference CASSIDY.

Category No. 14: All settlement terms, agreements, and/or memoranda of understanding, whether verbal or written, that reference CASSIDY, unless subject to a confidentiality agreement.

Defendants argue Category Nos. 8, 13, and 14 are relevant to show whether Plaintiff has a tendency of lodging frivolous internal complaints to overshadow poor job performance, among other reasons. “Any otherwise admissible evidence of habit or custom is admissible to prove conduct on a specified occasion in conformity with the habit or custom.” (Evid. Code, § 1105.) Defendants further argue these categories are also relevant to the credibility of Plaintiff’s claim, as they seek evidence of Plaintiff’s stated qualifications in her attempts to obtain employment. The court agrees. To the extent these categories (or any category) seek inadmissible character evidence, the court notes that “admissibility is not a prerequisite to discovery.”¿ (Volkswagen of Am., Inc. v. Superior Court (2006) 139 Cal.App.4th 1481, 1491.) Plaintiff cannot resist the subpoenas simply because purportedly inadmissible information is sought.

[1] Defendants asserted three procedural challenges in opposition to this motion: (1) failure to file a separate statement, (2) failure to meet and confer, and (3) failure to file separate motions to quash. The challenges lack merit. First, there is no requirement that a separate statement must accompany a motion to quash a subpoena for records. (See Cal. Rules of Court, rule 3.1345.) Likewise, there is no requirement that a party seeking to quash a subpoena for personal records must meet and confer prior to filing the motion to quash. (See Code Civ. Proc., § 1987.1.) As to the failure to file separate motions to quash, it is undisputed that the five subpoenas each seek information for the same categories. The court therefore agrees with Plaintiff that filing five separate motions to quash is unnecessary. The court considers the merits of the motion as to all five subpoenas.

[2] As the Supreme Court stated in Williams, “Courts must [] place the burden 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. What suffices to justify an invasion will, …, vary according to the context. Only obvious invasions of interests fundamental to personal autonomy must be supported by a compelling interest.” (Williams, supra, 3 Cal.5th at p. 557.)