Judge Kerry Bensinger, Case Number: 23STCV10151, Date: 2024-02-05 Tentative Ruling

This is a retaliation and wrongful termination action. On May 5, 2023, Plaintiff, Lisa Pettinelli, filed a Complaint against Defendant, Regents of the University of California (erroneously sued as UCLA Health; UCLA Medical Center, Santa Monica; UCLA Stana Monica Medical Center; University of California). On July 25, 2023, Plaintiff filed the operative First Amended Complaint (“FAC”), alleging causes of action for (1) Retaliation in Violation of Labor Code, § 1102.5, (2) Retaliation in Violation of Labor Code § 232.5, (3) Retaliation in Violation of Labor Code § 6310 (4) Retaliation in Violation of Labor Code § 6311, (5) Retaliation in Violation of California’s Fair Employment and Housing Act (Gov. Code § 12940 et seq.), and (6) Failure to Prevent Discrimination and/or Retaliation from Occurring in Violation of California’s Fair Employment and Housing Act (Gov. Code § 12940 et seq.).

As alleged in the FAC, Plaintiff began working for Defendant as a registered nurse in June 2001. At the time of the alleged events, Plaintiff worked in the Emergency Department at the UCLA Santa Monica Medical Center. Plaintiff had years of positive employment records. During her tenure, Plaintiff engaged in legally-protected activity, including disclosing concerns regarding the lack of quality of care being provided to patients in the Emergency Department, patient safety, compliance with COVID-19 protocols, potential exposure to COVID-19, management’s history of retaliation against persons who brought complaints or shared concerns, and engaging in public protests of the foregoing issues. In response, Plaintiff was subjected to retaliation consisting of a hostile work environment, impact on the terms and conditions of her employment (e.g., scheduling, work hours, time off, compensation), suspension, investigation, and ultimately, termination of her employment in October 2021.

On September 25, 2023, Defendant issued a subpoena to ModMD, demanding production of Plaintiff’s complete employment records from 03/01/2020 to the present. The subpoena further states: “There is good cause for Defendant the Regents of the University of California to obtain these records as Plaintiff was terminated due to her violation of Defendant's conflict-of-interest policies. Specifically, Plaintiff was terminated because she was performing tasks for ModMD during work hours at UCLA. Therefore, these records are necessary for Defendant to verify Plaintiff's employment at ModMD. These records are further necessary for Defendant to evaluate Plaintiff's damages.”

On October 18, 2023, Plaintiff filed this motion to quash or modify the subpoena issued to ModMD.

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. (Code Civ. Proc., § 2020.020.) 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. 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.” (Code Civ. Proc., § 1987.1, subd. (a).) “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 . . . .” (Code Civ. Proc., § 2020.410, subd. (a).)

Defendant seeks Plaintiff’s complete employment records from ModMD for the period 3/01/2020 to the present, “including but not limited to any records/documents that may be stored digitally and/or electronically: earnings, all payroll, application for employment, work absenteeism or time off, benefits, incident reports, W-2’s 1099’s, claim records, pre-employment exam records, and employee progress records.” (Webster Decl., ¶ 2, Exh. A, at p. 7.) Defendant seeks these records because “Plaintiff was terminated due to her violation of Defendant's conflict-of-interest policies. Specifically, Plaintiff was terminated because she was performing tasks for ModMD during work hours at UCLA. Therefore, these records are necessary for Defendant to verify Plaintiff's employment at ModMD. These records are further necessary for Defendant to evaluate Plaintiff's damages.” (Id.)

In her reply, Plaintiff clarifies she does not oppose a “narrowly tailored subpoena seeking her time records from March 1, 2020 to October 2021 (while she was employed with Regents), her compensation while working for ModMD, her payment structure, or her hiring date with ModMD.” (Reply, p. 2:13-15.) She objects, however, to the subpoena’s overbroad request for her “complete employment records” as it would include irrelevant and inadmissible character evidence and private HIPAA protected third party information for patients Plaintiff has treated. (Id.) Plaintiff contends such information exceeds Defendant’s purported reason for issuing the subpoena: to obtain records related to when Plaintiff was employed by ModMD, her ownership interest (if any), compensation, and her work hours while working for both Defendant and ModMD. (See Opp., pp. 6:24-7:9.) In this way, Plaintiff argues the subpoena violates her right to privacy.

The court has reviewed the subpoena and finds the subpoena is not overbroad. As stated in the subpoena, Defendant’s two-fold reason for obtaining Plaintiff’s employment records is to verify her employment with ModMD and to assess her damages.[1] Plaintiff’s argument that the subpoena would require production of private third party information of Plaintiff’s patients is unsubstantiated. Plaintiff does not identify which of the enumerated documents sought (e.g., incident reports, W-2’s 1099’s, claim records, pre-employment exam records, and employee progress records) would implicate third party information. Absent that showing, the subpoena, on its face, seeks Plaintiff’s employment records—not any documents concerning Plaintiff’s patients or patient related documents created while carrying out her work with ModMD.

Plaintiff’s argument that the subpoena seeks inadmissible character evidence is not persuasive. “[A]dmissibility is not a prerequisite to discovery.”¿ (Volkswagen of Am., Inc. v. Superior Court (2006) 139 Cal.App.4th 1481, 1491.) Plaintiff cannot resist the subpoena simply because purportedly inadmissible information is sought. Moreover, as Defendant correctly argues, character evidence is admissible when relevant to prove some fact “such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident.” (Evid. Code § 1101, subd. (b).) These are arguments better reserved for trial and motions in limine, not discovery.

Further, as Plaintiff implicitly concedes in her reply, the subpoena seeks information which is directly relevant to Defendant’s defense. In this instance, given the relevance of the information sought, Plaintiff’s right to privacy does not overcome the discoverability of her employment records with ModMD.

However, out of an abundance of caution, the court will limit the subpoena to those documents identified in the subpoena, namely: earnings, all payroll, application for employment, work absenteeism or time off, benefits, incident reports, W-2’s 1099’s, claim records, pre-employment exam records, and employee progress records. This is to ensure that no third party information is produced in response to the subpoena

The motion to quash is DENIED. The alternative motion to modify the subpoena is GRANTED. The subpoena is limited to plaintiff’s following employment records: earnings, all payroll, application for employment, work absenteeism or time off, benefits, incident reports, W-2’s 1099’s, claim records, pre-employment exam records, and employee progress records, digitally or electronically stored, for the time period of 3/01/2020 to present.

Kerry Bensinger

Judge of the Superior Court

[1] Plaintiff indicated in her discovery responses that she began working full-time with ModMD when her employment with Defendant was terminated. (Gordon Decl., ¶ 11, Exh. F, at pp. 31-32.)