Judge Kerry Bensinger, Case Number: 24STCV13689, Date: 2025-05-14 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

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The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

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**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

PLAINTIFF SAMANTHA BRUSTIN’S MOTION TO QUASH SUBPOENA TO EISENHOWER HEALTH AND FOR PROTECTIVE ORDER AND MONETARY SANCTIONS IN THE AMOUNT OF $11,200

PLAINTIFF SAMANTHA BRUSTIN’S MOTION TO QUASH SUBPOENA TO GABOR VARI, M.D., INC. AND FOR PROTECTIVE ORDER AND MONETARY SANCTIONS IN THE AMOUNT OF $11,200

Plaintiff Samantha Brustin (“Brustin” or “Plaintiff”) brings this employment action against her former employers, defendants Petrol Advertising, Inc. (“Petrol”) and Enad Global 7 AB (PUBL) (“EG7”) (collectively, “Defendants”). Brustin worked for Defendants from November 14, 2022 until she was terminated on April 24, 2024. Brustin alleges that, during her employment, she was subjected to sexual harassment, a hostile work environment, and retaliation for taking CFRA leave. Plaintiff was terminated a month after she returned from medical leave.

On June 3, 2024, Plaintiff filed a Complaint against Defendants alleging causes of action for (1) Whistleblower Retaliation, (2) Sex, Gender, Disability, and Medical Condition Harassment in Violation of the FEHA, (3) FEHA Retaliation, (4) Sex, Gender, Disability, and Medical Condition Discrimination (5) Associational Disability Discrimination, (6) Failure to Take All Reasonable Steps Necessary to Prevent Discrimination, (7) Violation of CFRA Rights and CRA Retaliation, (8) Wrongful Termination in Violation of Public Policy, (9) Violations of the Equal Pay Act, and (10) Declaratory and Injunctive Relief. As a result of Defendants’ conduct, Plaintiff claims she has suffered a quickened heartbeat, insomnia, headaches, suffering, anguish, fright, fear, despair, nervousness, grief, anxiety, panic attacks, worry, shock, humiliation, helplessness, shame, emotional distress, stress, loss of enjoyment of life, and mental suffering.

On March 10, 2025, Petrol served on Plaintiff’s counsel’s office via mail notices of consumer in advance of subpoenas duces tecum to Eisenhower Medical Center (“Eisenhower”) and Gabor Vari, M.D., Inc. (“Dr. Vari”). As disclosed in discovery, Plaintiff visited Eisenhower for mental health-related reasons and Dr. Vari, Plaintiff’s psychiatrist, approved Plaintiff’s request for CFRA leave. Thereafter, Plaintiff met and conferred with Petrol regarding the service of the subpoenas, among other things.

On March 24, 2025, Petrol confirmed it was moving forward with service of the subpoenas.

On April 1, 2025, Plaintiff filed these motions to quash Petrol’s subpoenas for production of medical records from Eisenhower and Dr. Vari. Plaintiff seeks sanctions against Petrol and its counsel of record.

On May 1, 2025, Petrol filed oppositions. Petrol requests sanctions against Plaintiff.

Because Plaintiff’s motions to quash are premised on the same arguments, the court considers them together.

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.)¿

Plaintiff objects to paragraph 12 of the Declaration of Sara Khorasani. The objection is OVERRULED.

Plaintiff seeks an order quashing the subpoenas on three grounds: (1) Petrol failed to comply with the noticed motion requirements set forth in Code of Civil Procedure section 2017.220 before seeking discovery of Plaintiff’s sexual history in connection with this litigation, (2) the subpoenas violate Plaintiff’s right to privacy, and (3) the subpoenas are overbroad. The court addresses each ground in turn.

Plaintiff argues the subpoenas should be quashed because Petrol did not bring a noticed motion for a finding of good cause to obtain discovery of Plaintiff’s sexual conduct. Section 2017.220 provides in pertinent part:

In any civil action alleging conduct that constitutes sexual harassment…, any party seeking discovery concerning the plaintiff’s sexual conduct with individuals other than the alleged perpetrator shall establish specific facts showing that there is good cause for that discovery, and that the matter sought to be discovered is relevant to the subject matter of the action and reasonably calculated to lead to the discovery of admissible evidence. This showing shall be made by a noticed motion, accompanied by a meet and confer declaration under Section 2016.040, and shall not be made or considered by the court at an ex parte hearing.

Contrary to Plaintiff’s position, section 2017.220 is not applicable. The subpoenas seek the same categories of documents: “All documents referring or relating to every visit, consultation, examination or communication between [Eisenhower Medical Center/Gabor Vari M.D., Inc., Dr. Gabor Vari, M.D.] and/or any medical doctor associated therewith, and Plaintiff Samantha Brustin including, but not limited to: charts, diaries, logs, histories, video/audio tapes, diagnoses, prognoses, analyses, letters, charge slips, memoranda, prescriptions and any other medical records related to Samantha Brustin.” On its face, the subpoenas do not seek discovery concerning Plaintiff’s “sexual conduct with individuals other than the alleged perpetrator.”

Further, as Petrol demonstrates by way of Plaintiff’s responses to Petrol’s written discovery, the subpoenas seek information relevant to Plaintiff’s claims. Specifically, Plaintiff identified her “emergency room records (in the possession of Eisenhower Health …)” as documents evidencing discriminatory adverse employment actions, unlawful harassment in Plaintiff’s employment and Plaintiff’s emotional distress damages. (Khorosani Decl., Ex. A., FROG-G No. 92; Ex. B, FROG-E Nos. 202.1, 203.1, 213.2.) Additionally, Plaintiff identified Eisenhower as one of her two health care providers who provided consultation, examination, or treatment to Plaintiff for any injury she attributes to Petrol. (Id., Ex. A, FROG-G No. 6.4; Ex. B, FROG-E No. 212.4.) As to Dr. Vari, Plaintiff indicated that Dr. Vari advised her that she may require future or additional treatment for generalized anxiety disorder, PTSD, and mental health treatment as it relates to the injuries Plaintiff attributes to Defendants. (Id., Ex. A, FROG-G No. 6.7; Ex. B, FROG-E No. 212.7.) Dr. Vari also signed Plaintiff’s CFRA leave of absence form. (Id., Ex. C.) Section 2017.220 does not provide a legitimate basis to quash the subpoenas.

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, Petrol must then show that the requested documents are “directly relevant” to the litigation.[2]¿¿

Plaintiff turns to Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1017 in support of her contention that Petrol cannot rely on mere speculation that some portion of the records might be relevant. Rather, Petrol must establish direct relevance.

Plaintiff is incorrect. Having filed suit and having asserted a privacy interest in her medical 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 or an expectation to privacy in all of the information sought or how the threatened intrusion is serious, especially in light of the protective order in place. Further, Plaintiff concedes that the subpoenas seek at least some relevant information. (Plaintiff’s Separate Statement, p. 4:3-5.) Moreover, the parties, have since entered a stipulated protective order.[3] (See Khorasani Decl., Ex. G.) The protective order obviates any concerns with disclosure of any irrelevant material.

As such, the burden does not shift to Defendant to demonstrate the direct relevance of the requested documents.[4] 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 subpoena on privacy grounds fails.

All documents referring or relating to every visit, consultation, examination or communication between Eisenhower Medical Center and/or any medical doctor associated therewith, and Plaintiff Samantha Brustin including, but not limited to: charts, diaries, logs, histories, video/audio tapes, diagnoses, prognoses, analyses, letters, charge slips, memoranda, prescriptions and any other medical records related to Samantha Brustin. [¶] Dates of Treatment: October 1, 2022- Present.

All documents referring or relating to every visit, consultation, examination or communication between Gabor Vari M.D., Inc., Dr. Gabor Vari, M.D., and/or any medical doctor associated therewith, and Plaintiff Samantha Brustin including, but not limited to: charts, diaries, logs, histories, video/audio tapes, diagnoses, prognoses, analyses, letters, charge slips, memoranda, prescriptions and any other medical records related to Samantha Brustin. [¶] Dates of Treatment: January 1, 2022- Present.

Plaintiff seeks “recovery for: 1) her emotional distress stemming from the discrimination, harassment, and retaliation she endured while working for Petrol in connection with her miscarriage in 2023 and her CFRA leave in 2024, as well as the sexual harassment that she endured at the hands of Petrol’s managing agent(s), and 2) after her wrongful termination in violation of public policy on April 24, 2024.” (Plaintiff’s Separate Statements, pp. 1:24-2:1.) For this reason, Plaintiff argues the subpoenas “must be modified to include only documents that: 1) are concerning her emotional distress beginning on the date of her hire on November 13, 2022; 2) concerning Plaintiff’s emotional distress caused by the CFRA interference, as well as the discrimination, harassment, and retaliation in violation of the Fair Employment and Housing Act (“FEHA”) arising from her employment with Petrol (and wrongful termination in violation of public policy); and (3) must exclude overbroad medical records pertaining irrelevant matters such as to sexual conduct.” (Id., at p. 2:1-10.)

Petrol argues the subpoenas are directly relevant to Plaintiff’s “causes of action relating to her alleged disability and CFRA leave, which are inextricably tied to her treatment from her psychiatrist Dr. Vari,” to determine “whether Plaintiff is a qualified individual with a disability” and “provide insight on any prior mental health issues suffered by Plaintiff and alternative stressors causing Plaintiff emotional distress.” (Petrol’s Separate Statements, p. 13.)

Based on the facts presented, the court agrees the subpoenas are not tailored to Plaintiff’s claimed injuries. However, the court disagrees that the subpoenas are overbroad as to time. The court will direct the parties to meet and confer.

The motions are GRANTED in part. The court orders the parties to engage in a two-step process to eliminate disclosure of medical information unrelated to issues in the case. First, the parties shall meet and confer regarding modifying the scope of the subpoenas to eliminate medical information that is unrelated to the issues in the case. Second, Plaintiff’s counsel shall have “first look” privileges to redact medical information from the Eisenhower and Vari productions. The categories subject to redaction are narrow – unrelated medical information. Plaintiff’s counsel is to keep a control set of Eisenhower and Vari documents and Bates stamped control set. If there are going to be redactions, Plaintiff shall copy the entire control set and redact medical information from the production set. The production set shall bear the same numerical Bates stamp numbers but shall also include an additional alphabetical prefix, such as redact-0000001. Plaintiff’s counsel is to produce a privilege log for any redacted information. Plaintiff’s counsel is to produce the Eisenhower and Vari production sets to Defense counsel within ten days of receipt from Eisenhower and Vari.

Kerry Bensinger

Judge of the Superior Court

[1] All statutory references hereinafter are to the Code of Civil Procedure unless otherwise specified.

[2] As the 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.)

[3] The stipulated protective order has not been filed with the court.

[4] Even if the burden were to shift, as discussed above, Petrol demonstrates by way of Plaintiff’s discovery responses the direct relevance of the requested documents.