Judge: Lynette Gridiron Winston, Case: 22PSCV03122, Date: 2023-10-05 Tentative Ruling
Case Number: 22PSCV03122 Hearing Date: October 5, 2023 Dept: 6
CASE NAME: David Arcenau, et al. v. La Quinta Inn & Suites by Wyndham, et al.
Plaintiff David Arcenau’s Motion to Quash/Motion for Protective Order Regarding Subpoena Issued by Defendant Hikvision USA Inc. to Plaintiff David Arcenau’s Current Employer
TENTATIVE RULING
The Court GRANTS the motion to quash in part, by limiting the scope of Defendant Hikvision USA Inc.’s subpoena to documents pertaining to David’s wage/salary information and any work-related incidents that caused Plaintiff any injuries/symptoms identical to the ones he claimed were caused by the incident: (1) Plaintiff’s neck, back, head, and upper and lower extremities, (2) complaints of dizziness, (3) complaints of headaches, (4) complaints of sensitivity to light, (5) complaints of ringing in his ears, (6) complaints of mental fogginess, (7) complaints of having trouble with focusing and concentrating, (8) complaints of balance problems, (9) complaints of memory loss, and (10) complaints of hearing loss.
The motion is otherwise DENIED.
Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order.
BACKGROUND
This is a personal injury and products liability action. On December 30, 2022, Plaintiffs David Arcenau (David) and Aimee Arcenau filed this action against Defendants La Quinta Inn & Suites by Wyndham, Wyndham Hotels & Resorts, Inc., and Hikvision USA Inc. (Hikvision), and Does 1 through 100, alleging causes of action for premises, negligence, strict product liability, negligence product liability, breach of express and implied warranties, and loss of consortium. On February 14, 2023, Plaintiffs filed a doe amendment naming Investel Two LLC (Investel) as a defendant. On April 18, 2023, Plaintiffs filed a doe amendment naming XYZ Security Corp. (XYZ) as a defendant.
On February 3, 2023, Hikvision filed a cross-complaint against La Quinta Inn & Suites by Wyndham, Wyndham Hotels & Resorts, Inc., and Roes 1 through 100, alleging causes of action for equitable indemnity, apportionment of fault/contribution, and declaratory relief. On February 17, 2023, Hikvision filed a roe amendment naming Investel Two LLC as a cross-defendant.
On April 13, 2023, Investel filed a cross-complaint against Hikvision and Moes 1 through 10, alleging causes of action for indemnity, contribution, and declaratory relief. On September 12, 2023, Investel filed a doe amendment naming XYZ as a cross-defendant.
On May 30, 2023, XYZ filed a cross-complaint against Investel, Hikvision, and Zoes 1 through 50, alleging causes of action for equitable indemnity, apportionment of fault, contribution/comparative fault, declaratory relief, and negligence.
One June 23, 2023, Plaintiff David filed the instant motion to quash. On August 29, 2023, Defendant Hikvision opposed the motion. On September 5, 2023, David replied.
LEGAL STANDARD
“Any consumer whose personal records are sought by a subpoena duces tecum and who is a party to the civil action in which this subpoena duces tecum is served may, prior to the date for production, bring a motion under Section 1987.1 to quash or modify the subpoena duces tecum. Notice of the bringing of that motion shall be given to the witness and deposition officer at least five days prior to production. The failure to provide notice to the deposition officer shall not invalidate the motion to quash or modify the subpoena duces tecum but may be raised by the deposition officer as an affirmative defense in any action for liability for improper release of records."
(Code Civ. Proc., § 1985.3, subd. (g) in pertinent part.)
“(a) 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, including unreasonable violations of the right of privacy of the person.
(b) The following persons may make a motion pursuant to subdivision (a):
(1) A party.
(2) A witness.
(3) A consumer described in Section 1985.3.
(4) An employee described in Section 1985.6.
(5) A person whose personally identifying information, as defined in subdivision (b) of Section 1798.79.8 of the Civil Code, is sought in connection with an underlying action involving that person's exercise of free speech rights.
(c) Nothing in this section shall require any person to move to quash, modify, or condition any subpoena duces tecum of personal records of any consumer served under paragraph (1) of subdivision (b) of Section 1985.3 or employment records of any employee served under paragraph (1) of subdivision (b) of Section 1985.6.”
(Code Civ. Proc., § 1987.1.)
PRELIMINARY ISSUES
Plaintiff David’s motion did not include a separate statement, which is required for a motion to quash a deposition subpoena. “Except as provided in (b), any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement. The motions that require a separate statement include a motion:… (5) To compel or to quash the production of documents or tangible things at a deposition…” (Cal. Rules of Court, rule 3.1345, subd. (a)(5).) The Court will still consider the motion to quash, but admonishes Plaintiff David to fully comply with the California Rules of Court going forward.
DISCUSSION
Plaintiff David seeks to either quash the deposition subpoena for production of business records served by Defendant Hikvision on Plaintiff David’s employer or issue a protective order limiting the scope of the deposition subpoena to only records related to wage/salary information and any work-related incidents that caused Plaintiff any injuries/symptoms identical to the ones he claimed were caused by the incident: (1) Plaintiff’s neck, back, head, and upper and lower extremities, (2) complaints of dizziness, (3) complaints of headaches, (4) complaints of sensitivity to light, (5) complaints of ringing in his ears, (6) complaints of mental fogginess, (7) complaints of having trouble with focusing and concentrating, (8) complaints of balance problems, (9) complaints of memory loss, and (10) complaints of hearing loss. The deposition subpoena at issue requests production of the following category of documents:
ALL DOCUMENTS & RECORDS PERTAINING TO EMPLOYMENT & EARNINGS, INCLUDING, WITHOUT LIMITATION, W-2’S, W-4’S, ALL PAYROLL, ATTENDANCE, COMMISSIONS, 1099’S APLICATION FOR EMPLOYMENT, WORK ABSENTEE RECORDS, TIME SHEETS (CARDS), INCIDENT REPORTS, EMPLOYEE PROGRESS REPORTS/PERFORMANCE EVALUATIONS, WRITE-UPS AND WORKERS COMPENSATION CLAIMS RECORDS.
RECORDS OF: DAVID ARCENAU
AKA:
DATE OF BIRTH: 5/21/1968
SOCIAL SECURITY #: 0000000- -
(Motion, Ex. A, p. 1, ¶ 3.)
Plaintiff David contends much of this request is excessive, as it seeks information that is irrelevant and violates, among other things, David’s privacy rights. David also concedes that Hikvision is entitled to production of documents as it pertains to David’s earning capacity and any health related issues David experienced following the subject incident. David also indicates that he is agreeable to permitting production of documents pertaining to his employment compensation and those pertaining to similar injuries he may have suffered in connection with his employment, but that Hikvision refused to narrow the scope of its subpoena, even after meeting and conferring regarding the same.
The Court agrees with David and finds that Hikvision’s subpoena is overly broad and seeks either irrelevant information from David’s employer or violates David’s privacy rights. This lawsuit is a relatively straightforward personal injury and products liability action. While the scope of discoverable evidence is generally quite broad, (see Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 98; Code Civ. Proc., § 2017.010), it is unclear to the Court how any documents concerning employment applications, employee progress reports/performance evaluations, and write-ups are necessary to determine the fact and amount of David’s employment compensation or the extent of his injuries. The documents which David has offered to permit production appear to sufficiently address these issues, and if there are any additional questions to be asked, Hikvision can propound additional written discovery or depose David regarding the same.
Moreover, the Court also agrees that such documents would generally be subject to David’s privacy rights since they involve his employment personnel records. An employee’s “personnel records and employment history are within the scope of the protection provided by the state and federal Constitutions. [Citations.]” (San Diego Trolley, Inc. v. Superior Court (2001) 87 Cal.App.4th 1083, 1097.) [1] It is not enough that Hikvision contends such information is relevant or reasonably calculated to lead to the discovery of admissible evidence. (See Britt v. Superior Court (1978) 20 Cal.3d 844, 863-864.) [2] Hikvision must show a compelling need for that evidence so as to justify the intrusion on David’s privacy rights here vis-à-vis his employment personnel records. (Lantz v. Superior Court (1994) 28 Cal.App.4th 1839, 1854-1855.) Hikvision has not done so.
Nevertheless, the Court finds that quashing the entire subpoena would be excessive in this instance, especially since David indicates that he is willing to permit production of documents pertaining to his compensation and any similar injuries he experienced in connection with his employment. Thus, the Court instead will limit the scope of the subpoena to production of documents pertaining to David’s wage/salary information and any work-related incidents that caused Plaintiff any injuries/symptoms identical to the ones he claimed were caused by the incident: (1) Plaintiff’s neck, back, head, and upper and lower extremities, (2) complaints of dizziness, (3) complaints of headaches, (4) complaints of sensitivity to light, (5) complaints of ringing in his ears, (6) complaints of mental fogginess, (7) complaints of having trouble with focusing and concentrating, (8) complaints of balance problems, (9) complaints of memory loss, and (10) complaints of hearing loss.
CONCLUSION
The Court GRANTS the motion to quash in part, by limiting the scope of Defendant Hikvision USA Inc.’s subpoena to documents pertaining to David’s wage/salary information and any work-related incidents that caused Plaintiff any injuries/symptoms identical to the ones he claimed were caused by the incident: (1) Plaintiff’s neck, back, head, and upper and lower extremities, (2) complaints of dizziness, (3) complaints of headaches, (4) complaints of sensitivity to light, (5) complaints of ringing in his ears, (6) complaints of mental fogginess, (7) complaints of having trouble with focusing and concentrating, (8) complaints of balance problems, (9) complaints of memory loss, and (10) complaints of hearing loss.
The motion is otherwise DENIED.
Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order.