Judge: Lynette Gridiron Winston, Case: 24PSCV01029, Date: 2024-10-16 Tentative Ruling

Case Number: 24PSCV01029    Hearing Date: October 16, 2024    Dept: 6

CASE NAME:  Zar Austin v. Waste Management, Inc., et al. 

Plaintiff’s Motion to Quash Defendant’s Subpoenas for Plaintiff’s Employment Records Pursuant to C.C.P. §§ 1987.1 et seq., and 1985.3(g) 

TENTATIVE RULING 

The Court GRANTS in part and DENIES in part Plaintiff’s motion to quash Defendant’s subpoenas for employment records. The Court modifies the subpoenas to permit Defendant to obtain documents pertaining to Plaintiff’s attendance on December 5, 2022, and if Plaintiff was employed and working for such employer on December 5, 2022, then Defendant may obtain the employers’ training and employee rule manuals in effect in 2022. The subpoenas are quashed in all other respects. The Court DENIES Plaintiff’s request for monetary sanctions. 

             Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order. 

BACKGROUND 

This is a personal injury action. On April 2, 2024, plaintiff Zar Austin (Plaintiff) filed this action against defendant Azusa Land Reclamation, Inc. (erroneously sued as Waste Management, Inc. and USA Waste of California, Inc.) (Defendant) and Does 1 to 50, alleging causes of action for general negligence and premises liability. 

On September 13, 2024, Plaintiff moved to quash Defendant’s subpoenas for Plaintiff’s employment records. On October 3, 2024, Defendant opposed the motion. On October 9, 2024, Plaintiff replied. 

LEGAL STANDARD 

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

PRELIMINARY ISSUES 

Plaintiff submitted additional evidence on reply. (Reply, Ex. 1.) Generally, new evidence is not permitted on reply unless it fills in gaps in the evidence created by the opposing party’s opposition and is not raising new substantive issues for the first time; otherwise, a further hearing would be required to permit the opposing party to respond. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.) Thus, to the extent that this additional evidence raises new issues, the Court declines to consider it. 

The Court also notes that Plaintiff combined three subpoenas into one discovery motion, but paid only one filing fee. (Motion, p. 101 of pdf.) Since there are three separate subpoenas at issue, each one should have been the subject of a separate motion with a separate filing fee. (See Code Civ. Proc., § 2020.020, subd. (b); Gov. Code, § 70617, subds. (a), (f).) The Court will still consider the motions, but admonishes Plaintiffs going forward to comply with the requirements of the Code of Civil Procedure and Government Code going forward. 

DISCUSSION 

Meet and Confer 

Although meeting and conferring is not required before filing a motion to quash under Code of Civil Procedure section 1987.1, the Court appreciates Plaintiff’s efforts to meet and confer. (Code Civ. Proc., § 1987.1; Zurita-Cruz Decl., ¶¶ 8-15.) 

Summary of Arguments 

Plaintiff seeks to quash the deposition subpoenas Defendant served on Kiewit Corporation, Cemak Trucking, Inc., and Z&Z Trucking, Inc. Plaintiff contends Defendant’s original subpoenas are not particularized to Plaintiff’s claims, and that Defendant seeks to subpoena the entirety of Plaintiff’s employment records from his employers by requesting “any and all” records. With regard to the amended subpoena language, Plaintiff contends his employment records are irrelevant because loss of earnings are not at issue in this action. Plaintiff contends that Defendant attempts to subpoena these documents because they may be relevant to the issues of notice vis-à-vis Plaintiff’s other visits to the subject property, but that any documents relating to this notice are already accessible Defendant because Defendant’s PMQ testified drivers have to go to the scale house and give their information there before they dump at Defendant’s property. Plaintiff contends that employment records are protected by privacy per Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, and that the disclosure of these records must be directly relevant and the subpoenas must be narrowly circumscribed to be executed in the least intrusive manner per Davis v. Superior Court (1992) 7 Cal.Appl.4th 1009. 

In opposition, Defendant contends that the subpoenas are proper and should not be quashed, modified, or limited. Defendant contends the subpoenas are narrowly tailored and request documents crucial to Defendant's evaluation of Plaintiff’s claims, and that the documents sought are not the type of private records that warrant increased scrutiny, particularly given Defendant’s agreement to redact any financial information. Defendant contends the records relating to Plaintiff’s employment contracts, attendance records, training records, and rule manuals are directly relevant to whom Plaintiff was working for and the terms and scope of Plaintiff’s job duties at the time of the incident, and thus may be evidence of comparative fault or may lead to discovery of other responsible parties. Defendant contends it is unclear who Plaintiff worked for at the time of the incident, which is relevant for determining whether Plaintiff was subject to certain internal safety requirements, and for determining Plaintiff’s past experience using Defendant’s facility and other similar facilities, Plaintiff’s safety history and training, and whether Plaintiff was provided with proper safety equipment. 

Moreover, Defendant contends it is not seeking Plaintiff’s private financial records or confidential medical records, but rather is seeking training records which would not divulge private information about Plaintiff. Defendant also contends Davis v. Superior Court (1992) 7 Cal.Appl.4th 1009 does not apply because that case involved disclosure of psychiatric medical records and overcoming the physician-patient privilege instead of the limited employment records here. Defendant further contends Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516 is inapplicable because the plaintiff in that case sought disclosure of the plaintiff’s own personnel records and because that case was later overruled in part to the extent it required a party seeking discovery of private information to always establish a compelling interest or need. 

Analysis 

Employment records are generally protected by privacy rights. (Alch v. Superior Court (2008) 165 Cal.App.4th 1412, 1426-1427 (Alch) [a person’s work history]; Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 528-530 (Board of Trustees), disapproved on other grounds in Williams v. Superior Court (2017) 3 Cal.5th 531, 557 fn. 8 [employee personnel file].) Although filing a lawsuit may result in a plaintiff implicitly waiving privacy rights, that waiver is limited to discovery directly relevant to the plaintiff’s claims and essential to resolving the lawsuit, and there must be a compelling and opposing state interest justifying the discovery. (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1014.) Even if the information sought is directly relevant, it is not automatically discoverable; rather, there must be a careful balancing of the compelling public need against the privacy right, and the scope of permitted disclosure must be narrowly tailored and be made in the least intrusive manner. (Ibid.) 

The Court finds Plaintiff’s employment records here subject to privacy protections. (Alch, supra, 165 Cal.App.4th 1412, 1426-1427; Board of Trustees, supra, 119 Cal.App.3d 516, 528-530.)[1] It is unclear to the Court why Defendant needs Plaintiff’s employment contracts, as the fact of employment and the scope of Plaintiff’s job duties with each employer could be easily answered in an interrogatory or a request for admission. That being said, the Court does find Plaintiff’s attendance records to be directly relevant to the issue of who Plaintiff was working for at the time of the incident and whether Plaintiff was familiar with the subject premises for purposes of notice and contributory negligence, but the Court also finds there are less intrusive means of obtaining this information. Plaintiff indicated in his moving papers that Defendant’s PMQ testified drivers were required to go to the scale house and give their information to the scale house before they dump. (Motion, 6:12-18; Zurita-Cruz Decl., Ex. 6, 26:15-27:6.) Defendant did not respond to this point in its opposition. It appears to the Court then that Defendant already has the means to determine how many times Plaintiff has visited Defendant’s property before and on whose behalf he made those visits. 

Nevertheless, the Court does find that the attendance records for the date of the incident, and the requests for training records and rule manuals are directly relevant, narrowly tailored, and the least intrusive means by which Defendant can evaluate whether Plaintiff had adequate training for purposes of notice and contributory negligence here. 

Based on the foregoing, the Court GRANTS in part and DENIES in part Plaintiff’s motion to quash Defendant’s subpoenas for employment records. The Court modifies the subpoenas to permit Defendant to obtain documents pertaining to Plaintiff’s attendance on December 5, 2022, and if Plaintiff was employed and working for such employer on December 5, 2022, then Defendant may obtain the employers’ training and employee rule manuals in effect in 2022. The subpoenas are quashed in all other respects. 

The Court DENIES Plaintiff’s request for monetary sanctions, finding that Defendant opposed the motion with substantial justification. (Code Civ. Proc., § 1987.2, subd. (a).) 

CONCLUSION 

The Court GRANTS in part and DENIES in part Plaintiff’s motion to quash Defendant’s subpoenas for employment records. The Court modifies the subpoenas to permit Defendant to obtain documents pertaining to Plaintiff’s attendance on December 5, 2022, and if Plaintiff was employed and working for such employer on December 5, 2022, then Defendant may obtain the employers’ training and employee rule manuals in effect in 2022. The subpoenas are quashed in all other respects. The Court DENIES Plaintiff’s request for monetary sanctions. 

             Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order.