Judge Lynne M. Hobbs, Case Number: 20STCV37651, Date: 2024-04-04 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 20STCV37651, Date: 2024-04-04 Tentative Ruling

PLEASE NOTE:

The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.

Regardless of whether there is any such agreement, each party who wishes to submit must send an email to the Court at SSCdept30@LACourt.org indicating the party's intention to submit.

Include the word "SUBMITS" in all caps and the case number in the subject line of the email and in the body provide the date and time of the hearing, your name, your contact information, the party you represent, whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, or non-party.

If a party submits but still intends to appear at the hearing, include the words "SUBMITS BUT WILL APPEAR" in the subject line of the email.

If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Unless all the parties have submitted, the Court will hear argument from any party that appears at the hearing and wishes to argue. The Court may change its tentative as a result of the argument and adopt the changed tentative as the final order at the end of that hearing, even if all the parties are not present.

Be advised that after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of said motion and may adopt the tentative ruling as the order of the Court.

Case Number: 20STCV37651 Hearing Date: April 4, 2024 Dept: 30

DEVON BUSH vs GARDENA POLICE DEPARTMENT, et al.

TENTATIVE

Plaintiff’s motion to quash is GRANTED in part. The Court limits the scope of the subpoenas to the physical and mental injuries claimed by Plaintiff in this action and to a 5-year timeframe. The employment subpoena is also limited to seek only records pertaining to earnings, payroll records, commissions, and bonuses. Plaintiff’s request for sanctions is DENIED.

Moving party is ordered to give notice.

Legal Standard

When a subpoena has been issued requiring the attendance of a witness or the production of documents, electronically stored information, or other things before a court or at the taking of a deposition, the court, upon motion “reasonably made” by the party, the witness, or any consumer whose personal records are sought, 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 and conditions as the court may specify.¿ (See Code Civ. Proc. § 1987.1;¿Southern Pac. Co. v. Superior Court¿(1940) 15 Cal.2d 206.)¿

There is no requirement that the motion contain a meet-and-confer declaration demonstrating a good-faith attempt at informal resolution. (See id.)

The court can make an order quashing or modifying a subpoena as necessary to protect a person from “unreasonable or oppressive demands, including unreasonable violations of the right¿of privacy of the person.”¿ (Code Civ. Proc., § 1987.1,¿subd. (a).)

Under Hill v. Nat'l Collegiate Athletic Assn. (1994) 7 Cal. 4th 1, 35-37, the party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. (Id.) The party seeking the information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations. (Id. at 37–40.)

Discussion

Plaintiff moves to quash or modify Defendant’s subpoenas for: (1) Plaintiff’s employment records; and (2) Plaintiff’s medical, billing and radiology records, arguing that Defendant’s subpoenas violate Plaintiff’s right to privacy, and are overbroad.

The subpoenas seek production of all employment and payroll records pertaining to Plaintiff. Specifically, the subject subpoenas request the following:

“Performance evaluations, applications for employment including all job descriptions for positions, resumes, signed acknowledgments for policies and/or procedures, earnings, payroll records, commissions, bonuses, disciplinary/investigation reports and benefit records, accommodations/requests for accommodation as well as any records or documents related to accommodation meetings and requests including but not limited to disability and military accommodations, workers compensation claims documents including reports of injury, medical records and settlements and/or notes regarding any claims or litigation during the employment of Devon Bush; DOB: 09/14/1993; SS#: XXX-XX-XXXX including, but not limited to, any electronically stored data.”

(Gkogka Decl., Exh. A.)

The subpoenas for medical, billing, and radiology records seek production of any and all records pertaining to Plaintiff as follows:

“Medical: any and all health care records pertaining to examinations, treatments, or consultations of DEVON BUSH, DOB: 09/14/1993, SSN: XXX-XX-UNK, including but not limited to, all intake information, applications, medical health needs, reports, notes psychiatric, psychological and counseling records; counseling needs, all diagnostic testing, including but not limited to, x-rays, MRI’s CT scans, neurological testing, and any raw test data; all treatment, diagnostic, and prognosis records; any nurses’ and doctors’ notes, all correspondence or computer generated data.”

“Billing: any and all writings, documents, and records reflecting any charges pertaining to the care, treatment, evaluation and examination of DEVON BUSH, DOB: 09/14/1993, SSN: XXX-XX-UNK, including all records relative to payment of health care charges from any source including, but not limited to Medicare, Medi-Cal, Medicaid or other provider.”

“Radiology: all original diagnostic films including, x-rays, MRI films, CT scans and any other diagnostic testing pertaining to the care, treatment and examination DEVON BUSH, DOB: 09/14/1994, SSN: XXX-XX-UNK.”

(Gkogka Decl., Exh. A.)

California’s Constitutional right to privacy protects against the unwarranted, compelled disclosure of various private or sensitive information regarding one’s personal life.¿ (Britt v. Superior Court (1978) 20 Cal.3d 844, 855-856.)¿¿This includes employment records.¿¿(See Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 526 (“It seems manifest, and we observe no contrary contention, that personnel, tenure, and promotion records and files relate to the private affairs of Dr. Lucas, and are maintained in confidence by the University.”); See also, id., at 526 (“It is manifest that the subject documents and communications of Dr. Dong's personnel, tenure, and promotion files, whether relating only to his initial employment, or also to his “promotion, additional compensation, or termination,” were communicated to the University in confidence, and were thus covered by the communicators' constitutional right of privacy.”); El Dorado Savings & Loan Assn. v. Superior Court (1987) 190 Cal.App.3d 342, 345 (“plaintiffs acknowledge the personnel¿records of petitioner Morris are protected by the right of privacy.”).)¿ “The public interest in preserving confidential, personnel information generally outweighs a private litigant's interest in obtaining that information.”¿ (Life Technologies Corp. v. Superior Court (2011) 197 Cal.App.4th 640, 652, disapproved on different grounds by Williams v. Superior Court, supra, 3 Cal.5th 531.)¿¿¿An employee’s personnel records concerning when and why the employee was fired have a legally protected privacy interest, and disclosure of the records may implicate a threatened intrusion into privacy that is serious. (Id.) And a person is privileged to withhold disclosure of their taxpayer information. (Brown v. Superior Court (1977) 71 Cal.App.3d 141, 142-144 [finding plaintiff’s W-2 tax forms were subject to privilege protecting taxpayer information from disclosure despite defendants’ claim they were relevant to lost wages].)¿

Plaintiff also has a right to privacy with respect to his medical records. (See Board of Medical Quality Assurance v. Gherardini (1979) 93 Cal.App.3d 669, 678-679, and Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1019.)

As cited above, Plaintiff’s employment and medical records are protected by the right to privacy, and Plaintiff has an objectively reasonable expectation of privacy in the given circumstances.

As to the next Hill factor, Defendant seeks this subpoena because Plaintiff is pursuing a loss of earnings claim, and because Plaintiff is pursuing a personal injury claim. While Plaintiff has put his injuries relating to his back and neck, and his emotional injuries at issue in this case by filing a lawsuit against Defendant, the subpoenas seeking Plaintiff’s entire employment, medical, billing, and radiological records are overbroad. Defendant has not articulated any facts establishing a legitimate or important countervailing interest such disclosure would serve. Defendant only argues that Plaintiff put his medical records at issue. However as noted above, Plaintiff has not put his entire medical history at issue by claiming injuries to certain body parts. The same is true with Plaintiff’s loss of earning claim. It is not clear how Plaintiff’s “performance evaluations, applications for employment including all job descriptions for positions, resumes, signed acknowledgments for policies and/or procedures, disciplinary/investigation reports and benefit records, accommodations/requests for accommodation as well as any records or documents related to accommodation meetings and requests including but not limited to disability and military accommodations, workers compensation claims documents including reports of injury, medical records and settlements and/or notes regarding any claims or litigation” would provide supporting evidence for the loss of earnings claim. Similarly, limiting the subpoenas would be a less intrusive means to this discovery. As such, the Court finds that the subpoenas are overbroad to the extent the scope of records includes non-wage related documents, and include medical records without limitation.

As such, Plaintiff’s motion to quash is granted in part and the employment subpoena is limited to only seek earnings, payroll records, commissions, and bonuses. Similarly, the subpoenas for Plaintiff’s medical, billing and radiological records will be modified to only seek information relating to the body parts at issue in this case for a 5-year time period.

Plaintiff did not put his entire medical history at issue, including physical and/or mental conditions that are not related to his claims of physical and mental injuries in this case.

Sanctions

“Except as specified in subdivision (c), in making an order pursuant to motion made under subdivision (c) of Section 1987 or under Section 1987.1, the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” Code Civ. Proc., § 1987.2, subd. (a).

The Court finds that the opposition was not made in bad faith. Thus, the request for sanctions pursuant to CCP section 1987.2, subd. (a) is denied.

Plaintiff also requests sanctions under CCP sections 2023.010 and 2023.030. However, CCP sections 2023.010 and 2023.030 do not independently authorize the trial court to impose monetary sanctions for misuse¿of¿discovery. (City of Los Angeles v. PricewaterhouseCoopers, LLC (2022) 84 Cal.App.5th 466, 504.)

Accordingly, Plaintiff’s motion to quash is GRANTED in part. The Court limits the scope of the subpoenas to the physical and mental injuries claimed by Plaintiff in this action and to a 5-year timeframe. The employment subpoena is also limited to only seek records retaining to earnings, payroll records, commissions, and bonuses. Plaintiff’s request for sanctions is DENIED.