Judge: Malcolm Mackey, Case: BC709022, Date: 2022-10-21 Tentative Ruling

Case Number: BC709022    Hearing Date: October 21, 2022    Dept: 55

GUITIERREZ v. DER KINDER GARDEN                                             BC709022

Hearing Date:  10/21/22,  Dept. 55

#7:  MOTION TO QUASH/MODIFY/LIMIT PLAINTIFF’S THIRD-PARTY SUBPOENAS AND REQUEST FOR MONETARY SANCTIONS.

 

Notice:  Okay

Opposition

 

MP:  Defendant DER KINDER GARDEN.

RP:  Plaintiff

 

Summary

 

On 6/6/18, Plaintiff filed a Complaint, alleging that she was wrongfully terminated from employment, and retaliated against, by defendants, due to a disability and medical condition, and they the connection between Plaintiff’s injury and employment.

On 10/23/19, Plaintiff filed a motion for leave to file a First Amended Complaint, adding alleged Labor Code violations.

 

 

 

 

 

 

MP Positions

 

Moving party requests an order imposing sanctions, and quashing or modifying Deposition

Subpoenas for the Production of Business Records to Berkshire Hathaway Homestate Insurance

Company (motion, Exhibit A), Hefley Law, APC (Exhibit B), Oak River Insurance Company

(Exhibit C), and the Employment Development Department (Exhibit D), and Deposition

Subpoena for Personal Appearance and Production of Documents and Things to Berkshire

Hathaway (Exhibit E), as follows:

 

• Remove Request No. 5 in the Subpoenas to Oak River and Berkshire, on the grounds

that the request is overbroad, seeks information that is neither relevant nor reasonably

calculated to lead to the discovery of admissible evidence, and seeks information which

is protected by third-party privacy rights;

 

• Remove Requests Nos. 1, 2, and 8 from the Subpoena to the EDD, on the grounds that

the request is overbroad, seeks information that is neither relevant nor reasonably

calculated to lead to the discovery of admissible evidence, and seeks information which

is protected by third-party privacy rights;

 

• Limit Requests Nos. 1, 2, and 3, and any other Requests, in the Subpoenas to Berkshire

and Oak River, to the extent they seeks documents or recordings that contain the names

and contact information of Defendant’s current or former employees;

 

• Remove Request No. 6 from the Subpoenas to Oak River and Berkshire, on the grounds

that it is overly broad, unduly burdensome, and seeks information that is neither relevant

nor reasonably calculated to lead to the discovery of admissible evidence;

 

• Limit Request No. 2 in the Subpoenas to Oak River, Berkshire, and Hefley and Request

No. 7 in the Subpoena to Oak River, to the extent that it seeks communications between

the workers’ compensation attorney and Defendant (and its employees or agents) on the grounds that such communications are protected by the attorney-client privilege and/or

attorney work product doctrine.

(Motion, pp. 2 – 3.).

 

 

 

RP Positions

 

Opposing party advocates denying, and imposing sanctions on moving party and counsel, on grounds including the following:

 

1) Defendant’s Motion is Improper as Defendant has Filed Several Motions Under the Cover of One Motion and failed to serve it on third parties and the deposition officer;

 

2) Defendant’s Motion is Fatally Flawed because it fails to Comply with California Rules

of Court 3.1345(a);

 

3) Plaintiff’s Successor in Interest’s Subpoenas are not Overbroad and/or Unduly

Burdensome;

 

4) Plaintiff’s Successor in Interest’s Subpoenas Seek Information Reasonably Calculated to Lead to Admissible Evidence;

 

5) Defendant’s Privacy Objections Lack Legal Basis;

 

6) Plaintiff’s Successor in Interest’s Subpoenas do not violate the attorney-client and/or

attorney work product doctrine; and

 

7) Plaintiff’s Successor in Interest’s Subpoenas are Made in Good Faith and Substantially

Justified.

 

(Opposition, p. 2.)

 

 

 

Tentative Ruling

 

The motion is granted, as prayed.

The opposing request for sanctions is denied, the Court finding substantial justification.

A court may quash a subpoena entirely or partially, and issue an order to protect parties, witnesses or consumers from unreasonable or oppressive demands including violations of privacy.  CCP §1987.1.  “‘[U]pon motion reasonably made by the party,’ judges may rule upon motions for quashing,  modifying or compelling compliance with, subpoenas.”  Lee v. Swansboro Country Property Owners Ass'n  (2007) 151 Cal.App.4th 575, 582-83.

“[I]ndividuals have a legally recognized privacy interest in their personal financial information.”  International Federation of Professional & Technical Engineers, Local 21, AFL-CIO v. Sup. Ct. (2007) 42 Cal. 4th 319, 330. 

Also, there is a privacy interest as to one's personnel files.  BRV, Inc. v. Sup. Ct. (2006) 143 Cal. App. 4th 742, 756;  Teamsters Local 856 v. Priceless, LLC (2003) 112 Cal. App. 4th 1500, 1515, disapproved on other grounds by  Int’l Fed. of Prof. and Technical Engineers, Local 21, AFL-CIO v. Sup. Ct. (2007) 42 Cal.4th 319, 336.  "[T]he balance will favor privacy for confidential information in third party personnel files unless the litigant can show a compelling need for the particular documents and that the information cannot reasonably be obtained through depositions or from nonconfidential sources." Harding Lawson Assocs. v. Sup. Ct. (1992) 10 Cal. App. 4th 7, 10,  disapproved on other grounds by  Williams v. Sup. Ct. (2017) 3 Cal. 5th 531, 557.  “The public interest in preserving confidential, personnel information generally outweighs a private litigant's interest in obtaining that information.”  Life Technologies Corp. v. Sup. Ct. (2011) 197 Cal.App.4th 640, 652,  disapproved on other grounds by  Williams v. Sup. Ct. (2017) 3 Cal. 5th 531, 557. 

Third parties must be notified (e.g., by letter or e-mail) and given an opportunity to either consent or object, before discovery responses revealing their private information, and parties cannot waive such rights of third parties. Belaire-West Landscape, Inc. v. Sup. Ct.  (2007) 149 Cal.App.4th 554, 561-62;  Pioneer Electronics (USA), Inc. v. Sup. Ct. (2007) 40 Cal.4th 360, 374-75;  DOE 2 v. Sup. Ct. (2005) 132 Cal.App.4th 1504, 1521. 

The party seeking private information has the burden to show that the information is directly relevant, by showing a nexus between the claimed damages and the private information.  E.g., Brenda L. v. Sup. Ct. (1998) 65 Cal. App. 4th 794, 801-802.

In addition, after the objecting party meets the burden to show preliminary facts in support of an attorney-client privilege, “the burden shifts to the party opposing the privilege to show either the claimed privilege does not apply, an exception exists, or there has been an express or implied waiver.”  Venture Law Group v. Sup. Ct. (2004) 118 Cal. App. 4th 96, 102.

Additionally, opposing party cites no authority prohibiting combined motions  (opposition, pp. 4-5).  Even assuming some procedural violation, courts may overlook harmless procedural errors made in the papers or proceedings that do not affect substantial rights of parties.  See, e.g., CCP §475;  Morgan v. AT & T Wireless Services, Inc. (2009) 177 Cal.App.4th 1235, 1252;  Reedy v. Bussell (2007) 148 Cal. App. 4th 1272, 1289 ("'Procedural defects which do not affect the substantial rights of the parties do not constitute reversible error….’”); McAllister v. County of Monterey (2007) 147 Cal. App. 4th 253 (court is bound to ignore any ‘defect … in the pleadings or proceedings which, in the opinion of said court, does not affect the substantial rights of the parties.’ ”).

Further, the Court finds that the  filed separate statement is sufficient in content and helpful to the decision.  Courts have discretion to deny discovery motions where a filed separate statement lacks the content and format required by the California Rules of Court.  Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893.  Accord  St. Mary v. Sup. Ct.  (2014) 223 Cal. App. 4th 762, 778. 

As for sanctions requests, monetary sanctions are mandatory as to parties losing discovery motions, unless courts find substantial justification or other injustice.  E.g.,  Foothill Properties v. Lyon/Copley Corona Assocs., L.P. (1996) 46 Cal.App.4th 1542, 1557-58.  “ ‘[S]ubstantial justification” has been understood to mean that a justification is clearly reasonable because it is well-grounded in both law and fact.”  Doe v. U.S. Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1434.

Finally, the Court gives notice of intent to consider appointing a discovery referee, in light of unusually voluminous discovery matters pending in this case.  CCP   § 639.