Judge: Mel Red Recana, Case: 21STCV23487, Date: 2024-09-25 Tentative Ruling
Case Number: 21STCV23487 Hearing Date: September 25, 2024 Dept: 45
Hearing
date: September
25, 2024
Moving
Party: Plaintiff
Ashley Nicole Countee
Responding
Party: Defendant
American Rag Cie, LLC
Motions
to Quash or Modify Defendant’s Subpoenas of Employment Records of Subsequent
Employers Served on Third Parties
The Court
considered the moving, opposition and reply papers.
The Court GRANTS
Plaintiff’s Motion to Quash Defendant’s subpoenas for the production of records
served on third the following third parties: (1) Nordstrom, Inc. – Nordstrom;
(2) Nordstrom, Inc. – Nordstrom Rack; (3) Beauty Systems Group, LLC. Dba Cosmoprof;
and (4) The Belle (the “Prior Employer”).
The Court GRANTS
Plaintiff’s Motion to Quash Defendant’s subpoenas for the production of records
served on third the following third parties: (1) Buck Mason and (2) Dover
Street Market LA, LLC (the “Subsequent Employee”).
Background
Two motions to quash business records subpoenas are presently before the
Court. Plaintiff Ashley Nicole Countee (“Plaintiff”) moves for orders quashing
service of the February 28, 2024, Deposition Subpoenas for the Production of
Business Records (collectively, the “Subpoenas”) served by Defendant American
Rag Cie, LLC (“Defendant”) on Plaintiff’s four prior employers, non-parties (1)
Nordstrom, Inc. d/b/a Nordstrom; (2) Nordstrom, Inc., d/b/a Nordstrom Rack, (3)
Beauty Systems Group, LLC d/b/a Cosmoprof; and (4) The Belle (the “Prior
Employers”), and two subsequent employers, nonparties: (1) Buck Mason and (2)
Dover Street Market LA, LLC (the “Subsequent Employers”), or in the alternative,
limiting the scope to implicate only pay and mitigation documents to which
Defendant is entitled to. (Notices of Motion, p. 2.)
Plaintiff filed the instant motion on March 22, 2024. On September 12,
2024, Defendant filed oppositions together with a response separate statement
and supporting declaration. On September 18, 2024, Plaintiff filed a reply to
the opposition. In light of the similarity of the motions which are all
directed at quashing depositions subpoenas seeking personnel records from Plaintiff’s
employers and given the issues raised in the opposition, the Court addresses
the motions collectively.
On June 23, 2021, Plaintiff Ashley Nicole Countee (“Plaintiff”) filed her
Complaint against Defendants American Rag Cie, LLC, and DOES 1-20, inclusive.
Specifically, the Complaint alleges the following thirteen causes of action: (1)
Failure to Grant Medical Leave in Violation of the Cal. Family Rights Act
(“CFRA”); (2) Failure to Reinstate in Violation of CFRA (3) Denial of Medical
Leave in Violation CFRA; (4) Restraint of Medical Leave in Violation of CFRA;
(5) Interference with Medical Leave in Violation of CFRA; (6) Discrimination in
Violation of CFRA; (7) Retaliation in Violation of CFRA; (8) Disability
Discrimination in Violation of the Fair Employment and Housing Act (“FEHA”);
(9) Failure to Engage in the Interactive Process in Violation of FEHA; (10) Failure
to Provide Reasonable Accommodation in Violation FEHA; (11) Retaliation in
Violation of FEHA; (12) Failure to Prevent Discrimination and Retaliation in
Violation of FEHA; and (13) Wrongful Termination in Violation of Public Policy.
On March 29, 2022, the stay as to binding arbitration was lifted by the
Court, following the parties Stipulation to Vacate the Stay of Proceedings
Ordered on August 13, 2021. (3-29-22 Minute Order.) On July 25, 2022, Defendant
filed its answer, raising 31 affirmative defenses.
On or about February 28, 2024, Defendant
served Plaintiff Notice of its intent to serve Subpoenas seeking production of
business records on Plaintiff’s non-party Prior Employers and Subsequent
Employers by March 28, 2024. (Motions to Quash, p. 4; Declaration of Charlene Nercess
(“Decl. of Nercess”) ¶ 5; Exhibit B.) Defendant also served the Subpoenas on Plaintiff’s
Prior Employers and Subsequent Employers requesting employment records,
including personnel files and payroll records. (Oppositions, p. 4; Declaration
of Anand Mathew (“Decl. of Mathew”), ¶ 5; Exhibit C.) Specifically, each Subpoena
seeks, “All employment records relating to the employment of Ashley Countee,
including but not limited to: personnel file including any records related to
her application, hiring, promotion, compensation, benefits, and termination.
Performance evaluations, including any records related to her job performance,
attendance, punctuality, and conduct. Disciplinary records, including any
records related to any investigations, warnings, suspensions, or terminations.
Payroll records, including any records related to her compensation, timecards
reflecting hours worked, and overtime. Training records, including any records
related to any training or certifications received by Ashley Countee.” (Id.; Motions, p. 4.)
On March 18, 2024, counsel for
Plaintiff delivered a meet and confer letter to counsel for Defendant,
requesting Defendant withdraw the Subpoenas to Plaintiff’s Prior Employers and Subsequent
Employers, to dictate the records pursuant to a First Look Agreement. (Decl. of
Mathew, ¶ 6; Exhibit D.)
On March 20, 2024, counsel for
Defendant mailed a Meet and Confer letter to Plaintiff’s counsel based on its
position that the Prior Employer and Subsequent Employer business records were
essential to the resolution of the case, as they relate to affirmative defenses
raised in Defendant’s answer. (Decl. of Mathew, ¶ 7.) The same day, Plaintiff’s
counsel directed Defense counsel to withdraw the Subpoenas. (Decl. of Mathew, ¶
8.) The following day, Defense counsel reiterated by email to Plaintiff’s
counsel that the payroll records were relevant. (Decl. of Mathew, ¶ 9.)
On March 22, Plaintiff filed the instant motion to quash or modify the
Subpoenas.
Legal
Standard
“C.C.P. §1987.1(a)
provides, in pertinent part, as follows: “If a subpoena requires the attendance
of a witness or the production of books, documents, electronically stored
information, or other things… at the taking of a deposition, the court, upon
motion reasonably made by [a party]…, 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.”
“Any employee
whose employment records are sought by a subpoena duces tecum may, prior to the
date for production, bring a motion under Section 1987.1 to quash or modify the
subpoena duces tecum. . . .” (CCP § 1985.6(f)(1).) Under Section
1987.1, the Court “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.” (CCP § 1987.1(a).)
Discussion
Motions to Quash
Production of Employment Records of Plaintiff’s Third-Party Prior Employers and
Subsequent Employers
The Subpoenas
are overbroad in scope. The Subpoenas are open to all records are not limited
to the relevant time period or issued raised in the instant case. (Motion, p.
4.) The Subpoenas are so overbroad they seek production of documents that are
not relevant to this action and/or are invasive of Plaintiffs’ right to
privacy.
The California
Supreme Court “established a framework for evaluating potential invasions of
privacy. 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. [Citation] The party
seeking 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.” (Williams
v. Superior Court (2017) 3 Cal.5th 531, 552.)
Plaintiffs have
a legally protected privacy interest in their complete employment and personnel
records, which include protected taxpayer information. (See Brown v. Superior Court (1977) 71
Cal.App.3d 141, 143-44; Cobb v. Superior Court (1979) 99 Cal.App.3d 543;
Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516,
174.) Plaintiffs also have an
objectively reasonable expectation of privacy given the threatened intrusion is
serious.
Notably,
Defendant seeks production of Plaintiffs’ employment records, without any
limitation as to scope in content or time period. Plaintiff contends that
Defendant seeks total access to “Personnel records”, which contain private
information that exceeds the requirements of resolving this case. (Motions, p.
7.)
Plaintiff argues
that the Subpoenas should be limited to include only Plaintiff’s subsequent employment
records that are relevant to the resolution of this matters – limited only to
Plaintiff’s damages and mitigation. (Motion, p. 6.) P
In opposition, Defendant
argues that Plaintiff’s allegations of lost earnings present a “compelling
need” for Plaintiff’s Prior Employment records because as articulated in her
deposition, the information as to her start dates and compensation from
Subsequent Employers was vague. (Opposition, p. 2, ¶ 1; Deposition of Pl.,
61:15-65:24; Alch v. Superior Court (2008) 165 Cal.App.4th 1412, 1425.)
Defendant also contends that Plaintiff’s Motions place an evidentiary burden on
Defendant’s Twentieth Affirmative Defense for speculative/ uncertain damages
and Twenty-First Affirmative Defense for failure to mitigate. (Opposition, p.
2, ¶ 2; Williams v. Superior Court (2017) 3 Cal.5th 531, 551.)
Plaintiff did not put her entire employment
history at issue by filing the instant habitability action against Defendant. Upon
review of Plaintiff’s deposition, dated February 13, 2024, the Court notes that
Plaintiff stated her dates of employment, hourly rates of $16 and $20, the hours
worked, and whether overtime wages, commissions, or bonuses were paid at both
Subsequent Employers. (Deposition of Pl., 61:15-65:24.) As to the mitigation
Affirmative Defense, Plaintiff even provided the same details of her employment
with Else Lingerie – who are not the subject of the Subpoenas – after her role
at Dover Street Market LA ended. (Deposition of Pl: 64:7-65:24.) Defendant
fails to establish a compelling need for Plaintiffs’ employment records and/or
a compelling interest that outweighs Plaintiffs’ right to privacy with respect
to her comprehensive employment records.
Moreover, to the extent portions of Plaintiffs’ employment records are
not protected by privacy interests, Defendant has failed to establish that the
complete historical evidence of Plaintiffs’ employment and income is relevant
to the claims Plaintiffs assert against Defendant such that the Subpoenas are
“reasonably calculated to lead to the discovery of admissible evidence.” (C.C.P. §2017.010.)
Based on the
foregoing, Plaintiffs’ motions to quash the Subpoenas are granted.
It
is so ordered.
Dated: September 25, 2024
_______________________
MEL RED RECANA
Judge of the
Superior Court