Judge Michael E. Whitaker, Case 21STCV29817 2023-01-13 Tentative Ruling

Judge: Michael E. Whitaker, Case: 21STCV29817, Date: 2023-01-13 Tentative Ruling

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged). Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

Plaintiff Henry Leslie sued Defendants Gerardo Rendon Venegas and Western Freight Carrier, Inc. (collectively, Defendants) based on injuries Plaintiff alleges he sustained in an automobile collision. Plaintiff moves to quash the deposition subpoena for production of business records Defendants served on Plaintiff’s current employer, United Postal Service (UPS). Defendants have not filed an opposition to the motion.

If a subpoena requires the production of documents, the court may quash the subpoena entirely or modify it. (Code Civ. Proc., § 1987.1, subd. (a).) In ruling on a motion to quash, “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).)

Current discovery standards hold that, “any party may obtain discovery regarding any matter, not privileged,[1] that is relevant to the subject matter involved in the pending action . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Board of Registered Nursing v. Superior Court (2021) 59 Cal.App.5th 1011, 1039 (hereafter Board of Nursing).) “To meet this [test], a party seeking to compel [the] production of records . . . must articulate specific facts justifying the discovery sought; it may not rely on mere generalities.” (Ibid.; see Johnson v. Superior Court (1968) 258 Cal.App.2d 829, 837 [finding that a subpoena was “insufficient” to compel production because it was “based wholly on the [party’s] alleged information and belief without any statement of supporting facts”].) However, “[e]ven if information is otherwise discoverable, it may be protected by a constitutional or statutory privilege[,] [including] the right to privacy . . . .” (Board of Nursing, supra, 59 Cal.App.5th at p. 1039.)

“The state Constitution expressly grants Californians a right of privacy. Protection of informational privacy is the provision's central concern. . . . 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.^{^[2]} 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 [cleaned up].)

“Legally recognized privacy interests [include] interests in precluding the dissemination or misuse of sensitive and confidential information (‘informational privacy’) . . . .” (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35.) “A particular class of information is [sensitive or confidential] when well-established social norms recognize the need to maximize individual control over its dissemination and use to prevent unjustified embarrassment or indignity.” (Ibid.)

Complete personnel file from the first date of employment to the present, including but not limited to any type of employment applications; any type of records pertaining to performance evaluations and/or employee reviews; insurance records; worker's compensation and/or disability records, including documentation regarding notification to employer, benefit review conferences, indemnity benefits, medical benefits, releases to return to work, doctor's reports and medical bills; any type of medical records; any type of accident reports, including witness statements; any type of incident reports; any type of records regarding or outlining employee benefits; any interoffice correspondence and/or notes; any type of absenteeism records and/or time cards and every such record, including those existing in electronic or magnetic form, in the possession, custody or control of the said witness, and every such record to which the witness may have access. The date range of records needed is Any and all records.

Plaintiff has a right of privacy in his employment records. (See Alch v. Superior Court¿(2008) 165 Cal.App.4th 1412, 1426.) For this reason, the Court cannot order disclosure of the records of Plaintiff’s employment, unless it determines that disclosure serves a compelling interest. (See Britt v. Superior Court (1978) 20 Cal.3d 844, 855-856.)

Defendants have not opposed the motion and have therefore failed to publish what Plaintiff has stated in his discovery responses that would warrant compliance with the subpoena as crafted. Without such information, the Court cannot determine that the subject subpoena is narrowly tailored to the specific issues Plaintiff has brought before the Court.

Accordingly, the Court finds Plaintiff has carried his threshold burden of establishing a legally protected privacy interest, an objectively reasonably expectation of privacy in the given circumstances, and a threatened intrusion that is serious.

Therefore, the Court grants Plaintiff’s motion to quash the subpoena Defendants served on UPS, and orders said subpoena quashed.

Plaintiff shall give notice of the Court’s ruling and file a proof of service of such.

[1] “A patient has a statutory privilege to refuse to disclose, and to prevent another from disclosing, any confidential communication between the patient and a physician, or between the patient and a psychotherapist, absent waiver or some statutory exception to the privilege. These privileges apply to discovery as well as to trial, and they preclude disclosure to the court as well as to the parties.” (Simek v. Superior Court (1981) 117 Cal.App.3d 169, 173 [cleaned up].) Specifically, the Evidence Code holds that “[t]he patient, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and physician . . . .” (Evid. Code, § 994; see also Evid. Code, § 1014 [“the patient, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist”].) However, the Evidence Code provides that “there is no privilege under this article as to any communication relevant to an issue concerning the condition of the patient if such issue has been tendered by” the patient or a patient-related party. (See Evid. Code, § 996; see also Evid. Code, § 1016 [regarding a patient’s emotional or mental condition].)

[2] “This initial inquiry is necessary to permit courts to weed out claims that involve so insignificant or de minimis an intrusion on constitutionally protected privacy interests as not even to require an explanation or justification by the defendant.” (Lewis v. Superior Court (2017) 3 Cal.5th 561, 571 [cleaned up].)

DEPARTMENT	32
HEARING DATE	January 13, 2023
CASE NUMBER	21STCV29817
MOTION	Motion to Quash Subpoena
MOVING PARTIES	Plaintiff Henry Leslie
OPPOSING PARTY	None