Judge: Michael P. Linfield, Case: 21STCV38751, Date: 2023-04-27 Tentative Ruling
Case Number: 21STCV38751 Hearing Date: April 27, 2023 Dept: 34
SUBJECT: Motion for an
Order Quashing/Modifying Defendant’s Subpoena, and/or, in the Alternative, for
Protective Order, and Request for Sanctions
Moving Party: Plaintiff
Ramy Mandujano
Resp. Party: Defendant Metro Services Group
Plaintiff’s Motion is GRANTED.
Plaintiff’s Request for Sanctions is GRANTED. Monetary sanctions are
AWARDED in favor of Plaintiff and against Defendant in the amount of $2,310.00.
Defendant’s Request for Sanctions is DENIED.
BACKGROUND:
On October
20, 2021, Plaintiff Ramy Mandujano filed her Complaint against Defendant Metro
Services Group on causes of action arising from Plaintiff’s employment with
Defendant.
On January
12, 2022, Defendant filed its Answer.
On April 3, 2023,
Plaintiff filed her Motion for an Order Quashing/Modifying Defendant’s
Subpoena, and/or, in the Alternative, for Protective Order, and Request for
Sanctions. Plaintiff concurrently filed her Proposed Order.
On April 14,
2023, Defendant filed its Opposition. Defendant concurrently filed Declaration
of Ruby Zapien. Defendant’s Opposition includes a Request for Sanctions.
On April 18,
2023, the Court granted Defendant’s Motion to Bifurcate. The Court also
continued the trial in this matter to August 14, 2023 and reset the discovery
cutoff dates to be determined by the new trial date.
On April 21,
2023, Plaintiff filed her Reply.
ANALYSIS:
I.
Legal
Standard
California
Code of Civil Procedure section 1987.1, subdivision (a) states:
“If a subpoena requires the attendance of a
witness or the production of books, documents, 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 of Civil
Procedure section 2025.420 states in pertinent part:
“(a) Before, during, or after a deposition,
any party, any deponent, or any other affected natural person or organization
may promptly move for a protective order. The motion shall be accompanied by a
meet and confer declaration under Section 2016.040.
“(b) The court, for good cause shown, may
make any order that justice requires to protect any party, deponent, or other
natural person or organization from unwarranted annoyance, embarrassment, or
oppression, or undue burden and expense.”
Courts have considerable discretion in
granting and crafting protective orders. (Raymond
Handling Concepts Corp. v. Super. Ct. (1995) 39 Cal.App.4th 584, 588.)
II.
Discussion
A.
The
Parties’ Arguments
Plaintiff moves the Court to quash Defendant’s subpoenas on the grounds
that: (1) it is past the discovery cutoff dates without leave of Court; and (2)
the subpoena is overbroad, harassing, and violative of Plaintiff’s privacy.
(Motion, p. 5:10–24, 8:15–16, 10:6.)
Defendant opposes the Motion, arguing:
(1) Defendants’ subpoenas were timely and not unreasonable or oppressive; and
(2) that if the Court does grant this Motion, the Court should grant Motion in
Limine No. 3 to exclude testimony from medical providers regarding Plaintiff’s
alleged injury. (3:17–18, 5:1–2.)
In her Reply, Plaintiff changes her
argument, citing Code of Civil Procedure sections 2034.410, 2034.415, and
2023.030, subdivision (a) for the proposition that the Defendant should have
instead set the depositions with deposition notices and thus the Court should
sanction Defendant. (Reply, pp. 2:13–27, 3:1–13.)
B.
Timeliness
and Deposition Notice Arguments
Two of Plaintiff’s arguments can be quickly addressed.
First, the Court extended the discovery cutoff dates on April 18, 2023.
Thus, to the extent that Plaintiff correctly argued that the subpoenas were
filed past the discovery cutoff dates without leave of Court, that issue is now
moot and the subpoenas are now timely.
Second, Plaintiff’s argument in her Reply regarding deposition notices
is a new argument that is not responsive to anything in the Motion or the
Reply.
“Points raised in the reply brief for the first time will not be
considered, unless good reason is shown for failure to present them before. To
withhold a point until the closing brief deprives the respondent of the
opportunity to answer it or requires the effort and delay of an additional
brief by permission.”¿(Campos v. Anderson¿(1997) 57 Cal.App.4th 784, 794,
fn.3;¿See also,¿Balboa Ins. Co. v. Aguirre¿(1983) 149 Cal.App.3d 1002,
1010;¿Neighbours v. Buzz Oates Enters.¿(1990) 217 Cal.App.3d 325, 335,
fn. 8;¿Alcazar v. LAUSD¿(2018) 29 Cal.App.5th 86, fn. 5.)¿
¿
Plaintiff’s new argument may or may not be correct. However, as no good
reason is shown for failure to present the new argument earlier, the Court does
not consider it at this time.
C.
Privacy
1.
Legal
Standard
The California Constitution includes the inalienable
right to privacy. (Cal. Const., Art. I, § 1.)
“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. The party seeking information may
raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking
protection may identify feasible alternative 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. Super. Ct. (2017)
3 Cal.5th 531, 552, citing Hill v. Nat’l Collegiate Athletic Ass’n (1994) 7 Cal.4th 1, 35.)
The balancing
test outlined in Hill applies whenever lesser privacy interests are at
stake. (Id. at 556.) The Court only applies the higher “compelling
interest” standard to justify “an obvious invasion of an interest fundamental
to personal autonomy.” (Id.)
A party must meet the compelling
interest standard to discover an opposing party’s medical information, and that
standard is not met simply by the filing of an action alleging garden-variety
damages. (Davis v. Super. Ct. (1992) 7 Cal.App.4th 1008, 1015, 1020.)
2.
Discussion
The cause of action in this case primarily involves allegations that
Defendant engaged in disability-based discrimination against Plaintiff.
(Complaint, pp. 1–2.) Although the Complaint includes a count for intentional
infliction of emotional distress, the pleadings do not indicate that Plaintiff
is alleging anything more than garden-variety emotional distress. (Id.
at ¶¶ 35, 89–94.)
Defendant argues that it needs Plaintiff’s medical records “to
understand the extent of Plaintiff’s alleged disability”. (Opposition, p.
2:24–25.) Defendant served subpoenas on 14 entities for Plaintiff’s psychiatric
records, medical records, and billing records. (Motion, pp. 6–8.) Each of these
subpoenas specifically seeks:
“Any and all DOCUMENTS which refer or relate
to Ramy Mandujano by any healthcare professional for any medical condition,
pain, discomfort, aching, hurt, injury, tear, ailment, disorder, illness,
medical procedure, surgery, or complaint related to Ramy Mandujano's mental and
physical health, including but not limited to, anxiety, stress, left leg, and
left ankle, left heel, and left foot from May 2021 to the present. Such records
include, but are not limited to, correspondence, files, charts, billing
records, notes by doctors, nurses, counselors, therapists and/or health care
providers, psychotherapy records, diagnoses, prognoses, requests or
recommendations for treatment, request or recommendations for prescription or
non-prescription drugs, and memorialization of all discussions, related
procedures performed on, requested by or given to Ramy Mandujano, including but
not limited to all check-in sheets, medical questionaries' or checklists
completed by patient.
“The term ‘DOCUMENTS’ means any writing,
including, but not limited to, the original or a copy of handwriting,
typewriting, printing, photostating, photographing, videotaping, computer disk,
computer backup tape or download, and every other means of recording, as well
as any form of communicating or representation, including letters, e-mails,
words, pictures, sound or symbols, or any combination thereof.”
(Motion, Exhs. A–N,
Attachment 3.)
These subpoenas are not narrowly tailored
in any sense of that phrase. The subpoenas ask for medical and mental health
materials which are not reasonably at issue here given the garden-variety
emotional distress at issue. The subpoenas also appear to be unlimited in
scope, which would make it hard for a medical provider to determine what should
(and, importantly, should not) be provided in response to the subpoena. Further,
the subpoenas use such phrases as: “[a]ny and all DOCUMENTS”; “refer or relate
to Ramy Mandujano”; “related to Ramy Mandujano’s mental and physical health”;
and “including but not limited to.” These phrases by themselves make the
requested documentation vastly overbroad.
The Court finds that Defendant has not met
the compelling interest standard here. Defendant has not sufficiently explained
to the Court why a narrower invasion of privacy would be insufficient to meet
Defendant’s discovery needs.
The Court GRANTS Plaintiff’s Motion.
The Court notes that Motion in Limine
No. 3 is not currently before the Court. The Court will consider Motion in
Limine No. 3 if and when it is before the Court.
D.
Sanctions
1.
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.” (Code Civ. Proc., § 1987.1, subd. (a).)
¿
“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).)
¿
2.
Discussion
Plaintiff and Defendant both request sanctions.
Plaintiff requests $2,310.00 in monetary sanctions, based on five hours
of work at $450.00 per hour and a $60.00 filing fee. (Motion, p. 13:4–6 and
Decl. Martirosyan, ¶ 3.)
Defendant requests $1,950.00 in monetary sanctions, based on 3.5 hours
of work at $370.00 per hour and 1.5 hours of work at $560.00 per hour.
(Opposition, p. 5:18–19; Decl. Zapien, ¶ 9.)
Plaintiff prevailed on the Motion, and one or more of the requirements
of the subpoena was oppressive on the basis of violating Plaintiff’s right to
privacy. Court DENIES Defendant’s Request for Sanctions and GRANTS Plaintiff’s
Request for Sanctions.
It is not uncommon for courts
to compare opposing counsel’s fees to help determine whether the moving party’s
fees are reasonable. That is because a “comparative analysis of each side’s
respective litigation costs may be a useful check on the reasonableness of any
fee request.” (Mountjoy v. Bank of Am., N.A. (2016) 245
Cal.App.4th 266, 273, 281, quoting Donahue v. Donahue (2010)
182 Cal.App.4th 259, 272.) “[T]here is one particularly good indicator of
how much time is necessary [for the purpose of determining reasonableness of
attorneys’ fees] . . . and that is how much time the other side’s lawyers spent
. . . [S]uch a comparison is a useful guide in evaluating the appropriateness
of time claimed. If the time claimed by the prevailing party is of a
substantially greater magnitude than what the other side spent, that often
indicates that too much time is claimed. Litigation has something of the tennis
game, something of war, to it; if one side hits the ball, or shoots heavy
artillery, the other side necessarily spends time hitting the ball or shooting
heavy artillery back.” (Democratic Party of Washington State v. Reed (9th Cir.
2004) 388 F.3d 1281, 1287.)
The
Court might normally find that that the number of hours spent on this motion
was not reasonable. However, Defendant’s Counsel appear to agree that at least
$1,950.00 is the reasonable value of work done on this Motion.
Plaintiff has provided evidence that counsel spent $2,310.00 in attorney's
fees and costs. Not counting costs, this
is just 15% more than Defendant incurred.
The Court AWARDS monetary sanctions in favor of Plaintiff and against
Defendant in the amount of $2,310.00.
III.
Conclusion
Plaintiff’s Motion is GRANTED.
Plaintiff’s Request for Sanctions is GRANTED. Monetary sanctions are
AWARDED in favor of Plaintiff and against Defendant in the amount of $2,310.00.
Defendant’s Request for Sanctions is DENIED.