Judge: Michael Shultz, Case: 22CMCV00124, Date: 2023-11-13 Tentative Ruling

INSTRUCTIONS: If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must:

1. Contact the opposing party and all other parties who have appeared in the action and confirm that each will submit on the tentative ruling.

2. No later than 4:00 p.m. on the court day before the hearing, call the Courtroom (310-761-4302) advising that all parties will submit on the tentative ruling and waive hearing; and

3. Serve notice of the Court's ruling on all parties entitled to receive service.

If this procedure is followed, when the case is called the Court will enter its ruling on the motion in accordance with its tentative ruling. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing. If there is neither a telephone call nor an appearance, then the matter may either be taken off calendar or ruled on. 

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Case Number: 22CMCV00124    Hearing Date: November 28, 2023    Dept: A

22CMCV00124 Bryan Neil Crawford v. The Kroger Co., dba Ralphs Grocery Company

[TENTATIVE] ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO QUASH AND/OR ENTRY FOR PROTECTIVE ORDER FOR DEFENDANT’S SUBPOENA FOR EMPLOYMENT RECORDS; REQUEST FOR SANCTIONS

I.        BACKGROUND

      The complaint alleges that Defendant employed Plaintiff as a meat clerk. Defendant allegedly retaliated against Plaintiff after he reported unlawful label tampering on meat products by changing the expiration date. Plaintiff alleges 12 employment-related causes of action arising from the alleged misconduct.

II.      ARGUMENTS

      Plaintiff argues that Defendant issued a subpoena to Plaintiff’s employer, 7-11, Inc. demanding production of all employment records. The subpoena is impermissibly overbroad and violates Plaintiff’s privacy.

      In opposition, Defendant argues that Plaintiff’s production of employment records from 7-11 contained significant gaps which Defendant sought to remedy by serving a subpoena on 7-11. The compensation records are necessary to establish whether Plaintiff sought to mitigate damages. Mental and physical health records relate to Plaintiff’s non-economic damages he claims to have suffered. Disciplinary and attendance records may relate to emotion and mental condition post-employment.

      In reply, Plaintiff argues the subpoena is superfluous because there is no dispute that Plaintiff earned more at 7/11 and mitigated his damages. Defendant already has the records establishing Plaintiff’s mitigation. The subpoena may have a negative impact on Plaintiff’s current employment as it relates to “whistleblowers”.

III.    LEGAL STANDARDS

      The right of privacy protects against compelled disclosure of employment personnel records, tax records, medical records and personal financial records pertaining to topics not placed in issue by filing the complaint. (White v. Davis (1975) 13 Cal.3d 757) [constitutional privacy]; Brown v. Superior Court (1977) 71 Cal.App.3d 141[tax and related records]; Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516 [personnel records]; SCC Acquisitions, Inc. v. Superior Court (2015) 243 Cal.App.4th 741, 754 [personal financial information].)

      Where privacy rights are implicated, the requesting party must make a threshold showing that the records sought are directly relevant to Plaintiff’s claims and are essential to the fair resolution of the lawsuit. (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1014.)  An order compelling disclosure must be narrowly tailored so as not to infringe on constitutional rights. Speculation that an answer may recover something helpful does not meet that threshold burden. (Fults v. Superior Court (1979) 88 Cal.App.3d 899, 901.)

      The party asserting privacy must establish the extent and seriousness of the prospective invasion. (Williams v. Superior Court (2017) 3 Cal.5th 531, 557.) Against that showing, the Court must weigh the countervailing interests the opposing party identifies. (Id.) The Court considers the purpose of the information sought, the effect that disclosure will have on the affected persons and parties, the nature of the objections urged by the party resisting disclosure, and whether there are less intrusive means for obtaining the requested information. (SCC Acquisitions, Inc. v. Superior Court (2015) 243 Cal.App.4th 741, 755.)

IV.    DISCUSSION

      At the November 8, 2023, hearing on Plaintiff’s ex parte application to advance this motion, the Court urged the parties to meet and confer on this issue. Defendant avers that the parties met and conferred, and Defendant offered to narrow the subpoena to include the production of compensation documents consistent with the Court’s comments at the hearing. (Supp. Decl. Daniel Kessler, ¶ 4.) Plaintiff claimed that Defendant was in possession of Plaintiff’s payroll records. (Id. ¶ 4-6.)

      Defendant has met its threshold showing that subsequent wage information is directly relevant to Plaintiff’s lawsuit since it affects Plaintiff’s mitigation of damages. However, the subpoena is impermissibly overbroad because it also includes other non-compensation related documents.

      Given defense counsel’s supplemental declaration, Defendant agreed to narrow the subpoena’s scope to production of payroll records. Defendant has otherwise not met its threshold burden for the production of all other generalized records sought.

V.      CONCLUSION

      Accordingly, the Court GRANTS Plaintiff’s motion to quash in part as it applies to all non-compensation related documents. The motion to quash is DENIED as it applies to the production of payroll records. The Court has discretion to award the amount of reasonable expenses incurred in making or opposing the motion, if the Court finds the motion was made or opposed in bad faith or without substantial justification. (Code Civ. Proc., § 1987.2.) Defense counsel, Mr. Oberbeck, argued that the 7-11 subpoena was “narrowly tailored” to obtain employment records. (Oberbeck decl., ¶ 7.) However, the subpoena was not narrowly drawn, as it sought documents concerning general agreements, disciplinary action, or a broad scope of mental and health records.

      The Court finds that $450 per hour incurred by Plaintiff’s counsel is reasonable. The Court finds that three hours to prepare this discovery motion, reply, and to appear at the hearing (reduced from five hours) were reasonably incurred. Accordingly, the Court imposes sanctions of $1,350 and $60 in filing fees payable to Plaintiff within 10 days.