Judge Michelle Williams Court, Case BC714514 2022-08-02 Tentative Ruling

Judge: Michelle Williams Court, Case: BC714514, Date: 2022-08-02 Tentative Ruling

Case Number: BC714514 Hearing Date: August 2, 2022 Dept: 74

BC714514 TABITHA LAWSON VS LOS ANGELES UNIFIED SCHOOL DISTRICT

(1) Plaintiff’s Motion to Quash Defendant Los Angeles Unified School District Subpoena for Production of Business Records to Kaiser Permanente Empire Corporate Plaza Central ROI Unit; Request for Attorney’s Fees and Sanctions Against Defendants and/or their Attorneys of Record in the Amount of $3600;

(2) Plaintiff’s Motion to Quash Defendant Los Angeles Unified School District Subpoena for Production of Business Records to Service Employees’ International Union Local 99; Request for Attorney’s Fees and Sanctions Against Defendants and/or their Attorneys of Record in the Amount of $3600.

TENTATIVE RULINGS:

The Court modifies the subpoena issued to Kaiser Permanente Empire Corporate Plaza Central ROI Unit to the following categories:

1. Any and all medical records, injury records, pain management records related to any and all complaints, injuries including tests, reports, x-ray reports, summaries, notes, memoranda, correspondence, charts, excel sheets, data and other writings, including writings referenced in any written report or opinions regarding Tabitha Lawson suffering from diabetes, stress, anxiety, depression or any mental illness from 2015 to present.

2. A printout of all computer data and electronic copy on disk, flash drive or other reasonable and customary useable form, containing all computer data created by, reviewed by, or otherwise used relating to the treatment of Tabitha Lawson for diabetes, stress, anxiety, depression or any mental illness from 2015 to present.

3. Any files concerning Tabitha Lawson the treatment of Ms. Lawson for diabetes, stress, anxiety, depression or any mental illness, including all intake notes, counseling notes, treatment notes, billings, payments and invoices from 2015 to present.

4. All writings that record, reflect or otherwise document all communications by and between KAISER PERMANENTE and/or anyone acting on its behalf and Tabitha Lawson regarding the need for a reasonable accommodation, medical leave, or treatment of Ms. Lawson for diabetes, stress, anxiety, depression or any mental illness from 2015 to present.

The Court modifies the subpoena issued to Service Employees’ International Union Local 99 to solely request documents submitted by Plaintiff or her representatives to SEIU regarding her harassment and discrimination allegations against Defendant and its employees.

The Court declines to impose sanctions.

Background

On July 18, 2018, Plaintiff Tabitha Lawson filed a complaint against Defendant Los Angeles Unified School District. The complaint alleged eight causes of action: (1) Discrimination, (2) Failure to Reasonably Accommodate, (3) Failure to Engage in Interactive Process, (4) Associational Discrimination, (5) Retaliation, (6) Harassment/Hostile Work Environment, (7) Failure to Prevent Harassment, Discrimination and Retaliation, and (8) Violations of the California Family Rights Act. Plaintiff alleges that during her time with the LAUSD she was discriminated against because of her disability and experienced a hostile work environment. While on leave, Plaintiff alleges that she was separated from District service.

Motions

On December 20, 2021, Plaintiff filed the instant motions to quash Defendant’s subpoenas directed to Service Employees’ International Union Local 99 and Kaiser Permanente Empire Corporate Plaza Central ROI Unit. Plaintiff argues her medical and employment records are protected by her right to privacy and the subpoenas are an impermissible fishing expedition.

Opposition

In opposition, Defendant contends Plaintiff waived any privilege she had in the documents requested, which are directly relevant to Plaintiff’s claims in this action.

Reply

In reply, Plaintiff reiterates her arguments made in the initial motion, withdraws a portion of her objection to the SEIU subpoena, and argues Defendant has not made the required showing to justify production of the documents sought.

Discussion

Standard

A 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.” (Code Civ. Proc. § 1987.1; Lee v. Swansboro Country Property Owners Ass'n (2007) 151 Cal.App.4th 575, 582-83.)

Plaintiff’s Counsel Must Not File Documents Containing Plaintiff’s Social Security Number

The Court notes the subpoenas attached to Plaintiff’s motions contain Plaintiff’s full, unredacted social security number. (White Decls. Ex. A.) “To protect personal privacy and other legitimate interests, parties and their attorneys must not include, or must redact where inclusion is necessary, the following identifiers from all pleadings and other papers filed in the court's public file, whether filed in paper or electronic form, unless otherwise provided by law or ordered by the court: (1) Social security numbers. If an individual's social security number is required in a pleading or other paper filed in the public file, only the last four digits of that number may be used.” (Cal. R. Ct., rule 1.201(a).) “The responsibility for excluding or redacting identifiers identified in (a) from all documents filed with the court rests solely with the parties and their attorneys.” (Cal. R. Ct., rule 1.201(b).)

Subpoena to Kaiser Permanente Empire Corporate Plaza Central ROI Unit

On April 2, 2021, Defendant issued a deposition subpoena for production of business records to Kaiser Permanente Empire Corporate Plaza Central ROI Unit, requesting that it produce the following:

3. The entire file concerning Tabitha Lawson, including all intake notes, counseling notes, treatment notes, billings, payments and invoices from 2015 to present.

4. All writings that record, reflect or otherwise document all communications by and between Kaiser Permanente and/or anyone acting on its behalf and Tabitha Lawson from 2015 to present.

(White Decl. Kaiser Motion Ex. A.)

As argued by Plaintiff, her medical records are protected by her constitutional right to privacy and Defendant does not dispute this general proposition. (Grafilo v. Wolfsohn (2019) 33 Cal.App.5th 1024, 1034 (“that right is well-settled.”).) Defendant contends Plaintiff put her emotional state at issue and therefore has waived any privacy right or privilege related to the documents sought.

“[A]lthough in seeking recovery for physical and mental injuries plaintiffs have unquestionably waived their physician-patient and psychotherapist-patient privileges as to all information concerning the medical conditions which they have put in issue, past cases make clear that such waiver extends only to information relating to the medical conditions in question, and does not automatically open all of a plaintiff's past medical history to scrutiny.” (Britt v. Superior Court (1978) 20 Cal.3d 844, 849.) As to mental conditions, the Court is guided by the discussion in Vinson v. Superior Court (1987) 43 Cal.3d 833, in which the court addressed claims for emotional distress in the context of a request for the mental examination of the plaintiff. The Court noted: “[i]n the case at bar, plaintiff haled defendants into court and accused them of causing her various mental and emotional ailments. Defendants deny her charges. As a result, the existence and extent of her mental injuries is indubitably in dispute.” (Id. at 839-40.) The Court further stated: “Plaintiff's present mental and emotional condition is directly relevant to her claim and essential to a fair resolution of her suit; she has waived her right to privacy in this respect by alleging continuing mental ailments.” (Id. at 842.) Plaintiff has a reasonable expectation of privacy in these medical records, and Defendant’s request seeking the production of all such records constitutes a serious invasion of Plaintiff’s right to privacy.

“In the face of an objection based on privacy, the party seeking discovery of the information must show that the information is ‘directly relevant’ to a cause of action or defense, such that disclosure is ‘essential to the fair resolution of the lawsuit.’” (Look v. Penovatz (2019) 34 Cal.App.5th 61, 73.) Plaintiff’s complaint alleges she was hospitalized after a suicide attempt due to the “immense pressure placed on Plaintiff by Sosa,” (Compl. ¶ 21), and seeks emotional distress damages. (Compl. at 18 ¶ 6.) Defendant provides Plaintiff’s opposing separate statement to Defendant’s motion for summary judgment in which Plaintiff stated “Plaintiff was disabled, suffering from anxiety, depression and diabetes.” (Hayden Decl. Ex. 6.) Plaintiff testified she is taking anxiety medication prescribed by Kaiser. (Hayden Decl. Ex. 7, Lawson Depo. at 14:25-15:24.)

Defendant’s subpoena is impermissibly overbroad as drafted because it is not limited to any specific conditions or symptoms and effectively seeks all documents in Kaiser’s possession related to Plaintiff. (See e.g. Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1017–18 (“We are mindful of the scope of the materials requested. Real party seeks any and all medical or hospital records relating to the care and treatment of petitioner to date; real party has made no attempt to limit the request to specific matters directly relevant to petitioner’s pain and suffering from the physical injuries.”).) There is no evidence before the Court indicating Kaiser treated Plaintiff solely for the conditions she has placed at issue. Accordingly, compliance with the subpoena would likely result in the production of numerous irrelevant confidential medical records.

On June 28, 2022, Plaintiff inquired whether Defendant would “agree to further narrow the Kaiser subpoena to subject matters related to this case.” (Hayden Decl. Ex. 10.) On July 6, 2022, Defendant proposed the following modifications to the subpoena, which would limit the documents sought to:

1. Any and all medical records, injury records, pain management records related to any and all complaints, injuries including tests, reports, x-ray reports, summaries, notes, memoranda, correspondence, charts, excel sheets, data and other writings, including writings referenced in any written report or opinions regarding Tabitha Lawson suffering from diabetes, stress anxiety, depression or any mental illness from 2015 to present.

2. A printout of all computer data and electronic copy on disk, flash drive or other reasonable and customary useable form, containing all computer data created by, reviewed by, or otherwise used relating to the treatment of Tabitha Lawson for diabetes, stress anxiety, depression or any mental illness from 2015 to present.

3. Any files concerning Tabitha Lawson the treatment of Ms. Lawson for diabetes, stress anxiety, depression or any mental illness, including all intake notes, counseling notes, treatment notes, billings, payments and invoices from 2015 to present.

4. All writings that record, reflect or otherwise document all communications by and between KAISER PERMANENTE and/or anyone acting on its behalf and Tabitha Lawson regarding the need for a reasonable accommodation, medical leave, or treatment of Ms. Lawson for diabetes, stress anxiety, depression or any mental illness from 2015 to present.

(Hayden Decl. Ex. 11.) Defendant does not provide Plaintiff’s response to this proposal, if any.

Court intervention may have been avoided had Defendant withdrawn the prior overbroad subpoena and issued a new one consistent with this email. The Court finds these limitations appropriate. The revised categories seek documents specifically tailored to the medical conditions Plaintiff has placed at issue in this action.

The motion is GRANTED in part. The Court modifies the subpoena issued to Kaiser Permanente Empire Corporate Plaza Central ROI Unit consistent with the categories listed in Defendant’s July 6, 2022 email above. (Hayden Decl. Ex. 11.)

Subpoena to Service Employees’ International Union Local 99

On April 2, 2021, Defendant also issued a deposition subpoena for production of business records to Service Employees’ International Union Local 99, requesting that it produce the following:

1. All documents including applications, payments, statements, ledgers, records, reports, incident reports, evaluations, complaints, grievances, summaries, notes, memoranda, correspondence, charts, excel sheets, data and other writings, including writings referenced in any written reports, employment, gig work, decisions, opinions, insurance and benefits regarding TABITHA LAWSON.

3. The entire file concerning TABITHA LAWSON including all intake notes, notes, applications, payments, summaries, and statements.

4. All writings that record, reflect or otherwise document all communications by and between SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 99, and/or anyone acting on its behalf and TABITHA LAWSON.

(White Decl. SEIU Motion Ex. A.)

As an initial matter, Defendant impermissibly cites a superior court opinion, which has no precedential value. (Opp. at 10:2-3. See City of Bakersfield v. West Park Home Owners Assn. & Friends (2016) 4 Cal.App.5th 1199, 1210; Aguirre v. Amscan Holdings, Inc. (2015) 234 Cal.App.4th 1290, 1299 n.5 (“Rule 8.1115 of the California Rules of Court prohibits the citation of unpublished opinions of California state courts, with certain limited exceptions. (Cal. Rules of Court, rule 8.1115(a).) We shall disregard the unpublished superior court opinions cited and relied upon by plaintiff.”).) Plaintiff faults Defendant for citing federal district court case Sirota v. Penske Truck Leasing Corp. (N.D. Cal., Mar. 17, 2006, No. C05-03296 SI) 2006 WL 708910. (Reply at 6:26-7:15.) However, nothing precludes citation to unpublished federal district court opinions as persuasive authority. (See e.g. Futrell v. Payday California, Inc. (2010) 190 Cal.App.4th 1419, 1433 n.6 (“Although not binding precedent on our court, we may consider relevant, unpublished federal district court opinions as persuasive.”).)

In the initial motion Plaintiff described SEIU as “Plaintiff’s Union while working at LAUSD.” (Mot. at 1:20-21.) In its opposition, Defendant identifies SEIU as “Plaintiff’s subsequent employer.” (Opp. at 10:26-27.) Plaintiff confirms in reply that she was never employed by SEIU. (Reply at 6:18-24.) Accordingly, it appears SEIU would not have many of the documents sought by the subpoena.

Defendant sought Plaintiff’s employment records, which are protected by the right to privacy. (Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 528 (“It is manifest that the subject documents and communications of Dr. Dong's personnel, tenure, and promotion files, whether relating only to his initial employment, or also to his “promotion, additional compensation, or termination,” were communicated to the University in confidence, and were thus covered by the communicators' constitutional right of privacy.”) (disapproved on other grounds by Williams v. Superior Court (2017) 3 Cal.5th 531, 557); El Dorado Savings & Loan Assn. v. Superior Court (1987) 190 Cal.App.3d 342, 345 (“plaintiffs acknowledge the personnel records of petitioner Morris are protected by the right of privacy”) (disapproved on other grounds by Williams, supra); Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1251 (describing the privacy interest in employment records as “obvious”).) Plaintiff has a reasonable expectation of privacy in these records, and Defendant’s request seeking the production of all such records is a serious invasion of Plaintiff’s right to privacy.

As with the Kaiser subpoena, Defendant’s April 2, 2021 subpoena issued to SEIU is impermissibly overbroad as it was not limited in time or to any potentially relevant information in this action. The subpoena effectively seeks every document in SEIU’s possession related to Plaintiff. Accordingly, compliance with the subpoena would likely result in the production of numerous irrelevant confidential employment records and other irrelevant documents such as all routine union correspondence with Plaintiff. “There is an absence of specific facts relating to each category of materials sought to be produced; the justifications offered for the production are mere generalities. The very vice of the subpoena's promiscuity is well illustrated by [Defendant’s] inability to provide focused, fact-specific justifications for its demands. The noted generality of the subpoena’s definitions, instructions and categories which merely add up to a demand [SEIU] produce everything in its possession having anything to do with [Plaintiff.]” (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224.)

In reply, Plaintiff states “[w]ith respect to documents submitted to the Union SEUI, Plaintiff withdraws objections to the subpoena issued to SEUI, but clarifies that Lawson was never employed by SEUI.” (Reply at 2:5-6. See also Reply at 6:24-25 (“With respect to documents submitted to the Union we withdraw our objections the subpoena issued to SEIU and would want a copy of the documents submitted to the Union.”).) Accordingly, the subpoena to SEIU shall be modified to solely request documents submitted by Plaintiff or her representatives to SEIU regarding her harassment and discrimination allegations against Defendant and its employees.

Sanctions

Code of Civil Procedure section 1987.2(a) provides “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.” Sanctions pursuant to this statute are discretionary.

The Court finds both parties acted with substantial justification and declines to impose sanctions.