Judge: Monica Bachner, Case: 20STCV12375, Date: 2023-03-16 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time.  See, e.g., CRC Rule 324(b).   All parties are otherwise encouraged to appear by Court Call for all matters.

Case Number: 20STCV12375    Hearing Date: March 16, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Plaintiff Andres Ortiz’s motion to quash Defendants Arconic Inc.’s, Arconic Global Fasteners & Rings Inc.’s, Howmet Aerospace, Inc.’s, and Arconic Corp.’s subpoena for production of business records served on The Gill Corporation is denied.

Plaintiff Andres Ortiz (“Ortiz”) (“Plaintiff”) moves to quash the subpoena for production of business records served on The Gill Corporation (“Gill”) by Defendants Arconic Inc., Arconic Global Fasteners & Rings Inc., Howmet Aerospace, Inc., and Arconic Corp. (collectively, “Arconic”) (collectively, “Plaintiffs”) on the grounds that the subpoena seeks employment records from a witness that is not Plaintiff’s current or former employer in violation of C.C.P §1985.6(a)(3), and on the grounds of irrelevancy to the subject matter, oppressiveness, insufficient particularity, and invasion of privacy.  (Notice of Motion, pgs. 1-2; C.C.P. §§1985.3, 1985.6, 1987.1.)

          Background

On March 30, 2020, Plaintiff filed his initial complaint against Defendants.  On June 18, 2020, Plaintiff filed his operative first amended complaint (“FAC”) against Defendants alleging twelve causes of action: (1) retaliation, in violation of Labor Code §1102.5; (2) retaliation, in violation of Labor Code §6310; (3) retaliation, in violation of Labor Code §§98.6, 98.7; (4) wrongful termination in violation of Labor Code §§98.6, 1102.5, 6300, 6310, 6400, 6401; (5) violation of California Code of Regulations §3203, Labor Code §§6300 et seq.; (6) violation of California Code of Regulations §3363, Labor Code §§6300 et seq.; (7) violation of California Code of Regulations §3381, Labor Code §§6300 et seq.; (8) violation of California Code of Regulations §3390, Labor Code §§6300 et seq.; (9) violation of California Code of Regulations §3400, Labor Code §§6300 et seq.; (10) intentional infliction of emotional distress (“IIED”); (11) unfair business practices in violation of Business & Professions Code §§17200, et seq.; and (12) PAGA claim for violation of Labor Code §§2698-2699.5, arising from Plaintiff’s employment at the Arconic Fastening Systems, a wholly owned division of Arconic, Inc. on February 25, 2013, and Defendants’ discharge of Plaintiff on February 16, 2019.  (See FAC.)

          Plaintiff filed the instant motion on November 29, 2022.  On March 3, 2023, Defendants filed their opposition.  On March 8, 2023, Plaintiff filed his reply.

          Motion to Quash

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.”

C.C.P. §1985.6(a)(3) provides: “Employment records” means the original or any copy of books, documents, other writings, or electronically stored information pertaining to the employment of any employee maintained by the current or former employer of the employee, or by any labor organization that has represented or currently represents the employee.  (C.C.P. §1985.6(a)(3), emphasis added.)

          On or about November 8, 2022, Defendants served a subpoena for the production of business records of Plaintiff to The Gill Corporation.  (Decl. of Mostafavi ¶3, Exh. B.)  The subpoena requests seven categories of documents relating to Plaintiff’s application for employment or employment with Gill from February 15, 2019, to the present as follows:

(1) Plaintiff’s job application(s);

(2) Documents reflecting any job offer made to Plaintiff and whether such offer was accepted or rejected;

(3) Plaintiff’s personnel file;

(4) Plaintiff’s payroll records;

(5) Documents reflecting Plaintiff’s benefit entitlements;

(6) Plaintiff’s job description; and

(7) Documents reflecting Plaintiff’s dates of employment with Gill.

(Decl. of Mostafavi ¶3, Exh. B.)

“The general rule is that the measure of recovery by a wrongfully discharged employee is the amount of salary agreed upon for the period of service, less the amount which the employer affirmatively proves the employee has earned or with reasonable effort might have earned from other employment.”  (Parker v. Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176, 181-182.)  The burden is on the employer to prove that substantially similar employment was available which the wrongfully discharged employee could have obtained with reasonable effort.  (Chyten v. Lawrence & Howell Investments (1993) 23 Cal.App.4th 607, 616.)

          Plaintiff arguments to quash the subpoena are unavailing. While Plaintiff was never employed by Gill, he states in his deposition testimony that he was offered a job by the company and turned the offer down.  (Decl. of Mostafavi ¶2, Exh. A.)  Therefore, Defendants’ subpoena to Gill is relevant to Defendants’ ability to satisfy their burden of proving whether substantially similar employment was available such that Plaintiff could have obtained employment with reasonable effort.  The information sought in Defendants’ subpoena would determine if a job offer was truly made to Plaintiff, whether he accepted or rejected the offer, the nature of the job position, and any wages and benefits that were offered to Plaintiff.

          Plaintiff’s motion makes the conclusory assertion that the subpoena is oppressive with insufficient particularity and invades the right to privacy.  (Motion, pg. 9.)  If the party seeking discovery can establish that the intrusion onto the privacy rights of another is reasonable under the circumstances, discovery is permitted.  (C.C.P §1987.1; Lee v. Swansboro Country Property Owners Association (2007) 151 Cal.App.4th 575, 582.)  Defendants’ subpoena for Plaintiff’s employment records with Gill is reasonable as it is narrowly tailored to seek specific and targeted information and the information sought could only be obtained via a subpoena directly from the custodian of such records and is not available through any other means.  Further, Plaintiff waived his right to privacy by litigating the issues of his employment, termination, wages, and benefits.  (See Bearman v. Superior Court (2004) 117 Cal.App.4th 463, 473 [“the filing of

a lawsuit may be deemed a waiver of privacy as to matters embraced by the action”].)  Plaintiff does not have a reasonable expectation of privacy in his records from Gill because Plaintiff’s duty and efforts to mitigate his damages are at issue in this case. Moreover, Plaintiff voluntarily disclosed during his deposition that he turned down a job offer from Gill.

`         Finally, Plaintiff argues in reply that there is no information that could be produced, citing the Gill Corporation’s Objections filed on December 1, 2022.  However, no such objections were filed with the Court.

Based on the foregoing, Plaintiff’s motion to quash is denied.

Dated:  March _____, 2023

Hon. Monica Bachner

Judge of the Superior Court