Judge Randolph M. Hammock, Case 21STCV29323 2023-01-05 Tentative Ruling

Plaintiff Mycole Johnson brings employment and related tort claims against her former employers, Kaiser Foundation Hospitals and Kaiser Foundation Health Plan, Inc. Plaintiff, who is disabled, worked as a customer service representative. Plaintiff alleges that Defendants refused to offer reasonable accommodations and terminated her employment.

Plaintiff now moves to quash the deposition subpoena seeking employment records from Living Spaces Furniture, LLC. Defendants opposed. [FN 1]

Plaintiff’s Motion to Quash or Modify Subpoena is DENIED. The third party is ordered to turn over all documents consistent with the Subpoena.

A court may quash a subpoena entirely or partially, and issue an order to protect parties, witnesses or consumers from unreasonable or oppressive demands including violations of privacy. (Code Civ. Proc., § 1987.1.) Code of Civil Procedure section 1987.1 requires that a motion to quash a subpoena be “reasonably made,” but does not explicitly require that the parties first attempt to resolve the issue informally. (Hollander v. Superior Court (Cal. Ct. App., Aug. 16, 2007, No. B200615) 2007 WL 2326820, at *1.)

A motion to quash the production of documents or tangible things requires a separate statement. (Cal. Rules of Court, rule 3.13459(a)(5).) “[U]pon motion reasonably made by the party, judges may rule upon motions for quashing, modifying or compelling compliance with, subpoenas.” (Lee v. Swansboro Country Property Owners Ass'n (2007) 151 Cal.App.4th 575, 582-583.)

Plaintiff moves to quash the deposition subpoena served on her current employer, Living Spaces Furniture, LLC. The subpoena at issue seeks:

(1) Documents and/or materials relating to the job application process of PLAINTIFF, including resumes, curricula vitae, applications, lists and/or letters of references and/or notes of interviews.

(2) Documents and/or materials relating to the hiring processing of PLAINTIFF, including letters of offer/acceptance, new hire and employee forms, wage/salary forms, benefit forms, notification forms, and/or insurance forms.

(3) Documents and/or materials relating to PLAINTIFF' s evaluation or appraisal including evaluations, appraisals, praise, criticism, commendations, reprimands, notices, notes, self-appraisals, letters, grades, salary or wage changes, promotions, demotions, pass-overs, reassignments, disciplinary actions, and comments relating to employee's evaluation or appraisal.

(4) Documents and/or materials relating to PLAINTIFF's health including reports relating to accidents and injuries occurring during the term of employment, sick day records, medical records, doctor's notes, correspondence, health insurance claims, health insurance payments, workers' compensation claims, workers' compensation payments, disability claims, hospital records and notes relating to PLAINTIFF' s health.

(5) Documents relating to any formal or informal accommodations for disability(ies) and/or health conditions requested by PLAINTIFF and/or considered or provided by YOU to Plaintiff.

(6) Documents and/or materials relating to PLAINTIFF's attendance including attendance records, punch cards, calendars and/or notes related to employee's attendance.

(7) Documents and/or materials relating to PLAINTIFF's compensation including ledgers, deductions, checks, salary statements, wage statements and/or notes related to compensation. (Please do not produce any W-2s or tax records.)

(8) Documents and/or materials relating to the discharge of PLAINTIFF including resignations, terminations, lay-offs, firings, departures, failure-to-return-to-works and/or notes related to discharge.

(9) Any other personnel, payroll, and employment records from the first date of employment to the end of the employment, and/or present relating to PLAINTIFF.

(10) Documents reflecting any business or tax incentives, including but not limited to incentives in connection with hiring and/or employing disabled employees, YOU have received or will receive in connection with hiring and/or employing PLAINTIFF, including but not limited to any questionnaire and/or application materials YOU have submitted for a Work Opportunity Tax Credit (WOTC) or Disabled Access Credit.

(11) Documents reflecting YOUR corporate policy(ies) or practice(s) of hiring and/or employing individuals with disabilities.

Plaintiff objects to all eleven categories of information sought, arguing much of it “is not relevant or likely to lead to the discovery of relevant and admissible evidence and violates Plaintiff’s privacy rights.” (See P’s Separate Statement.) Accordingly, she asks this court to quash the subpoena, “or modify the subpoena in accord with a first look agreement” so that Plaintiff’s counsel can review the documents first. [FN 2] Plaintiff fails to identify with particularity which (if any) of the eleven categories are overbroad or irrelevant.

In opposition, Defendants argue all information sought “will allow them to investigate Plaintiff’s claims and beliefs (including her comparisons between Living Spaces and KFHP and her subjective beliefs regarding what constitutes reasonable accommodations), Plaintiff’s claimed damages, and Defendants’ defenses (including failure to mitigate, which involves an assessment of whether Plaintiff’s employment at Living Spaces was ‘substantially similar’).” (Opp. 11: 2-7.)

Here, Plaintiff has a recognized expectation of privacy in her employment records, though to an extent, Plaintiff has reduced that privacy interest by bringing this case. It also appears there are no feasible alternatives to obtain the documents sought.

When balancing Plaintiff’s privacy interests against Defendants’ interest in discovering documents that are particularly relevant to Defendants’ defense of the action, this court finds the balance shifts in favor of disclosure. The court agrees with Defendants that the categories are relevant and not overbroad. In addition to addressing Plaintiff’s current work conditions and the interplay with her disability, the documents sought are also relevant to Plaintiff’s performance as an employee—questions Plaintiff has put in issue by bringing this action.

Finally, the court notes that on April 26, 2022, the parties executed a Stipulation and Protective Order. In relevant part, the Protective Order allows any non-party witness who produces documents to designate documents “Confidential” or for “Attorneys’ Eyes Only.” Plaintiff fails to mention the Stipulation and Protective Order or why it is insufficient to protect her right to privacy.

Accordingly, Plaintiff’s Motion to Quash or Modify Subpoena is DENIED. The third party is ordered to turn over all documents consistent with the Subpoena.

In making an order pursuant to California Code of Civil Procedure 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).)

The Court declines to award expenses as the Motion was not made or opposed in bad faith or without substantial justification.

Judge of the Superior Court

FN 1 - It appears that this motion to quash may be substantially related to Defendants’ Motion to Compel which is currently calendared for 1/31/23. This ruling may moot that motion, and the parties should be prepared to discuss that issue at the hearing on this motion to quash.

FN 2- Plaintiff contends Defendants failed to respond to the proposed “first-look” agreement. On the other hand, Defendants contend Plaintiff filed this motion just two-days after proposing the agreement, and otherwise failed to meaningfully meet and confer.

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.