Mycole Johnson v. Kaiser Foundation Hospitals, et al.

MOTION TO COMPEL PRODUCTION OF DOCUMENTS SUBPOENAED FROM THE EDD

 

MOVING PARTIES: Defendants Kaiser Foundation Health Plan, Inc. and Kaiser Foundation Hospitals

RESPONDING PARTY(S): Plaintiff Mycole Johnson; Third-Party California Employment Development Department

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

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.

Defendant now moves to compel the California Employment Development Department to produce documents pursuant to its subpoena.  Plaintiff and the third-party EDD opposed.

TENTATIVE RULING:

Defendant’s Motion to Compel is GRANTED.

Moving party to give notice, unless waived.  

DISCUSSION:

Motion to Compel Production of Documents

I. Objections to Evidence

Plaintiff filed a Sur-Reply  and objections to evidence submitted in Defendant’s Reply brief.  Plaintiff objects to Defendant’s reply as submitting “new evidence.” That new evidence consists almost entirely of Defendant’s counsels’ attestation of time spent on the motion in support of Defendant’s request for sanctions. “The general rule of motion practice…is that new evidence is not permitted with reply papers.”  (Jay v. Mahaffey (2013) 218 Cal. App. 4th 1522, 1537.) 

This Court is unaware of any legal authority which requires a court to rule on evidentiary objections on a motion, except as to a motion for summary motion/adjudication (CCP § 437c (q)] or a special motion to strike (CCP § 425.16 (b)(2)); see also, Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-949.)

As such, this court respectfully declines to rule on these objections.  This court is well aware of the rules of evidence, and to how much weight, if any, should be given to any of the proposed evidence.  Moreover, in the event that sanctions are awarded, this court will determine a reasonable award based on its experience and the totality of the circumstances—not on what Defendant’s counsel contends were reasonable. 

II. Analysis

Defendant moves to compel the California Employment Development Department (“EDD”) to produce documents pursuant to its subpoena served on December 1, 2022. Defendant had previously moved this court to compel Plaintiff to execute an authorization for the release of her EDD records. This court declined to do so in the absence of any authority permitting the same. Thereafter, Defendant subpoenaed the EDD. The EDD has not complied with the subpoena.  

The Subpoena seeks:

All DOCUMENTS PERTAINING TO the disability insurance records of PLAINTIFF during the time period of June 22, 2015 [when Plaintiff began working at KFHP] to the present, including but not limited to applications and requests for disability benefits and related questionnaires, physician/healthcare provider certifications and records received by the EDD, interview notes and memoranda reflecting communications between PLAINTIFF and the EDD, written communications between PLAINTIFF and the EDD, and records relating to the decision(s) on PLAINTIFF’S applications and requests for disability benefits.

(Semmer Decl., Exh. 11.)

Defendant contends the EDD documents are relevant because they may contain “representations regarding [Plaintiff’s] ability to work,” “the nature and extent of her disability,” and “submitted supporting medical documentation regarding the same.” (Mtn. 12: 12-13.) In addition, because Plaintiff seeks lost wages, the documents may show that Plaintiff was medically unable to work, in which case she may be unable to recover lost wages. (Id. 12: 14-22.) Defendant also argues the EDD documents are not absolutely privileged, and there are no less intrusive ways to obtain the documents.

Plaintiff does not oppose the motion except as to the portion seeking sanctions.  (See P’s Opp. 4: 8-9 [“Plaintiff did not file a motion to quash Defendant’s subpoena to the EDD and does not oppose their motion now.”].). She also contends that sanctions should be imposed against Defendants’ attorneys under Code of Civil Procedure sections 2023.10(h) and 2025.480(j) for failing to meet and confer with Plaintiff before moving for relief against the EDD, and for bringing the instant Motion without substantial justification.  

The EDD has opposed the motion, contending the information sought is confidential, privileged, and not discoverable. It cites to various portions of the California Unemployment Insurance Code which it contends “evince a legislative intent to bar disclosure even in the context of litigation.” (Opp. 4: 13-15.) Unemployment Insurance Code section 1094(a) provides that “the information obtained in the administration of this code is confidential, not open to the public, and shall be for the exclusive use and information of the director in discharge of his or her duties.” Section 1094(b) provides that “the information released to authorized entities pursuant to other provisions of the code shall not be admissible in evidence in any action or special proceeding, other than one arising out of the provisions of this code or one described in Section 1095.” Section 2111 similarly states that “information obtained in the course of administration of this division is confidential and shall not be published or open to public inspection in any manner.” 

In Crest Catering, the California Supreme Court found that the privileges set forth in the Unemployment Insurance Code were conditional and could be waived “(1) by an intentional relinquishment or (2) as ‘the result of an act which, according to its natural import, is so inconsistent with an intent to enforce the right as to induce a reasonable belief that such right has been relinquished.’” (Crest Catering Co. v. Superior Court of Los Angeles County (1965) 62 Cal.2d 274, 277.)

The court agrees with Defendant that the evidence sought is relevant to Plaintiff’s claims. Indeed, neither opposing party argues otherwise. It also appears there are no other ways to obtain the information.  

As to privilege, while no California state courts appear to have addressed the issue, federal district courts have found that bringing a lawsuit alleging disability discrimination waives the privilege in EDD documents.  (See Chavez v. Southwest Key Program, Inc. (S.D. Cal., Aug. 2, 2012, No. 11CV1878-CAB (NLS)) 2012 WL 12868258, at *2 [finding privileges waived with respect to EDD documents in disability discrimination case]; see also Schatz v. Flowers Baking Co. of Henderson, LLC (S.D. Cal. Mar. 17, 2021) 2021 WL 1017296, at *4 [“Plaintiff has disclosed his disability by bringing an action in which they are at issue, and so the gravamen of Plaintiff’s disability discrimination suit is inconsistent with the assertion of privilege over the EDD application for disability benefits, which waives the privilege.”].) While not binding on this court, their reasoning is persuasive.  This court therefore finds that Plaintiff’s bringing of this lawsuit waives her privilege in the EDD documents. 

Finally, to the extent that the parties have legitimate privacy concerns over the contents of the EDD documents, such issues may be handled consistent with the parties’ April 27, 2022, protective order.

Accordingly, Defendant’s Motion to Compel is GRANTED.

III. Sanctions

Defendant requests sanctions under CCP sections 2025.480(j) and 2023.030(a) for bringing and preparing the instant motion.  The court declines to award sanctions, finding that Plaintiff acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

IT IS SO ORDERED.

Moving parties to give notice, unless waived.  

Dated:   January 31, 2023 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

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.