Judge Randolph M. Hammock, Case 21STCV39265 2022-10-26 Tentative Ruling

This is a FEHA and wage and hour action. Plaintiff Vi Khuong (“Khuong”) alleges that Defendants misclassified her as an exempt worker when she was in fact an hourly employee. Plaintiff also alleges she endured various forms of harassment and violence from her employer. Defendants cross-claimed against Plaintiff and her business, RDC Nail Salon, based on alleged misrepresentations and misuse of Defendants’ property. Defendants now move to quash Plaintiff’s deposition subpoena for production of business records directed to the Beverly Hills Police Department. Plaintiff opposed.

Defendants’ Motion to Quash is GRANTED in part, as modified herein. The Beverly Hills Police Department is ordered to turn over all documents from January 1, 2016, to present. The subpoena is otherwise unmodified.

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. [FN 1] (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.)

Defendants move to quash the Deposition Subpoena for Production of Business Records dated July 26, 2022, issued by Plaintiff and directed to the Beverly Hills Police Department. The Subpoena seeks:

Defendants argue the subpoena is overbroad in time and scope, and that it seeks irrelevant and inadmissible information and documents. Defendants argue these requests “cover any and all police reports, from any time period, which even mention Dr. Kohan’s name, including potential police reports about situations completely unrelated to the allegations in this case.” (Mtn. 4: 25-27.) Defendants further note that Plaintiff only worked for Defendant between December 2020 to May 28, 2021—a time-period after when the 2020 police report occurred. Defendants argue the subpoena seeks inadmissible character evidence against Dr. Kohan “as evidence that Dr. Kohan allegedly engaged in other acts of misconduct to support her allegations of Dr. Kohan’s purported misconduct in this case.” (Id. 5: 16-19.) Finally, Defendants argue discovery of the police reports would invade the privacy of third-party individuals named in them.

In opposition, Plaintiff contends the discovery is relevant to the allegations in the Complaint. Plaintiff contends that on March 16, 2021, Dr. Kohan was charged with a crime for domestic abuse against a coworker, identified in public filings as Myria H. (Stiller Decl., ¶ 4; Exh. A [Misdemeanor Complaint].) The Misdemeanor Complaint asserts that Dr. Kohan “willfully inflicted corporal injury resulting in a traumatic condition upon MYRIA H., who was someone with whom the defendant had a dating relationship.” (Stiller Decl., Ex. A.) Notably, the alleged victim there was also an employee of Defendants’, and that individual is also the subject of some the violence allegations made in the Complaint. (Compl. ¶¶ 2, 32, 39, 50–51, 53–56.) The Complaint includes serious allegations, including causes of action for gender violence, sexual harassment, sex discrimination, and sexual battery.

The court agrees with Plaintiff that the discovery sought is relevant to the allegations in the Complaint. This could show that Defendants had a practice of discrimination and retaliation against women. Much of Defendants’ argument against disclosure is based on the assertion that such evidence will not be admissible at trial. Whether that position is accurate is irrelevant at this stage. Even if the records themselves are not admissible, Plaintiff has shown the records sought are at the very least “reasonably calculated to lead to the discovery of admissible evidence.” (CCP § 2017.010.)

Regarding the right of privacy of third parties, the only known third party who may be named in the police report is already named in the Complaint. Under the circumstances, the court finds the balance weighs in favor of disclosure.

Finally, the court does agree, however, that the temporal scope of the subpoena is overbroad. The subpoena seeks “all documents,” but with no time limitation. The court will modify the subpoena to require the production of documents only from the five-year-period preceding Plaintiff’s employment with Defendants. Accordingly, only documents from January 1, 2016, onward need be produced.

Accordingly, the Motion to Quash is GRANTED in part, as modified herein. The third parties are ordered to turn over all documents from January 1, 2016, to present. The subpoena is otherwise unmodified.

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).)

Judge of the Superior Court

FN 1 - Defendant has not submitted a separate statement, incorrectly believing one was not required here. Be that as it may, the court exercises its discretion to address the motion on its merits.

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.