Judge: Robert S. Draper, Case: 21STCV41669, Date: 2022-08-04 Tentative Ruling

Case Number: 21STCV41669    Hearing Date: August 4, 2022    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

Plaintiff Mary Pat Dodson’s Motion to Quash Defendant’s Deposition Subpoena for Employment Records is DENIED.

FACTUAL BACKGROUND

This is an employment action. The operative First Amended Complaint alleges as follows.

Plaintiff Mary Pat Dodson (“Plaintiff”) was hired by Defendant City of Monterey Park (the “City”) as a literacy coordinator in September, 2019. (FAC ¶ 4.) She worked there until her termination on or around October 7, 2020. (Ibid.) While employed with the City, Plaintiff was subject to discrimination based on her age and disability. (FAC ¶ 7.)

On March 13, 2020, the Premises closed to public due to the COVID pandemic, and Plaintiff was sent home because ‘people of a certain age had to go home.” (FAC ¶ 10.)

Additionally, Plaintiff suffered from a disability as defined by the Fair Employment and Housing Act (“FEHA”). (FAC ¶ 11.) This disability made her exceptionally susceptible to COVID. (FAC ¶ 11.)

Nonetheless, in late March or early April 2020, Plaintiff was told she had to return to work, in person. (FAC ¶ 13.) Plaintiff provided the City with a doctor’s note stating that she was to work remotely while the pandemic continued. (FAC ¶ 14.) She submitted several similar notes over the coming months. (FAC ¶ 15.)

The City required that Plaintiff return to work in person in August, 2020. (FAC ¶ 39.) She was subjected to retaliation and discrimination. (Ibid.) Shortly thereafter, Plaintiff was terminated. (FAC ¶ 40.)

PROCEDURAL HISTORY

On November 12, 2021, Plaintiff filed the Complaint.

On January 28, 2021, Plaintiff filed the operative First Amended Complaint.

On March 1, 2022, the City filed an Answer.

On April 6, 2022, Plaintiff filed the instant Motion to Quash.

On July 22, 2022, the City filed an Opposition.

No Reply has been filed. 

DISCUSSION

      I.          Motion to quash

Plaintiff moves to quash the City’s subpoena requesting documents from Plaintiff’s former employer, the City of Glendora. The subpoena requested her application for employment, pre-employment examinations, performance evaluations, disciplinary records, and all documents related to requests for reasonable accommodation made by Plaintiff. (Motion at pp. 2-3; Exh. 1.) Plaintiff moves to quash pursuant to California Code of Civil Procedure section 1978.1.

Section 1978.1 states:

If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, 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.

Here, Plaintiff argues that the subpoena impinges on Plaintiff’s Constitutional right to privacy. (See Puerto v. Superior Court (2008) 158 Cal.App.4^th 1242, 1252-53 (holding disclosure of information in personnel files requires balancing of competing interests).) The competing interest test is described in Williams v. Superior Court (2017) 3 Cal.5^th 531, 552:

“The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. [Citation] The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations. [Citation]” (Williams v. Superior Court (2017) 3 Cal.5^th 531, 552. 

Plaintiff has established that she has a legally protected privacy interest in her personnel records. Next, Plaintiff argues that the requested records are not relevant to the instant suit because they address Plaintiff’s disability before her employment by the City, not as it presently exists. Finally, Plaintiff argues that the subpoena is unnecessarily broad, as it seeks employment records that could only be used by the City to attack Plaintiff’s character, and are not relevant to her requests for reasonable accommodations.

In response, the City argues that the records are relevant, as Plaintiff was employed in the exact same position with the City of Glendora, and received accommodations for her disability there. Second, the City notes that in Plaintiff’s discovery responses, she stated that the interactive process meeting notes from the City of Glendora support her claims and contentions in this litigation. Finally, the City argues that Plaintiff has a diminished expectation of privacy, as in her employment application, Plaintiff gave Defendant permission to contract her prior employers about her work history.

The Court finds that, though Plaintiff does have a right to privacy in her employment records, her permission for the City to contact her former employers evinces a diminished privacy expectation. More importantly, the fact that the City seeks records of reasonable accommodations provided by Plaintiff’s former employer, for Plaintiff’s same position, for Plaintiff’s same disability, makes the records extremely relevant to the instant litigation. Finally, the Court finds that it is not in the interest of justice to allow Plaintiff to use her prior accommodations as evidence of the City’s failure to provide accommodations, without granting the City full access to those same records.

With respect to Plaintiff’s claim that the documents produced might be used as impermissible character evidence, if this use it is impermissible they will not be used because Plaintiffs will object to their introduction at trial and that objection will be sustained. But whether or not the use is impermissible, and whether or not the objection will be sustained, are subjects for another day. That would be the day of trial.

Accordingly, Plaintiff’s Motion to Quash is DENIED.

DATED:  August 4, 2022

___________________________

Hon. Robert S. Draper

Judge of the Superior Court