Judge: Stephen I. Goorvitch, Case: 21STCV11917, Date: 2022-09-01 Tentative Ruling

Case Number: 21STCV11917    Hearing Date: September 1, 2022    Dept: 39

Krystal Tivis v. Khatchaturian & Zargarian DDS, Inc.

Case No. 21STCV11917

Motion to Quash Deposition Subpoena

            Plaintiff Krystal Tivis (“Plaintiff”) filed this employment action against Khatchaturian & Zargarian DDS, Inc., doing business as Smile Dental Group (“Defendant”).  Defendant served a subpoena to take the deposition of the person most knowledgeable and/or Evelyn Orellana to testify about “the placement of [Plaintiff] as part of the Dental Assistant program at Career Care Institute with Gateway Dental Group . . . as a student intern following her assignment to [Defendant] and the reasons for the change in assignment.”  (Declaration of Colleen M. Mullen, Exh. #3.)  Plaintiff moves to quash this subpoena. 

If a subpoena requires deposition testimony or the production of documents, the Court may quash the subpoena entirely or modify it.  (Code Civ. Proc., § 1987.1, subd. (a).)  Defendant alleges that Plaintiff had attendance issues and difficulty interacting with patients, at one point complaining that Defendant’s office was located in a “ghetto.”  Now, Defendant seeks information concerning Plaintiff’s prior placement at a different dental office, where there allegedly were similar problems.  Defendant obtained Plaintiff’s student records—to which Plaintiff apparently did not object—and there was a reference to Plaintiff having received a reprimand because she was absent twice and left work early on two occasions.  Moreover, Plaintiff allegedly refused to assist with a teeth-cleaning on a child of African-American decent, saying: “I’d rather watch because you know how they can be.”  The comment was interpreted as being derogatory against people of color. 

            Defendant is entitled to take the depositions at issue in order to develop a defense that Plaintiff was terminated for non-discriminatory reasons.  The reasons for Plaintiff’s termination at the prior dental office are directly relevant to this case and therefore discoverable.  Plaintiff cannot claim a privacy interest because she has put the matter squarely at issue in this litigation.

(See Britt v. Superior Court (1978) 20 Cal.3d 844, 855-856.) 

            Plaintiff argues that the evidence is inadmissible under Evidence Code section 1101.  As an initial matter, whether evidence is admissible is not relevant in determining whether it is discoverable.  But putting that aside, in fact, this evidence is admissible.  Plaintiff testified that she did not, in fact, make the statement that is attributed to her:

            Q:        Do you recall being asked to do a cleaning on an African-American child and saying, “I’d rather watch because you know how they can be?

            A:        I don’t recall exactly what was said, but I would never say anything like that in that way, derogatory like that.

(Declaration of Colleen M. Mullen, Exh. #1, pp. 82-83.)  Therefore, the evidence is admissible for purposes of impeachment of this testimony, as well as any testimony at trial that she did not reference Defendant’s office as being in a “ghetto,” per Evidence Code section 1101(c).  The evidence may also be admissible under Evidence Code section 1105. 

            Based upon the foregoing, Plaintiff’s motion to quash is denied.  Defendant’s counsel may lodge a proposed order if necessary to facilitate compliance with the subpoena.  Plaintiff’s counsel shall provide notice and file proof of such with the Court.