Judge Theresa M. Traber, Case Number: 21STCV40286, Date: 2024-02-27 Tentative Ruling

Judge: Theresa M. Traber, Case: 21STCV40286, Date: 2024-02-27 Tentative Ruling

Case Number: 21STCV40286 Hearing Date: March 19, 2024 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: March 19, 2024 TRIAL DATE: June 25, 2024

CASE: Angelica Duarte v. Amazon.com, Inc., et al.

CASE NO.: 21STCV40286

(1) MOTION TO QUASH SUBPOENA FOR THIRD PARTY BUSINESS RECORDS (x2);

(2) MOTION FOR LEAVE TO FILE A FIRST AMENDED ANSWER

MOVING PARTY: (1) Plaintiff Angelica Duarte; (2) Defendants Amazon.com Inc., Amazon.com Services LLC, and Prime Now, LLC

RESPONDING PARTY(S): (1) Defendants Amazon.com Inc., Amazon.com Services LLC, and Prime Now, LLC; (2) Plaintiff Angelica Duarte

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an employment discrimination action that was filed on November 20, 2021. Plaintiff alleges that she was harassed, penalized, and ultimately terminated for having a disability that caused her to miss work.

Plaintiff moves to quash two third party subpoenas for business records propounded to Cricket Wireless and Dajani Enterprises, Inc. Defendant moves for leave to file a first amended answer.

TENTATIVE RULING:

Plaintiff’s Motion to Quash Third-Party Subpoenas for Records is DENIED. This ruling is conditioned on Plaintiff paying $60 in filing fees within 10 days of this order.

Defendants’ Motion for Leave to File a First Amended Answer is GRANTED. Defendants are ordered to file a clean standalone copy of the First Amended Answer within 5 days of this order.

DISCUSSION:

Motion to Quash Third Party Subpoenas (x2)

Plaintiff moves to quash two third party subpoenas for business records propounded to Cricket Wireless and Dajani Enterprises, Inc.

Multiple Motions in One

Plaintiff has improperly moved to quash two separate subpoenas in a single motion. Multiple motions should not be combined into a single filing.¿(See¿Govt. Code,¿§ 70617(a)(4) [setting forth the required filing fee for each motion, application, or any other paper or request requiring a hearing];¿see¿also¿Weil & Brown, Civil Procedure Before Trial, [8:1140.1] at 8F-60 (The Rutter Group 2011)¿[“Motions to compel compliance with separate discovery requests ordinarily should be filed separately.”].)

In the interest of an efficient resolution of this dispute, the Court will consider both subpoenas as presented in a single motion. However, the Court will condition its ruling on the payment of an additional $60 in filing fees for the second motion.

Legal Standard

Code of Civil Procedure section 1987.1 provides:

If a subpoena requires the attendance of a witness or the production of books, documents, 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.

(Code Civ. Proc. § 1987.1(a).) There is no meet and confer requirement in section 1987.1. There is also no requirement for a separate statement when no response has been provided to the request for discovery. (Cal. Rules of Court Rule 3.1345(b)(1).) Furthermore, there is no requirement for a showing of good cause for production of documents in connection with a deposition subpoena. (Code Civ. Proc. § 2020.510(b); Terry v. SLICO (2009) 175 Cal.App.4^th 352, 358.)

Analysis

Plaintiff moves to quash a pair of subpoenas for business records propounded to Cricket Wireless and Dajani Enterprises, Inc. Defendants propounded these subpoenas on February 8, 2024, seeking:

All documents and records pertaining to the attendance, payment, and/or medical accommodation of Angelica Duarte (DOB: February 4, 1988, SS#: XXX-XX-4004) during her employment with you in 2019, including, but not limited to time records; attendance records; sign-in sheets; vacation, sick, PTO, or other time use and accruals; earning statements; W2 records; personnel file; and requests for medical accommodation or leave of absence and any decisions regarding the same.

(Plaintiff’s Exhs. 1-2.)

Plaintiff contends that these subpoenas are improper inquiries into Plaintiff’s records with current employers that are intended to harass Plaintiff and stigmatize her for suing her employer. Plaintiff cites a raft of federal district court cases stating in express terms that “[t]he stigma associated with the issuance of the subpoenas, as evidence of Plaintiff’s participation in a lawsuit against an employer, is . . . profound.” (Bickley v. Schneider Nat’l (N.D. Cal.) (2011 U.S. Dist. LEXIS 40674 at *9; see also Salas v. 3M (N.D. Ill.) (2008 U.S. Dist. LEXIS 124993 at *3-4.) These cases express the view that subpoenas searching for employment records from current or subsequent employers should be strongly disfavored if permitted at all. However, this principle is of little utility in this case, where, by Plaintiff’s own admission, she worked for Cricket and Dajani from July 2019 to October 2019, contemporaneous with many of the central events of this case. (Declaration of Genesis Guevara ISO Mot. ¶ 7.) The subpoenas at issue here are not propounded to Plaintiff’s current employer, which would suggest an effort to stigmatize and harass, but to past employers, and thus do not inherently carry such connotations.

Plaintiff also asserts that the document request is overbroad and not reasonably particularized, offering no explanation for why the categories of (1) attendance records; (2) payment; and (3) medical accommodations are not reasonably particularized. Contrary to Plaintiff’s assertion, these requests are not seeking “anything and everything” related to Plaintiff Duarte’s employment at Cricket and Dajani, but rather seeking documents which pertain to those categories.

Plaintiff next argues that the subpoenas seek information that is not relevant under the heightened standard for disclosure of constitutionally protected information.

In ruling on a privacy objection in the context of discovery, the party asserting a privacy right must establish a legally protected privacy interest. (Williams v. Superior Court (2017) 3 Cal.5th 531, 552.) The party asserting a privacy right must also establish an objectively reasonable expectation of privacy in the given circumstances. (Id.) Further, the party asserting a privacy right must establish a threatened intrusion that is serious. (Id.) The Court need not proceed to the fourth step of balancing competing interests if all three of the above are not satisfied. (Id. at 555.) If the Court reaches the fourth step, the Court must balance these competing considerations: The party seeking information may raise whatever legitimate and important countervailing interests disclosure may serve. (Id. at 552.) The party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. (Id.) Courts may not require the party seeking discovery to demonstrate a “compelling need” simply because discovery of any facially private information is sought. (Id. at 556-557.) When a privacy interest is asserted, the party seeking production must show that the information sought is directly relevant to a cause of action or a defense. (Harris v. Superior Court (Smets) (1992) 3 Cal.App.4th 661, 665, citing Britt v. Superior Court (1978) 20 Cal.3d 844, 859-62.)

Existing precedent is clear that Plaintiff has a legally protected interest in her personnel records. (See, e.g., Harding Lawson Associates v. Superior Court (1992) 10 Cal.App.4th 7, 10.) These cases hold generally that “personnel records and employment history are within the scope of the protection provided by the state and federal Constitutions.” (San Diego Trolley, Inc. v. Superior Court (2001) 87 Cal. App. 4th 1083, 1097, disapproved of on other grounds in Williams, supra, at p. 557, fn. 8.) That said, Plaintiff provides no basis for the conclusion that she has a reasonable expectation of privacy in the specific documents at issue in this case. Further, Plaintiff provides no basis to support a conclusion that the threatened intrusion is serious.

What is more, these records bear direct relevance to the matters at hand on their face, despite Plaintiff’s arguments to the contrary. Plaintiff’s work attendance, whether her disability was reported to her other employers, and what accommodations were required and appropriate for that disability all featured extensively in the Motion for Summary Judgment recently heard by the Court. (See March 8, 2024 Ruling on Matter Taken Under Submission.) It is not difficult to see how Plaintiff’s attendance records and requests for accommodations at a past concurrent employer are relevant to those disputes. As Defendants argue in opposition, these materials have probative value in that a disability which hampered Plaintiff’s attendance and required accommodations at one job would likely be reflected in Plaintiff’s concurrent employment history at a second job. Moreover, Plaintiff herself concedes that compensation records are relevant to the affirmative defense of Failure to Mitigate. (See Motion pp. 7:28-8:1.)

Finally, turning to Plaintiff’s objection that these records seek impermissible character evidence, Plaintiff again offers no basis for that position other than the conclusion that these materials are not relevant to any dispute in this case and improperly seek Plaintiff’s entire employment file. Neither conclusion is correct.

In sum, Plaintiff has not demonstrated that these subpoenas are irrelevant, overbroad, an improper invasion of privacy, or harassing.

Conclusion:

Accordingly, Plaintiff’s Motion to Quash Third Party Subpoenas for Records is DENIED.

Motion for Leave to File First Amended Answer

Defendant moves for leave to file a First Amended Answer.

Legal Standard

The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading. (Code Civ. Proc. § 473(a)(1).) Amendments of pleadings may be permitted up to and during trial, absent prejudice to the adverse party. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) Judicial policy favors liberal exercise of the discretion to permit amendment of the pleadings. (Royal Thrift & Loan Co. v. County Escrow, Inc. (2004) 123 Cal.App.4th 24, 41-42.) Absent prejudice to the Plaintiffs, a denial of leave to amend is an abuse of discretion. (Kittridge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.) At the same time, “if a party seeking amendment has been dilatory and/or the delay has prejudiced or will prejudice the opposing party, the trial court in its discretion may deny leave to amend.” (M&F Fishing, Inc. v. Sea-Pac Ins. Managers, Inc. (2012) 202 Cal. App. 4th 1509, 1534.)

A motion to amend a pleading before trial must meet the following requirements:

(a) Contents of motion

A motion to amend a pleading before trial must:

(1) Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments;

(2) State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and

(3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.

(b) Supporting declaration

A separate declaration must accompany the motion and must specify:

(1) The effect of the amendment;

(2) Why the amendment is necessary and proper;

(3) When the facts giving rise to the amended allegations were discovered; and

(4) The reasons why the request for amendment was not made earlier.

(Cal. Rules of Court Rule 3.1324.)

Contents of Motion

Defendants included a copy of the proposed Amended Answer as an attachment to the Declaration of Hillary Marks in support of the Motion. (Declaration of Hillary Marks ISO Mot. Exh. L.) Defendants have therefore substantially complied with California Rule of Court 3.1324(a)(1). The notice of motion also indicates which allegations are proposed to be added or deleted by page and line number. Defendants have therefore also substantially complied with Rule 3.1324(a)(2) and (3).

Supporting Declaration

Defendants do not directly reference the requirements of Rule 3.1324(b) either in the Motion itself or in the supporting declaration. However, close examination of the papers demonstrates that Defendants set forth the relevant information. Both the Notice of Motion (p.2:10-11) and the Marks Declaration (¶ 13) expressly state that the purpose of the motion is to plead an “after-acquired evidence” affirmative defense. (See, e.g., Salas v. Sierra Chem Co. (2014) 59 Cal.4th 407, 430-31.) Defendants have thus demonstrated the effect of the amendments as required by Rule 3.1324(b)(1). Further, the pleading of an affirmative defense based on subsequently discovered information is necessary and proper on its face, thus satisfying subsection (b)(2).

Defendants state that the new affirmative defense is based on discovery conducted in August 2023 which they contend establishes that Plaintiff was not hospitalized in October 2019 and did not experience seizures at all in 2019, contrary to Plaintiff’s representations to Defendants. (See Marks Decl. ¶¶ 9-12.) Defendants state that they refrained from pursuing this motion while the parties were engaged in mediation. (Marks Decl. ¶ 14.) Mediation was held on November 21, 2023, but was unsuccessful. (Id.) The parties met and conferred regarding amendment of the answer on December 18, 2023, via email, but Plaintiff refused to stipulate to amendment of the answer. (¶ 15.) Defendants have thus demonstrated when the facts giving rise to this amendment were discovered, and have explained why leave to amend was not sought earlier. Defendants have thus satisfied subdivision (b)(3) and (b)(4).

Plaintiff’s Opposition

Plaintiff argues in opposition that leave to amend should not be granted because Defendants unreasonably delayed in seeking amendment. Plaintiff characterizes this motion as the product of a two-year delay from the filing of the original answer in January 2022. However, as Defendants state, the evidence which was after-acquired that gives rise to the “after-acquired evidence” defense was uncovered in August 2023, not January 2022. This is a six-month delay, not a two year delay. Further, Defendants have accounted for their delay in bringing this motion, and the Court is not persuaded that Defendants were not diligent.

Plaintiff also contends that the evidence cited does not actually support the affirmative defense that Defendants seek to allege. Whether or not this is so is beyond the scope of this motion, and the Court declines to address the merits of the defense here.

Finally, Plaintiff contends that she will be prejudiced by the introduction of a new affirmative defense at such a late date after the closure of discovery. The Court is not persuaded. The affirmative defense pertains to evidence that has already been elicited regarding Plaintiff’s medical condition—information which has already been the subject of discovery and litigation, and which Plaintiff is more likely to possess than Defendants. Moreover, Plaintiff is not well-positioned to argue that trial will be delayed by the introduction of a new affirmative defense when Plaintiff herself sought and obtained a trial continuance on March 12, 2024.

Conclusion

In sum, the Court finds that Defendants have satisfied the procedural requirements for amendment of the answer, and that Plaintiff has not shown why leave to amend should not be extended.

Accordingly, Defendants’ Motion for Leave to File a First Amended Answer is GRANTED.

CONCLUSION:

Accordingly, Plaintiff’s Motion to Quash Third-Party Subpoenas for Records is DENIED. This ruling is conditioned on Plaintiff paying $60 in filing fees within 10 days of this order.

Defendants’ Motion for Leave to File a First Amended Answer is GRANTED. Defendants are ordered to file a clean standalone copy of the First Amended Answer within 5 days of this order.

Moving Parties to give notice.

IT IS SO ORDERED.

Dated: March 19, 2024 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@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.