Judge: Theresa M. Traber, Case: 22STCV35880, Date: 2023-09-19 Tentative Ruling

Case Number: 22STCV35880    Hearing Date: November 14, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     November 14, 2023               TRIAL DATE: June 25, 2024

CASE:                         Hassan Washington v. Kjar, McKenna, & Stockalper, et al.

CASE NO.:                 22STCV35880           

MOTION TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF DOCUMENTS FROM YUKEVICH CAVANAUGH

MOVING PARTY:               Plaintiff Hassan Washington

RESPONDING PARTY(S): Defendant Kjar, McKenna & Stockalper, LLP

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action for employment discrimination that was filed on November 14, 2022. Plaintiff alleges that he was subjected to extensive discrimination based on his race, disability, and sexual orientation.

Plaintiff moves to quash a deposition subpoena for production of documents from Yukevich Cavanaugh

TENTATIVE RULING:

            Plaintiff’s Motion to Quash Subpoena for Records is DENIED.

            Defendant’s request for sanctions is GRANTED in the amount of $1,740 against Plaintiff and his counsel, jointly and severally.

DISCUSSION:

            Plaintiff moves to quash a subpoena for documents propounded by Defendant Kjar, McKenna, & Stockalper, LLP, to Yukevich Cavanaugh.

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 subpoena propounded to a former employer, Robert Half International, Inc., by Defendant Kjar, McKenna, & Stockalper, LLP. Defendant served the subpoena on Yukevich Cavanaugh and on Plaintiff on June 1, 2023. (Plaintiff’s Exh. 1.) Attachment 3 to the Subpoena contains the single category of documents requested, and states that it is seeking the “entire Washington file including, but not limited to, settlement or severance agreements, demand letters, reasons for termination, and personnel file.” (Id. Exh. 1 Attach. 3.) Plaintiff contends that this category is overbroad, irrelevant, unduly burdensome, invades Plaintiff’s privacy, seeks documents which are protected from disclosure, and seeks documents which would not be admissible at trial.

            At the outset, the Court notes that Defendant, in opposition, expressly disclaims seeking financial, tax, or commercial records from Yukevich Cavanaugh, and thus Plaintiff’s objections on this basis appear to be moot. Further, as to Defendant’s contentions that certain evidence sought would not be admissible at trial, such an argument is insufficient to demonstrate that the materials sought are not discoverable. Evidence may be discoverable if it is reasonably calculated to lead to admissible evidence, whether or not it is itself admissible. (Code Civ. Proc. § 2017.010.)

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.)

            With respect to Plaintiff’s privacy objections, Plaintiff first contends that he has a legally protected interest in his personnel records, relying principally on the provision that a subpoena is required for their disclosure under Code of Civil Procedure section 1985.6(e). Plaintiff cites no authority standing for the position that his personnel records are protected from discovery once a subpoena is issued. Plaintiff has thus failed to demonstrate a legally protected privacy interest with respect to those records. That said, with respect to Plaintiff’s medical records, it is well-settled that a party has a legally protected privacy interest. (Board of Med. Quality Assurance v. Gherardini (1979) 93 Cal.App.3d 669, 679.) However, although Plaintiff asserts that there is a reasonable expectation of privacy, despite having placed his mental and physical health at issue by claiming disability discrimination, Plaintiff provides no basis for that conclusion. (See City and County of San Francisco v. Super. Ct. (1951) 37 Cal.2d 227, 232 [reduced expectation of privacy in medical records when plaintiff places medical condition at issue].) Further, Plaintiff provides no basis to support a conclusion that the threatened intrusion is serious. Plaintiff has therefore failed to carry his burden to justify these objections.

            Finally, with respect to Plaintiff’s overbreadth and relevance objections, Plaintiff merely asserts that the category of documents sought is impermissibly broad and irrelevant. Plaintiff likewise asserts without evidence that the subpoena is unduly burdensome to Yukevich Cavanaugh. As the moving party, Plaintiff bears the burden of justifying his objections to this subpoena.

            In sum, the Court is not persuaded by Plaintiff’s objections to this subpoena, and therefore does not find that an order quashing the subpoena is warranted.

Sanctions

            Both parties request sanctions on this motion.

The Court has discretion to award reasonable expenses, including attorney’s fees, incurred in making or opposing a motion under Section 1987.1 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 (a).)

As the prevailing party, Defendant is entitled to reasonable attorney’s fees incurred in opposing this motion. Defendant filed a consolidated opposition to four subpoenas that are the subject of separate motions to quash, including this one currently before the Court. Defendant requests $7,360 for the combined opposition, representing 17.4 hours of attorney time at a rate of $400 per hour, plus an additional anticipated hour, against Plaintiff and Plaintiff’s counsel, jointly and severally. (Declaration of Olga G. Peña ISO Opp. ¶ 2.) In ruling on the previous motion, the Court awarded sanctions reflecting 25% of the attorney’s fees incurred in preparing the opposition. A similar award is appropriate here. The Court will therefore award $1,740 in attorney’s fees, representing 25% of the fees actually incurred.

CONCLUSION:

            Accordingly, Plaintiff’s Motion to Quash Subpoena for Records is DENIED.

            Defendant’s request for sanctions is GRANTED in the amount of $1,740 against Plaintiff and his counsel, jointly and severally.

            Moving Party to give notice.

IT IS SO ORDERED.

Dated:  November 14, 2023                            ___________________________________

                                                                                    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.