Judge Thomas D. Long, Case Number: 23STCV05191, Date: 2025-03-25 Tentative Ruling

“‘[F]or discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement’ and ‘[a]dmissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence.’ These rules are applied liberally in favor of discovery . . . and (contrary to popular belief) fishing expeditions are permissible in some cases.” (Cruz v. Superior Court (2004) 121 Cal.App.4th 646, 653, citations omitted.) The Court must “balance the public need against the weight of the privacy right,” and only serious invasions of privacy will bar discovery. (Crab Addison, Inc. v. Superior Court (2008) 169 Cal.App.4th 958, 966.) There is not an egregious invasion of privacy every time there is a request for private information, and courts must “place the burden on the party asserting a privacy interest to establish its extent and seriousness of the prospective invasion.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 557.)

On January 22, 2025, Plaintiff German Cortez served a Deposition Subpoena for Production of Business Records on Otkupman Law Firm ALC. On February 13, 2025, Defendant Brinderson Construction Inc. filed a motion to quash the subpoena.

The subpoena requests “All nonprivileged documents related to LA Sup. Ct. Case. No. BC654314, Dear v. Brinderson Constructors (e-copies permitted).”

Defendant argues that the subpoena is exceedingly overbroad, snot reasonably particularized, not tailored to the relevant individuals and issues in this case, and unduly burdensome. (Motion at p. 7.) Defendant also argues that it is not clear what relevant documents Plaintiff thinks he can obtain from the third party that were not already publicly filed and/or that Plaintiff cannot obtain from the parties in this matter directly, and the unrelated matter included an exchange of highly confidential and privileged documents that have no relevance to this matter and/or that are not discoverable in this matter. (Ibid.)

As Defendant notes, the subpoena does not describe specific documents or categories of documents, and it appears to be “a textbook fishing expedition.” (Motion at p. 11.) Plaintiff here alleges harassment and retaliation directed at “individuals of Hispanic heritage” and Plaintiff’s Mexican-American heritage, beginning in December 2019. (See, e.g., Complaint ¶¶ 74-75.) Case No. BC654314 involved allegations between 2014 and 2016, for an African American plaintiff who worked in a different location, in a different position, and under a different supervisor. (Motion at p. 13.)

Plaintiff argues that, although the subpoena does not describe the specific types of documents, the subpoena is not overbroad. (Opposition at p. 6.) Plaintiff attempts to analogize: “[I]f Mr. Cortez’ lawsuit was about insects and issued a subpoena for all ants, Brinderson would argue that the subpoena was not reasonably particularized because it did not specify whether Mr. Cortez was referring to black ants or red ants, big ants or small ants.” (Ibid.) According to Plaintiff, “There exists a culture of racism and indifference towards the racism by Brinderson and Marathon at the Los Angeles refineries. The racism involved is institutional— perhaps akin to prison yard rules.” (Ibid.) Plaintiff acknowledges that the plaintiffs, supervisors, and jobs in the two cases are different, but “[c]ontinuing Mr. Cortez’ illustration, one was a red carpenter ant; the other was a banded sugar ant.” (Ibid.)

The Court agrees with Defendant that a request directed at Defendant’s then-counsel for “[a]ll nonprivileged documents related to” a different case is overbroad and irrelevant. The “me too” doctrine entitles a plaintiff to present evidence that other employees of the same protected class had been subjected to similar discrimination, but it does not entitle a plaintiff to present evidence about other employees outside of the plaintiff’s protected class. (Hatai v. Department of Transportation (2013) 214 Cal.App.4th 1287, 1298.) Not only are the protected classes different here, but the locations, jobs, bad actors, and supervisors are different. The only shared feature is the corporate employer. That is insufficient to make the documents relevant and discoverable.

On February 24, 2025, Defendant filed a motion to compel a medical examination of Plaintiff.

A party must obtain leave of court when seeking to obtain discovery by a physical examination or a mental examination. (Code of Civ. Proc., § 2032.310, subd. (a).) A motion for an examination shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and specialty, if any, of the person or persons who will perform the examination. (Code Civ. Proc., § 2032.310, subd. (b).) The Court shall grant the motion only for good cause shown. (Code Civ. Proc., § 2032.320, subd. (a).)

Plaintiff alleges that he suffered “physical injuries, pain and suffering, mental anguish, and emotional distress” and “humiliation, shame, despair, embarrassment, depression, and mental pain and anguish.” (Complaint ¶¶ 68, 77, 86, 94, 103, 108, 116.) In discovery responses, Plaintiff further identified “[e]motional distress, anxiety, stress, and testicular trauma,” “[p]hysical pain, mental suffering, loss of enjoyment of life, physical impairment, inconvenience, humiliation,” and “Emotional injury[,] Stress[,] Testicular trauma.” (Swanson Decl., Exs. 2-3.) Plaintiff also testified about being “stressed all of the time,” having a hard time “reliv[ing] all of this,” and lacking a desire to do certain things. (Swanson Decl., Ex. 4.)

Defendants’ motion complies with Code of Civil Procedure section 2032.310, and the Court finds there is good cause to order a mental examination.

The motion was not accompanied by a proposed order, but Defendant and Plaintiff each provide a copy of their unexecuted draft stipulations. (Swanson Decl., Ex. 20; Aarons Decl., Ex. B.) The draft stipulations are the result of many emails between counsel and revisions since December 2024. (See Swanson Decl. ¶¶ 6-8 & Exs. 5-19.)

According to Defendant, the remaining issues include questions related to “1) Plaintiff’s developmental history; 2) Plaintiff’s substance use, thereby preventing Dr. Rosenberg from inquiring into Plaintiff’s history of substance abuse; 3) consensual sexual relations that Plaintiff identifies as a source of stress, conflict, or emotional trauma; and 4) Plaintiff’s trauma as an adult, including sexual trauma as an adult.” (Motion at p. 2.)

Plaintiff objects to the phrase “independent mental examination” or “IME” in the stipulation and instead proposes using “Defense Mental Examination” or “DME.” (Opposition at p. 3.) Plaintiff also proposes rephrasing parts of Paragraph 1 (length of examination), Paragraph 5 (reciprocal exchange of testing data), Paragraph 6 (scope of exam), Paragraph 15 (cancellation fee), and Paragraph 17 (waiver of rights). (Opposition at pp. 3-6.)

In reply, Defendant agrees to some of Plaintiff’s proposals, including the DME terminology and reciprocal exchange of testing data.

After review of both draft stipulations, the Court orders that the mental exam shall proceed under the following proposed terms:

1. References to “Defense Mental Examination” or “DME” instead of “independent mental examination” or “IME.”

Defendant is ordered to submit a proposed order containing these versions of the terms and the new examination date no later than April 4, 2025.

The Motion to Compel Independent Medical Exam is CONTINUED to April 11, 2025 at 8:30 a.m. No additional merits briefing or argument is permitted.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court